Part 3 (1/2)

This chapter of Magna Carta would, therefore, have imposed not the slightest restraint upon the power of the king, or afforded the slightest protection to the liberties of the people, if the laws of the king had been embraced in the term _legem terrae_. But if _legem terrae_ was the common law, which the king was sworn to maintain, then a real restriction was laid upon his power, and a real guaranty given to the people for their liberties.

Such, then, being the meaning of _legem terrae_, the fact is established that Magna Carta took an accused person entirely out of the hands of the legislative power, that is, of the king; and placed him in the power 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 of the accused freely consented to it, or the common law authorized it; that the legislative power, _of itself_, was wholly incompetent to _require_ the conviction or punishment of a man for any offence whatever.

_Whether Magna Carta allowed of any other trial than by jury._

The question here arises, whether ”_legem terrae_” did not allow of some other mode of trial than that by jury.

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 known in 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.[27] For all practical purposes 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 in 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 ”earls 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 trial, 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 should 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.[28]

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 fine, 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.[29] 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.[30]

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 it is material for us to 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 punishments 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 and 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.