Part 4 (1/2)

The difference between this reading and the other is important. In the one case, there would be, at first view, some color of ground for 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 the land. In the other case, it requires both the sentence of his peers _and_ the law of the land (common law) to authorize his punishment.

If this latter reading be adopted, the provision would seem to exclude all trials except trial by jury, and all causes of action except those of the _common law_.

But I apprehend the word vel must be rendered both by _and_, and by _or_; that in cases of a _judgment_, it should be rendered by _and_, so as to require the concurrence both of ”the judgment of the peers _and_ the law of the land,” to authorize the king to make execution upon 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 necessarily be the only guide to, and restraint upon, the king. If this guide and restraint were taken away, the king would be invested with an arbitrary and most dangerous power in making arrests, and confining in prison, under pretence of an intention to bring to trial.

Having thus examined the language of this chapter of Magna Carta, so far as it relates to criminal cases, its legal import may be stated as follows, viz.:

No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner 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 execution of) the sentence of his peers, _and_ (or _or_, as the case may require) the Common Law of England, (as it was at the time of Magna Carta, in 1215.)

[Footnote 5: 1 Hume, Appendix 2.]

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

[Footnote 7: c.o.ke 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 Angliae_, (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 c.o.ke's Inst.i.tutes, 110 a._]

[Footnote 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.]

[Footnote 9: The Magna Carta of John, (Ch. 17 and 18,) defines those who were ent.i.tled 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.]

[Footnote 10: The parliaments of that time were, doubtless, such as Carlyle describes them, when he says, ”The parliament was at first a most simple a.s.semblage, 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.”]

[Footnote 11: Hume, Appendix 2.]

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

[Footnote 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 pa.s.sion, 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 pa.s.s unpunished._ Then debating the matter with the cardinals, he, by a definitive sentence, d.a.m.ned and ca.s.sated 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._]

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

[Footnote 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 c.o.ke's Inst._, 46.]

[Footnote 16: Perhaps the a.s.sertion in the text should be made with this qualification--that the words ”_per legem terrae_,” (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 a.s.sertion 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.]

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

[Footnote 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.]

[Footnote 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.]

[Footnote 20: ”_Judgment, judicium._ * * The sentence of the law, p.r.o.nounced 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 inst.i.tuted therein, for the redress of an injury.”--_Bouvier's Law Dict._

”_Judgment, judicium._ * * Sentence of a judge against a criminal. * *