Part 9 (2/2)

That the juries were to fix the sentence under Magna Carta, is also shown by statutes subsequent to Magna Carta.

A statute pa.s.sed fifty-one years after Magna Carta, says that a baker, for default in the weight of his bread, ”_debeat_ amerciari vel subire judicium pillorae,”--that is, ”_ought_ to be amerced, or suffer the sentence of the pillory.” And 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 judgment of the tumbrel.”--_51 Henry III._, st. 6. (1266.)

If the king (the legislative power) had had authority to fix the punishments of these offences imperatively, he would naturally have said these offenders _shall_ be amerced, and _shall_ suffer judgment of the pillory and tumbrel, instead of thus simply expressing the opinion that they _ought_ to be punished in that manner.

The statute of Westminster, pa.s.sed sixty years after Magna Carta, provides that,

”No city, borough, nor town, _nor any man_, be amerced, without reasonable cause, and according to the quant.i.ty of the trespa.s.s; that is to say, every freeman saving his freehold, a merchant saving his merchandise, a villein his waynage, _and that by his or their peers_.”--_3 Edward I._, ch. 6. (1275.)

The same statute (ch. 18) provides further, that,

”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, so that the sum is many times increased, and the parcels otherwise a.s.sessed than they ought to be, to the damage of the people, which be many times paid to the sheriffs and baretors, which do not acquit the payers; 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_, upon all such as ought to pay; and the justices shall cause the parcels to be put into their estreats, which shall be delivered up unto the exchequer, and not the whole sum.”--_St. 3 Edward I._, ch. 18, (1275.)[58]

The following statute, pa.s.sed in 1341, one hundred and twenty-five years after Magna Carta, providing for the trial of peers of the realm, and the king's ministers, contains a recognition of the principle of Magna Carta, that the jury are to fix the sentence.

”Whereas before this time the peers of the land have been arrested and imprisoned, and their temporalities, lands, and tenements, goods and cattels, a.s.seized in the king's hands, and some put to death without judgment of their peers: It is accorded and a.s.sented, that no peer of the land, officer, nor other, because of his office, nor of things touching his office, nor by other cause, shall be brought in judgment to lose his temporalities, lands, tenements, goods and cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor forejudged, nor put to answer, nor be judged, but by _award_ (_sentence_) of the said peers in Parliament.”--_15 Edward III._, st.

1, sec. 2.

Section 4, of the same statute provides,

”That in every Parliament, at the third day of every Parliament, the king shall take in his hands the offices of all the ministers aforesaid,” (that is, ”the chancellor, treasurer, barons, and chancellor of the exchequer, the justices of the one bench and of the other, justices a.s.signed in the country, steward and chamberlain of the king's house, keeper of the privy seal, treasurer of the wardrobe, controllers, and they that be chief deputed to abide nigh the king's son, Duke of Cornwall,”) ”and so they shall abide four or five days; except the offices of justices of the one place or the other, justices a.s.signed, barons of exchequer; so always that they and all other ministers be put to answer to every complaint; and if default be found in any of the said ministers, by complaint or other manner, and of that attainted in Parliament, he shall be punished by judgment of the peers, and put out of his office, and another convenient put in his place. And upon the same our said sovereign lord the king shall do (cause) to be p.r.o.nounced and made execution without delay, _according to the judgment_ (_sentence_) of the said peers in the Parliament.”

Here is an admission that the peers were to fix the sentence, or judgment, and the king promises to make execution ”_according to_” that sentence.

And this appears to be the law, under which peers of the realm and the great officers of the crown were tried and sentenced, for four hundred years after its pa.s.sage, and, for aught I know, until this day.

The first case given in Hargrave's collection of English State Trials, is that of _Alexander Nevil_, Archbishop of York, _Robert Vere_, Duke of Ireland, _Michael de la Pole_, Earl of Suffolk, and _Robert Tresilian_, Lord Chief Justice of England, with several others, convicted of treason, before ”the Lords of Parliament,” in 1388. The sentences in these cases were adjudged by the ”Lords of Parliament,” in the following terms, as they are reported.

”Wherefore the said _Lords of Parliament_, there present, as judges in Parliament, in this case, _by a.s.sent of the king, p.r.o.nounced their sentence_, and did adjudge the said archbishop, duke, and earl, with Robert Tresilian, so appealed, as aforesaid, to be guilty, and convicted of treason, and to be drawn and hanged, as traitors and enemies to the king and kingdom; and that their heirs should be disinherited forever, and their lands and tenements, goods and chattels, forfeited to the king, and that the temporalities of the Archbishop of York should be taken into the king's hands.”

Also, in the same case, Sir _John Holt_, Sir _William Burgh_, Sir _John Cary_, Sir _Roger Fulthorpe_, and _John Locton_, ”_were by the lords temporal, by the a.s.sent of the king_, adjudged to be drawn and hanged, as traitors, their heirs disinherited, and their lands and tenements, goods and chattels, to be forfeited to the king.”

Also, in the same case, _John Blake_, ”of council for the king,” and _Thomas Uske_, under sheriff of Middles.e.x, having been convicted of treason,

”_The lords awarded, by a.s.sent of the king_, that they should both be hanged and drawn as traitors, as open enemies to the king and kingdom, and their heirs disinherited forever, and their lands and tenements, goods and chattels, forfeited to the king.”

Also, ”_Simon Burleigh_, the king's chamberlain,” being convicted of treason, ”_by joint consent of the king and the lords_, sentence was p.r.o.nounced against the said Simon Burleigh, that he should be drawn from the town to Tyburn, and there be hanged till he be dead, and then have his head struck from his body.”

Also, ”_John Beauchamp_, steward of the household to the king, _James Beroverse_, and _John Salisbury_, knights, gentlemen of the privy chamber, _were in like manner condemned_.”--_1 Hargrave's State Trials_, first case.

Here the sentences were all fixed by the peers, _with the a.s.sent of the king_. But that the king should be consulted, and his a.s.sent obtained to the sentence p.r.o.nounced by the peers, does not imply any deficiency of power on their part to fix the sentence independently of the king. There are obvious reasons why they might choose to consult the king, and obtain his approbation of the sentence they were about to impose, without supposing any legal necessity for their so doing.

So far as we can gather from the reports of state trials, peers of the realm were usually sentenced by those who tried them, _with the a.s.sent of the king_. But in some instances no mention is made of the a.s.sent of the king, as in the case of ”Lionel, Earl of Middles.e.x, Lord High Treasurer of England,” in 1624, (four hundred years after Magna Carta,) where the sentence was as follows:

”This High Court of Parliament doth adjudge, that Lionel, Earl of Middles.e.x, now Lord Treasurer of England, shall lose all his offices which he holds in this kingdom, and shall, hereafter, be made incapable of any office, place, or employment in the state and commonwealth. That he shall be imprisoned in the tower of London, during the king's pleasure. That he shall pay unto our sovereign lord the king a fine of 50,000 pounds. That he shall never sit in Parliament any more, and that he shall never come within the verge of the court.”--_2 Howell's State Trials_, 1250.

Here was a peer of the realm, and a minister of the king, of the highest grade; and if it were ever _necessary_ to obtain the a.s.sent of the king to sentences p.r.o.nounced by the peers, it would unquestionably have been obtained in this instance, and his a.s.sent would have appeared in the sentence.

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