Part 4 (2/2)
Determination, decision in general.”--_Bailey's Dict._
”_Judgment._ * * In a legal sense, a sentence or decision p.r.o.nounced 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 p.r.o.nounced 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 pa.s.sed 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 a.s.size,” ”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 p.r.o.nouncing of that punishment which is expressly ordained by law.”--_Blackstone's a.n.a.lysis of the Laws of England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts_, 126.
c.o.ke says, ”_Judicium_ ... the judgment is the guide and direction of the execution.” 3 _Inst._ 210.]
[Footnote 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.]
[Footnote 22: _Beneficium_ was the legal name of an estate held by a feudal tenure. See Spelman's Glossary.]
[Footnote 23: _Contenement_ of a freeman was the means of living in the condition of a freeman.]
[Footnote 24: _Waynage_ was a villein's plough-tackle and carts.]
[Footnote 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 a.s.sess 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._]
[Footnote 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.]
[Footnote 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 terrae_” 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 terrae_, 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 terrae_,” 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 c.o.ke, 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 G.o.d_, 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 terrae_.”]
[Footnote 28: c.o.ke 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 c.o.ke'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 c.o.ke, 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, pa.s.sed 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 trespa.s.s, is unjustly a.s.sessed by sheriffs and baretors in the s.h.i.+res, * * it is provided, and the king wills, that from henceforth such sums shall be a.s.sessed 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 pa.s.sed 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.)
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