Part 5 (2/2)

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 terrae_, or the _Common Law_. Within the meaning of the _legem terrae_ of Magna Carta, nothing but a _common law_ cause of action is a ”_lawful_” one.]

[Footnote 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_.]

CHAPTER III.

ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS.

If any evidence, extraneous to the history and language of Magna Carta, were needed to prove that, by that chapter which guaranties the trial by jury, all was meant that has now been ascribed to it, and _that the legislation of the king was to be of no authority with the jury beyond what they chose to allow to it_, and that the juries were to limit the punishments to be inflicted, we should find that evidence in various sources, such as the laws, customs, and characters of their ancestors on the continent, and of the northern Europeans generally; in the legislation and customs that immediately succeeded Magna Carta; in the oaths that have at different times been administered to jurors, &c., &c.

This evidence can be exhibited here but partially. To give it all would require too much s.p.a.ce and labor.

SECTION I.

_Weakness of the Regal Authority._

Hughes, in his preface to his translation of Horne's ”_Mirror of Justices_,” (a book written in the time of Edward I., 1272 to 1307,) giving a concise view of the laws of England generally, says:

”Although in the Saxon's time I find the usual words of the acts then to have been _edictum_, (edict,) _const.i.tutio_, (statute,) little mention being made of the commons, yet I further find that, _tum demum leges vim et vigerem habuerunt, c.u.m fuerunt non modo inst.i.tutae sed firmatae approbatione communitatis_.” (The laws had force and vigor only when they were not only enacted, but confirmed by the approval of the community.)

The _Mirror of Justices_ itself also says, (ch. 1, sec. 3,) in speaking ”_Of the first Const.i.tutions of the Ancient Kings_:”

”Many ordinances were made by many kings, until the time of the king that now is (Edward I.); the which ordinances were abused, _or not used by many, nor very current_, because they were not put in writing, and certainly published.”--_Mirror of Justices_, p. 6.

Hallam says:

”The Franks, Lombards, and Saxons seem alike to have been jealous of judicial authority; and averse to surrendering what concerned every man's private right, out of the hands of his neighbors and equals.”--_1 Middle Ages_, 271.

The ”judicial authority,” here spoken of, was the authority of the kings, (who at that time united the office of both legislators and judges,) and not of a separate department of government, called the judiciary, like what has existed in more modern times.[34]

Hume says:

”The government of the Germans, and that of all the northern nations, who established themselves on the ruins of Rome, was always extremely free; and those fierce people, accustomed to independence and inured to arms, _were more guided by persuasion than authority, in the submission which they paid to their princes_. The military despotism, which had taken place in the Roman empire, and which, previously to the irruption of those conquerors, had sunk the genius of men, and destroyed every n.o.ble principle of science and virtue, was unable to resist the vigorous efforts of a free people, and Europe, as from a new epoch, rekindled her ancient spirit, and shook off the base servitude to arbitrary will and authority under which she had so long labored. The free const.i.tutions then established, however impaired by the encroachments of succeeding princes, still preserve an air of independence and legal administration, which distinguished the European nations; and if that part of the globe maintain sentiments of liberty, honor, equity, and valor, superior to the rest of mankind, it owes these advantages chiefly to the seeds implanted by those generous barbarians.

”_The Saxons, who subdued Britain, as they enjoyed great liberty in their own country, obstinately retained that invaluable possession in their new settlement; and they imported into this island the same principles of independence, which they had inherited from their ancestors. The chieftains, (for such they were, more than kings or princes,) who commanded them in those military expeditions, still possessed a very limited authority_; and as the Saxons exterminated, rather than subdued the ancient inhabitants, they were, indeed, transplanted into a new territory, _but preserved unaltered all their civil and military inst.i.tutions_. The language was pure Saxon; even the names of places, which often remain while the tongue entirely changes, were almost all affixed by the conquerors; the manners and customs were wholly German; and the same picture of a fierce and bold liberty, which is drawn by the masterly pen of Tacitus, will suit those founders of the English government. _The king, so far from being invested with arbitrary power, was only considered as the first among the citizens; his authority depended more on his personal qualities than on his station; he was even so far on a level with the people, that a stated price was fixed for his head, and a legal fine was levied upon his murderer, which though proportionate to his station, and superior to that paid for the life of a subject, was a sensible mark of his subordination to the community._”--_1 Hume_, _Appendix_, 1.

Stuart says:

”The Saxons brought along with them into Britain their own customs, language, and civil inst.i.tutions. Free in Germany, they renounced not their independence, when they had conquered. Proud from victory, and with their swords in their hands, would they surrender their liberties to a private man? Would temporary leaders, limited in their powers, and unprovided in resources, ever think to usurp an authority over warriors, who considered themselves as their equals, were impatient of control, and attached with devoted zeal to their privileges? Or, would they find leisure to form resolutions, or opportunities to put them in practice, amidst the tumult and confusion of those fierce and b.l.o.o.d.y wars, which their nations first waged with the Britons, and then engaged in among themselves?

Sufficiently flattered in leading the armies of their countrymen, the ambition of commanders could as little suggest such designs, as the liberty of the people could submit to them. The conquerors of Britain retained their independence; and this island saw itself again in that free state in which the Roman arms had discovered it.

”The same firmness of character, and generosity of manners, which, in general, distinguished the Germans, were possessed in an eminent degree by the Saxons; and while we endeavor to unfold their political inst.i.tutions, we must perpetually turn our observation to that masterly picture in which the Roman historian has described these nations. In the woods of Germany shall we find the principles which directed the state of land, in the different kingdoms of Europe; and there shall we find the foundation of those ranks of men, and of those civil arrangements, which the barbarians everywhere established; and which the English alone have had the good fortune, or the spirit, to preserve.”--_Stuart on the Const.i.tution of England_, p. 59-61.

”Kings they (the Germans) respected as the first magistrates of the state; but the authority possessed by them was narrow and limited.”--_Ditto_, p. 134.

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