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[5] 1 Hume, Appendix 2.

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

[7] Coke 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 commune concilium regni Angliæ, (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;) * * 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 Coke's Institutes, 110 a.

[8] The Great Charter of Henry III., (1216 and 1225,) confirmed by Edward I., (1297,) makes no provision whatever for, or mention of, a parliament, unless the provision, (Ch. 37,) that "Escuage, (a military contribution,) from henceforth shall be taken like as it was wont to be in the time of King Henry our grandfather," mean that a parliament shall be summoned for that purpose.

[9] The Magna Carta of John, (Ch. 17 and 18,) defines those who were entitled to be summoned to parliament, to wit, "The Archbishops, Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all others who hold of us in chief." Those who held land of the king in chief included none below the rank of knights.

[10] The parliaments of that time were, doubtless, such as Carlyle describes them, when he says, "The parliament was at first a most simple assemblage, quite cognate to the situation; that Red William, or whoever had taken on him the terrible task of being 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 cheer all evening, in some big royal hall of Westminster, Winchester, or wherever it might be, with log fires, huge rounds of roast and boiled, not lacking malmsey and other generous liquor, they took counsel concerning the arduous matters of the kingdom."

[11] Hume, Appendix 2.

[12] This point will be more fully established hereafter.

[13] It is plain that the king and all his partisans looked upon the charter as utterly prostrating the king's legislative supremacy before the discretion of juries. When the schedule of liberties demanded by the barons was shown to him, (of which the trial by jury was the most important, because it was the only one that protected all the rest,) "the king, falling into a violent passion, asked, Why the barons did not with these exactions demand his kingdom? * * and with a solemn oath protested, that he would never grant such liberties as would make himself a slave." * * But afterwards, "seeing himself deserted, and fearing they would seize his castles, 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 represented to the Pope, and the Charter of Liberties shown to him, in writing; which, when he had carefully perused, he, with a furious look, cried out, What! Do the barons of England endeavor to dethrone a king, who has taken upon him the Holy Cross, and is under the protection of the Apostolic See; and would they force him to transfer the dominions of the Roman Church to others? By St. Peter, this injury must not pass unpunished. Then debating the matter with the cardinals, he, by a definitive sentence, damned and cassated forever the Charter of Liberties, and sent the king a bull containing that sentence at large."—Echard's History of England, p. 106–7.

These things show that the nature and effect of the charter were well understood by the king and his friends; that they all agreed that he was effectually stripped of power. Yet the legislative power had not been taken from him; but only the power to enforce his laws, unless juries should freely consent to their enforcement.

[14] The laws were, at that time, all written in Latin.

[15] "No man shall be condemned at the king's suit, either before the king in his bench, where pleas are coram rege, (before the king,) (and so are the words nec super eum ibimus, to be understood,) nor before any other commissioner or judge whatsoever, and so are the words nec super eum mittemus, to be understood, but by the judgment of his peers, that is, equals, or according to the law of the land."—2 Coke's Inst., 46.

[16] Perhaps the assertion in the text should be made with this qualification—that the words "per legem terræ," (according to the law of the land,) and the words "per legale judicium parium suorum," (according to the legal judgment of his peers,) imply that the 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 peers, except legal ones. With this qualification, the assertion in the text is strictly correct—that there is nothing in the whole chapter that grants to the king, or his judges, any judicial power at all. The chapter only describes and limits his executive power.

[17] See Blackstone's Law Tracts, page 294, Oxford Edition.

[18] These Articles of the Charter are given in Blackstone's collection of Charters, and are also printed with the Statutes of the Realm. Also in Wilkins' Laws of the Anglo-Saxons, p. 356.

[19] Lingard says, "The words, 'We will not destroy him, nor will we go upon him, nor will we send upon him,' have been very differently expounded by different legal authorities. Their real meaning 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 suorum in curia nostra, (nor will we go upon them by force or by arms, unless by the law of our kingdom, or the judgment of their peers in our court.) Pat. 16 Johan, apud Drad. 11, app. no. 124. He had hitherto been in the habit of going with an armed force, or sending an armed force on the lands, and against the castles, of all whom he knew or suspected to be his secret enemies, without observing any form of law."—3 Lingard, 47 note.

[20] "Judgment, judicium. * * The sentence of the law, pronounced by the court, upon the matter contained in the record."—3 Blackstone, 395. Jacob's Law Dictionary. Tomlin's do.

"Judgment is the decision or sentence of the law, given by a court of justice or other competent tribunal, as the result of the proceedings instituted therein, for the redress of an injury."—Bouvier's Law Dict.

"Judgment, judicium. * * Sentence of a judge against a criminal. * * Determination, decision in general."—Bailey's Dict.

"Judgment. * * In a legal sense, a sentence or decision pronounced by authority of a king, or other power, either by their own mouth, or by that of their judges and officers, whom they appoint to administer justice in their stead."—Chambers' Dict.

"Judgment. * * In law, the sentence or doom pronounced in any case, civil or criminal, by the judge or court by which it is tried."—Webster's Dict.

Sometimes the punishment itself is called judicium, judgment; or, rather, it was at the time of Magna Carta. For example, in a statute passed fifty-one years after Magna Carta, it was said that a baker, 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, for "selling ale contrary to the assize," "debeat amerciari, vel pati judicium tumbrelli"; that is, ought to be amerced, or suffer the punishment, or judgment, of the tumbrel.—51 Henry 3, St. 6. (1266.)

Also the "Statutes of uncertain date," (but supposed to be prior to Edward III., or 1326,) provide, in chapters 6, 7, and 10, for "judgment of the pillory."—See 1 Ruffhead's Statutes, 187, 188. 1 Statutes of the Realm, 203.

Blackstone, in his chapter "Of Judgment, and its Consequences," says,

"Judgment (unless any matter be offered in arrest thereof) follows upon conviction; being the pronouncing of that punishment which is expressly ordained by law."—Blackstone's Analysis of the Laws of England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts, 126.

Coke says, "Judicium … the judgment is the guide and direction of the execution." 3 Inst. 210.

[21] This precedent from Germany is good authority, because the trial by jury was in use, in the northern nations of Europe generally, long before Magna Carta, and probably from time immemorial; and the Saxons and Normans were familiar with it before they settled in England.

[22] Beneficium was the legal name of an estate held by a feudal tenure. See Spelman's Glossary.

[23] Contenement of a freeman was the means of living in the condition of a freeman.

[24] Waynage was a villein's plough-tackle and carts.

[25] Tomlin says, "The ancient practice was, when any such fine was imposed, to inquire by a jury quantum inde regi dare valeat per annum, salva sustentatione sua et uxoris et liberorum suorum, (how much is he able to give to the king per annum, saving his own maintenance, and 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 as might amount to imprisonment for life. And this is the reason why fines in the king's courts are frequently denominated ransoms, because the penalty must otherwise fall upon a man's person, unless it be redeemed or ransomed by a pecuniary fine."—Tomlin's Law Dict., word Fine.

[26] Because juries were to fix the sentence, it must not be supposed that the king was obliged to carry the sentence into execution; but only that he could not go beyond the sentence. He might pardon, or he might acquit on grounds of law, notwithstanding 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 the peers; but only that he shall not punish "unless according to" that sentence. He may acquit or pardon, notwithstanding their sentence or judgment; but he cannot punish, except according to their judgment.

[27] The trial by battle was one in which the accused challenged his accuser to single combat, and staked the question of his guilt or innocence on the result of the duel. This trial was introduced into England by the Normans, within one hundred and fifty years before Magna Carta. It was not very often resorted to even by the Normans themselves; probably never by the 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 any rate, it is not likely that it was included in the "legem terræ" of Magna Carta, although such duels have occasionally occurred since that time, and have, by some, been supposed to be lawful. I apprehend that nothing can be properly said to be a part of lex terræ, unless it can be shown either to have been of Saxon origin, or to have been recognized by Magna Carta.

The trial by ordeal was of various kinds. In one ordeal the accused was required to take hot iron in his hand; in another to walk blindfold among red-hot ploughshares; in another to thrust his arm into boiling water; in another to be thrown, with his hands and feet bound, into cold 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 terræ," as that term is used in that instrument. This idea is corroborated by the fact that the trial by ordeal was specially prohibited only four years after Magna Carta, "by act of Parliament in 3 Henry III., according to Sir Edward Coke, or rather by an order of the king in council."—3 Blackstone 345, note.

I apprehend that this trial was never forced upon accused persons, but was only allowed to them, as an appeal to God, from the judgment of a jury.[33]

The trial by compurgators was one in which, if the accused could bring twelve of his neighbors, who would make oath that they believed him innocent, he was held to be so. It is probable that this trial was really the trial by jury, or was allowed as an appeal from a jury. It is wholly improbable that two different 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 would naturally be of the simplest kind. But if this trial really were any other than the trial by jury, it must have been nearly or quite extinct at the time of Magna Carta; and there is no probability that it was included in "legem terræ."

[28] Coke attempts to show that there is a distinction between amercements and fines—admitting that amercements must be fixed by one's peers, but claiming that fines may be fixed by the government. (2 Inst. 27, 8 Coke's Reports 38.) But there seems to 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, and is to be set down as one of the numberless inventions of government for getting rid of the restraints of Magna Carta, and for taking men out of the protection of their peers, and subjecting them to such punishments as the government chooses to inflict.

The first statute of Westminster, passed sixty years after Magna Carta, treats the fine and amercement as synonymous, as follows:

"Forasmuch as the common fine and amercement of the whole county in Eyre of the justices for false judgments, or for other trespass, is unjustly assessed by sheriffs and baretors in the shires, * * it is provided, and the king wills, that from henceforth such sums shall be assessed before the justices in Eyre, afore their departure, by the oath of knights and other honest men," &c.—3 Edward I., Ch. 18. (1275.)

And in many other statutes passed after Magna Carta, the terms fine and amercement seem to be used indifferently, in prescribing the punishment for offences. As late as 1461, (246 years after Magna Carta,) the statute 1 Edward IV., Ch. 2, speaks of "fines, ransoms, and amerciaments" as being levied upon criminals, as if they were the common punishments of offences.

St. 2 and 3 Philip and Mary, Ch. 8, uses the terms, "fines, forfeitures, and amerciaments" five times. (1555.)

St. 5 Elizabeth, Ch. 13, Sec. 10, uses the terms "fines, forfeitures, and amerciaments."

That amercements were fines, or pecuniary punishments, inflicted for offences, is proved by the following statutes, (all supposed to have been passed within one hundred and fifteen years after Magna Carta,) which speak of amercements as a species of "judgment," or punishment, and as being inflicted for the same offences as other "judgments."

Thus one statute declares that a baker, for default in the weight of his bread, "ought to be amerced, or suffer the judgment of the pillory;" and that a brewer, for "selling ale contrary to the assize," "ought to be amerced, or suffer the judgment of the tumbrel."—51 Henry III., St. 6. (1266.)

Among the "Statutes of Uncertain Date," but supposed to be prior to Edward III., (1326,) are the following:

Chap. 6 provides that "if a brewer break the assize, (fixing the price of ale,) the first, second, and third time, he shall be amerced; but the fourth time he shall suffer judgment of the pillory without redemption."

Chap. 7 provides that "a butcher that selleth swine's flesh measled, or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth the same unto Christians, after he shall be convict thereof, for the first time he shall be grievously amerced; the second time he shall suffer judgment of the pillory; and the third time he shall be imprisoned and make fine; and the fourth time he shall forswear the town."

Chap. 10, a statute against forestalling, provides that,

"He that is convict thereof, the first time shall be amerced, and shall lose the thing so bought, and that according to the custom of 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 this judgment shall be given upon all manner of forestallers, and likewise upon them that have given them counsel, help, or favor."—1 Ruffhead's Statutes, 187, 188. 1 Statutes of the Realm, 203.

[29] 1 Hume, Appendix, 1.

[30] Blackstone says, "Our ancient Saxon laws nominally punished theft with death, if above the value of twelve pence; but the criminal was permitted to redeem his life by a pecuniary ransom, as among their ancestors, the Germans, by a stated number of cattle. But in the ninth year of Henry the First, (1109,) this power of redemption was taken away, and all persons guilty of larceny above the value of twelve pence were directed to be hanged, which law continues in force to this day."—4 Blackstone, 238.

I give this statement of Blackstone, because the latter clause may seem to militate with the idea, which the former clause corroborates, viz., that at the time of Magna Carta, fines were the usual punishments of offences. But I think there is no probability that a law so unreasonable in itself, (unreasonable even after making all allowance for the difference in the value of money,) and so contrary to immemorial custom, could or did obtain any general or speedy acquiescence among a people who cared little for the authority of kings.

Maddox, writing of the period from William the Conqueror to John, says:

"The amercements in criminal and common pleas, which were wont to be imposed during this first period and afterwards, were of so many several sorts, that it is not easy to place them under distinct heads. Let them, for method's sake, be reduced to the heads following: Amercements for or by reason of murders and manslaughters, for misdemeanors, for disseisins, for recreancy, for breach of assize, for defaults, for non-appearance, for false judgment, and for not making suit, or hue and cry. To them may be added miscellaneous amercements, for trespasses of divers kinds."—1 Maddox' History of the Exchequer, 542.

[31] Coke, in his exposition of the words legem terræ, gives quite in detail the principles of the common law governing arrests; and takes it for granted that the words "nisi per legem terræ" are applicable to arrests, as well as to the indictment, &c.—2 Inst., 51,52.

[32] I cite the above extract from Mr. Hallam solely for the sake of his authority for rendering the word vel by and; and not by any means for the purpose of indorsing the opinion he suggests, that legem terræ authorized "judgments by default or demurrer," without the intervention of a jury. He seems to imagine that lex terræ, 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 says, "Certainly there are many legal procedures, besides trial by jury, through which a party's goods or person may be taken." Of course there are now many such ways, in which a party's goods or person are taken, besides by the judgment of a jury; but the question is, whether such takings are not in violation of Magna Carta.

He seems to think that, in cases of "judgment by default or demurrer," there is no need of a jury, and thence to infer that legem terræ may not have required a jury in those cases. But this opinion is founded on the erroneous idea that juries are required only for determining contested facts, and not for judging of the law. In case of default, the plaintiff must present a prima facie case before he is entitled to a judgment; and Magna Carta, (supposing it to require a jury trial in civil cases, as Mr. Hallam assumes that it does,) as much requires that this prima facie case, both law and fact, be made out to the satisfaction of a jury, as it does that a contested case shall be.

As for a demurrer, the jury must try a demurrer (having the advice and assistance of the court, of course) as much as any other matter of law arising in a case.

Mr. Hallam evidently thinks there is no use for a jury, except where there is a "trial"—meaning thereby a contest on matters of fact. His language is, that "there are many legal procedures, besides trial by jury, through which a party's goods or person may be taken." Now Magna Carta says nothing of trial by jury; but only of the judgment, or sentence, of a jury. It is only by inference that we come to the conclusion that there must be a trial by jury. Since the jury alone 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 goods or person." In short, the principle of Magna Carta is, that no judgment can be valid against a party's goods or person, (not even a judgment for costs,) except a judgment rendered by a jury. Of course a jury must try every question, both of law and fact, that is involved in the rendering of that judgment. They are to have the assistance and advice of the judges, so far as they desire them; but the judgment itself must be theirs, and not the judgment of the court.

As to "process of attachment for contempt," it is of course lawful for a judge, in his character of a peace officer, to issue a warrant for the arrest 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 prison,) to answer for his offence before a jury. Or he may order him into custody without a warrant when the offence is committed in the judge's presence. But there is no reason why a judge should have the power of punishing for contempt, any more than for any other offence. And it is one of the most dangerous powers a judge can have, because it gives him absolute authority in a court of justice, and enables him to tyrannize as he pleases over parties, 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 his pleasure, and can be exercised only agreeably to his will. He can of course control the entire proceedings in, and consequently the decision of, every cause, by restraining and punishing every one, whether party, counsel, witness, or juror, who presumes to offer anything contrary to his pleasure.

This arbitrary power, which has been usurped and exercised by judges to punish for contempt, has undoubtedly had much to do in subduing counsel into those servile, obsequious, and cowardly habits, which so universally prevail among them, and which have not only cost so many clients their rights, but have also cost the people so many of their liberties.

If any summary punishment for contempt be ever necessary, (as it probably is not,) beyond exclusion for the time being from the court-room, (which should be done, not as a punishment, but for self-protection, and the preservation of order,) the judgment for it should be given by the jury, (where the trial is before a jury,) and not 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 courts, where no juries sit, it may be necessary—not as a punishment, but for self-protection, and the maintenance of order—that the court should exercise the power of excluding a person, for the time being, from the court-room; but there is no reason why they should proceed to sentence him as a criminal, without his being tried by a jury.

If the people wish to have their rights respected and protected in courts of justice, it is manifestly of the last importance that they jealously guard the liberty of parties, counsel, witnesses, and jurors, against all arbitrary power on the part of the court.

Certainly Mr. Hallam may very well say that "one may doubt whether these (the several cases he has mentioned) were in contemplation of the framers of Magna Carta"—that is, as exceptions to the rule requiring that all judgments, that are to be enforced "against a party's goods or person," be rendered by a jury.

Again, Mr. Hallam says, if the word vel be rendered by and, "the meaning will be, that no person shall be disseized, &c., except upon a lawful cause of action." 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 meaning of legem terræ, or the Common Law. Within the meaning of the legem terræ of Magna Carta, nothing but a common law cause of action is a "lawful" one.

[33] Hallam says, "It appears as if the ordeal were permitted to persons already convicted by this verdict of a jury."—2 Middle Ages, 446, note.