An Essay on the Trial By Jury

history and the language of the Great Charter of English Liberties, to which we are to look for a true defi

TIO

ry of Mag

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 t

mands 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 t

tive 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 b

cumstances, that the G

es was

ed him, as the price of his throne, to pledge himself that he would punish no freeman for a viol

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 contr

mply 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

t 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

e 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 re

y times; and the people of England have always had a traditionary idea that it was of some value as a guaranty against oppression. Yet th

TIO

age of Ma

that is established by its history, viz., that it is the ri

risonetur, aut disseisetur, aut utlagetor, aut exuletur, aut aliquo modo destruatur; nec super eum

nd confirmed by Edward I, (1297,) (which charter is now considered the basis o

, vel liberis consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec sup

n of these words, at the p

or free customs, or outlawed, or exiled, or in any manner destroyed, nor will we (the king)

ibimus, nec sup

lt 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 render

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

emus." 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, descri

"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 p

mean "nor shall he be condemned before any other commissioner or judge whatsoever."? Clearly there is nothing. The whole rendering is a sheer fab

icial 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

rpose of giving an opportunity for conference, arbitration, and reconciliation. between him and his barons. It was to have force until the matters in controversy

capiemus, nec disseisiemus nec super eos per vim vel per arma ibimus nisi per legem regni nos

or their men, nor disseize them, nor will we proceed against them by force or by arms, unless by the law of

ter is given in a n

on to the

g clause of Magna Carta, on the principle tat laws and charters on the same subject a

the Great Charter of Liberties," demanded of the king by the barons, and agreed to by the king, under seal, a fe

ut1agetur nec exuletur nec aliquo modo destruatur nec rex eat vel mitt

outlawed, nor exiled, nor in any manner destroyed, nor shall the king proceed or send (any

s, in Magna Carta, is thus made certain, as follows, "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 translat

judicium par

ready too plain to be susceptible of corroboration,) by the true

e out, for the present, the word lega

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 senten

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

nst 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. Inde

thing 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

xecution. And punishing a man by, or according to, the sentence or judgmen

or 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,

arian suorum means according to the sentence of his peers; thus imp

were to fix the sentence, it would be found in

ter 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 amer

nts 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 migh

gal

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

he king) should require the peers to pronounce; for in that case the sentence would not be the sentence of the peers, but only the sen

egem t

explained, viz., "per legem ter

hat this means the

w Hale

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 termine

maintain.This fact is recognized by a statute made at Westmin

g: Because that by divers complaints made to us, we have perceived that the l

the law of the land,mentioned in Magna Carta, was the common, ancient, fundamental law of the land, which the kings were bound by

ore, 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

ction 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, w

wer 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

allowed of any other

egem terrae did not allow of some ot

ttle, 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 Ma

therefore, it may be asserted that Magna Car

ed sentence to be fixed o

the question of guilt was determined by the jury, the amount of punishment may not ha

y 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 constitutions of the offenders, and the circumstances of temptation or provocation. A

the rial, and that the punishment was to be fixed by the discretion of the pee

by a jury, Magna Carta intended that the punishment should be fixe

e common law fixed the punish

hat the jury fixed the sentence in some cases tried by them; and if they fixed the sentenc

arons 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 a

ine. 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 all

a, 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 k

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, th

asion 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 o

, the government,) to do in the case of an accused person, if it neither authorized an

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 anythi

t 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 o

nal cases. It was simply, that they would neither convict the innocent, nor acquit the gui

e right of appeal to the king and his judges, and to demand either a new trial, or an acquittal, if the trial or conv

is 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.,

ved 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

l, 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 t

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 pro

n to answer but by due p

ces, or thing of record, or by due process, or by writ or

legem terrae are corroborated by the following sta

or limb, nor his land, tenements, goods, nor chattels, seized into the king's hands, agains

one shall be taken by petition, 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;

tenement, nor taken, nor imprisond, nor disinherited, nor put to death, without

ocess and writ original, according to the old law of the land. And if anything from henceforth be do

urts; 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 constitution of the

L should be rendere

d 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 pari

y, 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 fre

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 secundu

s,) this chapter of Magna Carta will then read that no freeman shall be arrested or

r 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 t

d seem to exclude all trials except trial by jury, an

pon 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 ne

f Magna Cart, so far as it relates to criminal case

r 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 ex

e, Appe

story of the En

icae, (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,

on of, a parliament, unless the provision, (Ch. 37,) that "Escuage, (a military contribution,) from henceforth shall be taken l

t, to wit, "The Archbishops, Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all others w

g King of England, was wont to invite, oftenest about Christmas time, his subordinate Kinglets, Barons as he called them, to give him the pleasure of their company for a week or two; there, in earnest conference all morning, in freer talk over Christmas

e, Appe

l be more fully es

, he sent the Earl of Pembroke and other faithful messengers to them, to let them know he would grant them the laws and liberties they desired." * * But after the charter had been granted, "the king's mercenary soldiers, desiring war more than peace, were by their leaders continually whispering in his ears, that he was now no longer king, but the scorn of other princes; and that it was more eligible to be no king, than such a one as he." * * He applied to the Pope, that he might by his apostolic authority make void what the barons had done.* * At Rome he met with what success he could desire, where all the transactions with the barons were fully repr

; that they all agreed that he was effectually stripped of power. Yet the legislative power had not been tak

, at that time, al

o are the words nec super eum ibimus, to be understood,) nor before any other commissioner or judge whatsoever, and so are the words nec supe

he king, before proceeding to any executive action, will take notice of "the law of the land," and of the legality of the judgment of the peers, and will execute upon the prisoner nothing except what the law of the land authorizes, and no judgments of the peer

'a Law Tracts, page

llection of Charters, and are also printed with the statutes of

eaning may be learned from John himself, who the next year promised by his letters patent,... nec super eos per vim vel per arma ibimus, nisi per legem regni nostri, vel per judicium parium su

ed force on the lands, and against the castles, of all whom he knew or suspected

ounced by the court, upon the matter contained in the recor

justice or other competent tribunal, as the result of the proceedings

* Sentence of a judge

decision in gener

a king, or other power, either by their own mouth, or by that of their judges and

ounced in any case, civil orcriminal, by the jud

r, for default in the weight of his bread, " debeat amerciari vel subire judicium pillorie;" that is, ought to be amerced, or suffer the punishment, or judgment, of the pillory. Also that a brewer, fo

uncertain date," (but

,) provide, in chapt

ory." See 1 Rughead's

of the Re

in arrest thereof) follows upon conviction f being the pronouncing of that punishment which is expressly ordai

gment is the guide and directio

n the northern nations of Europe generally, long before Magna Carta, and probably from time

me of an estate held by a feudal

an was the means of living i

a villein's ploug

d that of his wife and children). And since the disuse of such inquest, it is never usual to assess a larger fine than a man is able to pay, without touching the implements of his livelihood; but to inflict corporal punishment, or a limited imprisonment, instead of such a fine

might acquit on grounds of law, not withstanding the sentence; but he could not punish beyond the extent of the sentence. Magna Carta does not prescribe that the king shall punish according to the sentence of

Anglo-Saxons, unless in their controversies with the Normans. It was strongly discouraged by some of the Norman princes, particularly by Henry II., by whom the trial by jury was especially favored. It is probable that the trial by battle, so far as it prevailed at all in England, was rather tolerated as a matter of chivalry, than authorized as a matter of law. At an

water; in another to swallow the morsel of execration; in the confidence that his guilt or innocence would be miraculously made known. This mode of trial was nearly extinct at the time of Magna Carta, and it is not likely that it was included in "legem terrae," as that term is use

accused persons, but was only allowed to them, as

lowed as an appeal from a jury. It is wholly improbable that two diferent modes of trial, so nearly resembling each other as this and the trial by jury do, should prevail at the same time, and among a rude people, whose judicial proceedings

were permitted to persons already convicted by

have been no ground whatever for supposing that any such distinction existed at the time of Magna Carta. If there were any such distinction in the time of Coke, it had doubtless grown up within the four centuries that had elapsed since Magna Carta, an

Westminster, passed s

e and amercement as s

njustly assessed by sheriffs and baretors in the shires, * * it is provided, and the king wills, that frown henceforth such sums shall be

ribing the punishments for offences. As late as 1461, (246 years after Magna Carta,) the statute 1 Edward IV., Ch 2, speak

ses the terms, "fines, forfeitures,

10, uses the terms "fines, f

, (all supposed to have been passed within one hundred and fifteen years after Magna Cart,) which speak of amercem

ed, or suffer the judgment of the pillory; and that a brewer, for "selling ale contrary to the ass

te," but supposed to be prior to Ed

f ale,) the first, second, and third time, he shall be amerced; but the

eth the same unto Christians, after he shall be convict thereof, for the first time he shall be grievously amerced; the second time he sha

f the town; he that is convicted the second time shall have judgment of the pillory; at the third time he shall be imprisoned and make fine; the fourth time he shall abjure the town. And th

ume, App

by a pecuniary ransom, as among their ancestors, the Germans, by a stated number of cattle. Bit in the ninth year of Henry the First (1109,) this power of redemption w

es were the usual punishment of offenses. But I think there is no probability that a law so unreasonable in itself, (unreasonable even after making all allowance for the differenc

is not easy to place them under distinct heads. Let them, for methods' sake, be reduced to the heads following: Amercements for or by reason of murders and manslaughters, for misdemeanors, for disseisins, for recreancy, for brea

es of the common law governing arrests, and takes it for granted that the words "nisi per

errae, the common law, at the time of Magna Carta, included everything, even to the practice of courts, that is, at this day, called by the name of Common Law; whereas much of what is now called Common Law has grown up, by usurpation, since the time of Magna Carta, in palpable violation of the authority of that charter. He

dea that juries are required only for determining contested facts, and not for judging of the law. In case of default, the plaintif must present a prima facie case before he is entitled to a judgment; and Magna Carta, (supposing

ng the advice and assistance of the court, of course)

lone can give the judgment, or sentence, we infer that they must try the case; because otherwise they would be incompetent, and would have no moral right, to give judgment. They must, therefore, examine the grounds, (both of law and fact,) or rather try the grounds, of every action whatsoever, whether it be decided on "default, demurrer," or otherwise, and render their judgment, or sentence, thereon, before any judgment can be a legal one, on which "to take a party's

t of a man guilty of a contempt, as he would for the arrest of any other offender, and hold him to bail, (or, in default of bail, commit him to priso

counsel, witnesses, and jurors. If a judge have power to punish for contempt, and to determine for himself what is a contempt, the whole administration of justice (or injustice, if he choose to make it so) is in his hands. And all the rights of jurors, witnesses, counsel, and parties, are held subject

to do in subduing counsel into those servile, obsequious, and cowardly habits, which so universally prevail among them

by the court, for the jury, and not the court, are really the judges. For the same reason, exclusion from the court-room should be ordered only by the jury, in cases when the trial is before a jury, because they, being the real judges and triers of the cause, are entitled, if anybody, to the control of the court-room. In appeal court

t is manifestly of the last importance that they jealously guard the liberty of parties

oned) were in contemplation of the framers of Magna Carta " that is, as exceptions to the rule requiring

tion.", This is true; but it does not follow that any cause of action, founded on statute only,, is therefore a "lawful, cause of action," within the meanin