An Essay on the Trial by Jury Part 15

Hallam says, that "For the first three reigns (of the Norman kings) *

* the intolerable exactions of tribute, the rapine of purveyance, the iniquity of royal courts, are continually in the mouths of the historians. 'G.o.d sees the wretched people,' says the Saxon Chronicler, 'most unjustly oppressed; first they are despoiled of their possessions, and then butchered.' This was a grievous year (1124). Whoever had any property, lost it by heavy taxes and unjust decrees."--_2 Middle Ages_, 435-6.

"In the succeeding reign of _John_, all the rapacious exactions usual to these Norman kings were not only redoubled, but mingled with outrages of tyranny still more intolerable. * *

"In 1207 John took a seventh of the movables of lay and spiritual persons, all murmuring, but none daring to speak against it."--_Ditto_, 446.

In Hume's account of the extortions of those times, the following paragraph occurs:

"But the most barefaced acts of tyranny and oppression were practised against the Jews, who were entirely out of the protection of the law, and were abandoned to the immeasurable rapacity of the king and his ministers. Besides many other indignities, to which they were continually exposed, it appears that they were once all thrown into prison, and the sum of 66,000 marks exacted for their liberty. At another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000 marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of David, the Jew of Oxford, was required to pay 6000 marks."--_Hume's Hist. Eng., Appendix_ 2.

Further accounts of the extortions and oppressions of the kings may be found in Hume's History, Appendix 2, and in Hallam's Middle Ages, vol.

2, p. 435 to 446.

By Magna Carta John bound himself to make rest.i.tution for some of the spoliations he had committed upon individuals "_without the legal judgment of their peers_."--_See Magna Carta of John_, ch. 60, 61, 65 and 66.

One of the great charges, on account of which the nation rose against John, was, that he plundered individuals of their property, "_without legal judgment of their peers_." Now it was evidently very weak and short-sighted in John to expose himself to such charges, _if his laws were really obligatory upon the peers_; because, in that case, he could have enacted any laws that were necessary for his purpose, and then, by civil suits, have brought the cases before juries for their "judgment,"

and thus have accomplished all his robberies in a perfectly legal manner.

There would evidently have been no sense in these complaints, that he deprived men of their property "_without legal judgment of their peers_," if his laws had been binding upon the peers; because he could then have made the same spoliations as well with the judgment of the peers as without it. Taking the judgment of the peers in the matter, would have been only a ridiculous and useless formality, if they were to exercise no discretion or conscience of their own, independently of the laws of the king.

It may here be mentioned, in pa.s.sing, that the same would be true in criminal matters, if the king's laws were obligatory upon juries.

As an ill.u.s.tration of what tyranny the kings would sometimes practise, Hume says:

"It appears from the Great Charter itself, that not only John, a tyrannical prince, and Richard, a violent one, but their father Henry, under whose reign the prevalence of gross abuses is the least to be suspected, were accustomed, from their sole authority, without process of law, to imprison, banish, and attaint the freemen of their kingdom."--_Hume, Appendix_ 2.

The provision, also, in the 64th chapter of Magna Carta, that "all unjust and illegal fines, and all amercements, _imposed unjustly, and contrary to the Law of the Land, shall be entirely forgiven_," &c.; and the provision, in chapter 61, that the king "will cause full justice to be administered" in regard to "all those things, of which any person has, without legal judgment of his peers, been dispossessed or deprived, either by King Henry, our father, or our brother, King Richard,"

indicate the tyrannical practices that prevailed.

We are told also that John himself "had dispossessed several great men without any judgment of their peers, condemned others to cruel deaths, * * insomuch that his tyrannical will stood instead of a law."--_Echard's History of England_, 106.

Now all these things were very unnecessary and foolish, if his laws were binding upon juries; because, in that case, he could have procured the conviction of these men in a legal manner, and thus have saved the necessity of such usurpation. In short, if the laws of the king had been binding upon juries, there is no robbery, vengeance, or oppression, which he could not have accomplished through the judgments of juries.

This consideration is sufficient, of itself, to prove that the laws of the king were of no authority over a jury, in either civil or criminal cases, unless the juries regarded the laws as just in themselves.]

[Footnote 70: By the Magna Carta of Henry III. this is changed to once a year.]

[Footnote 71: From the provision of Magna Carta, cited in the text, it must be inferred that there can be no legal trial by jury, in civil cases, if only the king's justices preside; that, to make the trial legal, there must be other persons, chosen by the people, to sit with them; the object being to prevent the jury's being deceived by the justices. I think we must also infer that the king's justices could sit only in the three actions specially mentioned. We cannot go beyond the letter of Magna Carta, in making innovations upon the common law, which required all presiding officers in jury trials to be elected by the people.]

[Footnote 72: "The earls, sheriffs, and head-boroughs were annually elected in the full folcmote, (people's meeting)."--_Introduction to Gilbert's History of the Common Pleas_, p. 2, _note_.

"It was the especial province of the earldomen or earl to attend the shyre-meeting, (the county court,) twice a year, and there officiate as the county judge in expounding the secular laws, as appears by the fifth of Edgar's laws."--_Same_, p. 2, _note_.

"Every ward had its proper alderman, who was _chosen_, and not imposed by the prince."--_Same_, p. 4, _text_.

"As the aldermen, or earls, were always _chosen_" (by the people) "from among the greatest thanes, who in those times were generally more addicted to arms than to letters, they were but ill-qualified for the administration of justice, and performing the civil duties of their office."--_3 Henry's History of Great Britain_, 343.

"But none of these thanes were annually elected in the full folcmote, (people's meeting,) _as the earls, sheriffs, and head-boroughs were_; nor did King Alfred (as this author suggests) deprive the people of the election of those last mentioned magistrates and n.o.bles, much less did he appoint them himself."--_Introd. to Gilbert's Hist. Com. Pleas_, p.

2, _note_.

"The sheriff was usually not appointed by the lord, but elected by the freeholders of the district."--_Political Dictionary_, word _Sheriff_.

"Among the most remarkable of the Saxon laws we may reckon * * the election of their magistrates by the people, originally even that of their kings, till dear-bought experience evinced the convenience and necessity of establis.h.i.+ng an hereditary succession to the crown. But that (the election) of all subordinate magistrates, their military officers or heretochs, their sheriffs, their conservators of the peace, their coroners, their portreeves, (since changed into mayors and bailiffs,) and even their t.i.thing-men and borsholders at the last, continued, some, till the Norman conquest, others for two centuries after, and some remain to this day."--_4 Blackstone_, 413.

"The election of sheriffs was left to the people, _according to ancient usage_."--_St. West._ 1, c. 27.--_Crabbe's History of English Law_, 181.]

CHAPTER V.

OBJECTIONS ANSWERED

The following objections will be made to the doctrines and the evidence presented in the preceding chapters.

1. That it is a _maxim_ of the law, that the judges respond to the question of law, and juries only to the question of fact.

The answer to this objection is, that, since Magna Carta, judges have had more than six centuries in which to invent and promulgate pretended maxims to suit themselves; and this is one of them. Instead of expressing the law, it expresses nothing but the ambitious and lawless will of the judges themselves, and of those whose instruments they are.[73]

2. It will be asked, Of what use are the justices, if the jurors judge both of law and fact?

The answer is, that they are of use, 1. To a.s.sist and enlighten the jurors, if they can, by their advice and information; such advice and information to be received only for what they may chance to be worth in the estimation of the jurors. 2. To do anything that may be necessary in regard to granting appeals and new trials.

3. It is said that it would be absurd that twelve ignorant men should have power to judge of the law, while justices learned in the law should be compelled to sit by and see the law decided erroneously.

One answer to this objection is, that the powers of juries are not granted to them on the supposition that they know the law better than the justices; but on the ground that the justices are untrustworthy, that they are exposed to bribes, are themselves fond of power and authority, and are also the dependent and subservient creatures of the legislature; and that to allow them to dictate the law, would not only expose the rights of parties to be sold for money, but would be equivalent to surrendering all the property, liberty, and rights of the people, unreservedly into the hands of arbitrary power, (the legislature,) to be disposed of at its pleasure. The powers of juries, therefore, not only place a curb upon the powers of legislators and judges, but imply also an imputation upon their integrity and trustworthiness; and _these_ are the reasons why legislators and judges have formerly entertained the intensest hatred of juries, and, so fast as they could do it without alarming the people for their liberties, have, by indirection, denied, undermined, and practically destroyed their power. And it is only since all the real power of juries has been destroyed, and they have become mere tools in the hands of legislators and judges, that they have become favorites with them.

Legislators and judges are necessarily exposed to all the temptations of money, fame, and power, to induce them to disregard justice between parties, and sell the rights, and violate the liberties of the people.

Jurors, on the other hand, are exposed to none of these temptations.

They are not liable to bribery, for they are unknown to the parties until they come into the jury-box. They can rarely gain either fame, power, or money, by giving erroneous decisions. Their offices are temporary, and they know that when they shall have executed them, they must return to the people, to hold all their own rights in life subject to the liability of such judgments, by their successors, as they themselves have given an example for. The laws of human nature do not permit the supposition that twelve men, taken by lot from the ma.s.s of the people, and acting under such circ.u.mstances, will _all_ prove dishonest. It is a supposable case that they may not be sufficiently enlightened to know and do their whole duty, in all cases whatsoever; but that they should _all_ prove _dishonest_, is not within the range of probability. A jury, therefore, insures to us--what no other court does--that first and indispensable requisite in a judicial tribunal, integrity.

4. It is alleged that if juries are allowed to judge of the law, _they decide the law absolutely; that their decision must necessarily stand, be it right or wrong_; and that this power of absolute decision would be dangerous in their hands, by reason of their ignorance of the law.

One answer is, that this power, which juries have of _judging_ of the law, is not a power of _absolute decision in all cases_. For example, it is a power to declare imperatively that a man's property, liberty, or life, shall _not_ be taken from him; but it is not a power to declare imperatively that they _shall_ be taken from him.

Magna Carta does not provide that the judgments of the peers _shall be executed_; but only that _no other than their judgments_ shall ever be executed, _so far as to take a party's goods, rights, or person, thereon_.

A judgment of the peers may be reviewed, and invalidated, and a new trial granted. So that practically a jury has no absolute power to take a party's goods, rights, or person. They have only an absolute veto upon their being taken by the government. The government is not bound to do everything that a jury may adjudge. It is only prohibited from doing anything--(that is, from taking a party's goods, rights, or person)--unless a jury have first adjudged it to be done.

But it will, perhaps, be said, that if an erroneous judgment of one jury should be reaffirmed by another, on a new trial, it must _then_ be executed. But Magna Carta does not command even this--although it might, perhaps, have been reasonably safe for it to have done so--for if two juries unanimously affirm the same thing, after all the light and aid that judges and lawyers can afford them, that fact probably furnishes as strong a presumption in favor of the correctness of their opinion, as can ordinarily be obtained in favor of a judgment, by any measures of a practical character for the administration of justice. Still, there is nothing in Magna Carta that _compels_ the execution of even a second judgment of a jury. The only injunction of Magna Carta upon the government, as to what it _shall do_, on this point, is that it shall "do justice and right," without sale, denial, or delay. But this leaves the government all power of determining what is justice and right, except that it shall not consider anything as justice and right--so far as to carry it into execution against the goods, rights, or person of a party--unless it be something which a jury have sanctioned.

If the government had no alternative but to execute all judgments of a jury indiscriminately, the power of juries would unquestionably be dangerous; for there is no doubt that they may sometimes give hasty and erroneous judgments. But when it is considered that their judgments can be reviewed, and new trials granted, this danger is, for all practical purposes, obviated.

If it be said that juries may _successively_ give erroneous judgments, and that new trials cannot be granted indefinitely, the answer is, that so far as Magna Carta is concerned, there is nothing to prevent the granting of new trials indefinitely, if the judgments of juries are contrary to "justice and right." So that Magna Carta does not _require_ any judgment whatever to be executed--so far as to take a party's goods, rights, or person, thereon--unless it be concurred in by both court and jury.

Nevertheless, we may, for the sake of the argument, suppose the existence of a _practical_, if not _legal_, necessity, for executing _some_ judgment or other, in cases where juries persist in disagreeing with the courts. In such cases, the principle of Magna Carta unquestionably is, that the uniform judgments of _successive_ juries shall prevail over the opinion of the court. And the reason of this principle is obvious, viz., that it is the will of the country, and not the will of the court, or the government, that must determine what laws shall be established and enforced; that the concurrent judgments of successive juries, given in opposition to all the reasoning which judges and lawyers can offer to the contrary, must necessarily be presumed to be a truer exposition of the will of the country, than are the opinions of the judges.

But it may be said that, unless jurors submit to the control of the court, in matters of law, they may disagree among themselves, and _never_ come to any judgment; and thus justice fail to be done.