Part 24 (2/2)
Of the Great Charter, the trial by jury is the vital part, and the only part that places the liberties of the people in their own keeping. Of this Blackstone says:
”The trial by jury, or the country, _per patriam_, is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the Great Charter; _nullus liber h.o.m.o capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur, nisi per legale judicium parium suorum, vel per legem terrae...._
The liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all open attacks, which none will be so hardy as to make, but also from all secret machinations which may sap and undermine it.”[111]
”The trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law.... It is the most transcendent privilege which any subject can enjoy or wish for, that he cannot be affected in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals.”[112]
Hume calls the trial by jury ”An inst.i.tution admirable in itself, and the best calculated for the preservation of liberty and the administration of justice, that ever was devised by the wit of man.”[113]
An old book, called ”English Liberties,” says:
”English Parliaments have all along been most zealous for preserving this great Jewel of Liberty, trials by juries having no less than fifty-eight several times, since the Norman Conquest, been established and confirmed by the legislative power, no one privilege besides having been ever so often remembered in parliament.”[114]
[Footnote 106: _Mackintosh's Hist. of Eng._, ch. 3. _45 Lardner's Cab.
Cyc._, 354.]
[Footnote 107: ”_Forty s.h.i.+lling freeholders_” were those ”people dwelling and resident in the same counties, whereof every one of them shall have free land or tenement to the value of forty s.h.i.+llings by the year at the least above all charges.” By statute _8 Henry_ 6, ch. 7, (1429,) these freeholders only were allowed to vote for members of Parliament from the _counties_.]
[Footnote 108: He probably speaks in its favor only to blind the eyes of the people to the frauds he has attempted upon its true meaning.]
[Footnote 109: It will be noticed that c.o.ke calls these confirmations of the charter ”acts of parliament,” instead of acts of the king alone.
This needs explanation.
It was one of c.o.ke's ridiculous pretences, that laws anciently enacted by the king, at the request, or with the consent, or by the advice, of his parliament, was ”an act of parliament,” instead of the act of the king. And in the extracts cited, he carries this idea so far as to pretend that the various confirmations of the Great Charter were ”acts of parliament,” instead of the acts of the kings. He might as well have pretended that the original grant of the Charter was an ”act of parliament;” because it was not only granted at the request, and with the consent, and by the advice, but on the compulsion even, of those who commonly const.i.tuted his parliaments. Yet this did not make the grant of the charter ”an act of parliament.” It was simply an act of the king.
The object of c.o.ke, in this pretence, was to furnish some color for the palpable falsehood that the legislative authority, which parliament was trying to a.s.sume in his own day, and which it finally succeeded in obtaining, had a precedent in the ancient const.i.tution of the kingdom.
There would be as much reason in saying that, because the ancient kings were in the habit of pa.s.sing laws in special answer to the _pet.i.tions_ of their subjects, therefore those _pet.i.tioners_ were a part of the legislative power of the kingdom.
One great objection to this argument of c.o.ke, for the legislative authority of the ancient parliaments, is that a very large--probably much the larger--number of legislative acts were done _without_ the advice, consent, request, or even presence, of a parliament. Not only were many formal statutes pa.s.sed without any mention of the consent or advice of parliament, but a simple order of the king in council, or a simple proclamation, writ, or letter under seal, issued by his command, had the same force as what c.o.ke calls ”an act of parliament.” And this practice continued, to a considerable extent at least, down to c.o.ke's own time.
The kings were always in the habit of consulting their parliaments, more or less, in regard to matters of legislation,--not because their consent was const.i.tutionally necessary, but in order to make influence in favor of their laws, and thus induce the people to observe them, and the juries to enforce them.
The general duties of the ancient parliaments were not legislative, but judicial, as will be shown more fully hereafter. The _people_ were not represented in the parliaments at the time of Magna Carta, but only the archbishops, bishops, earls, barons, and knights; so that little or nothing would have been gained for liberty by c.o.ke's idea that parliament had a legislative power. He would only have subst.i.tuted an aristocracy for a king. Even after the Commons were represented in parliament, they for some centuries appeared only as _pet.i.tioners_, except in the matter of taxation, when their _consent_ was asked. And almost the only source of their influence on legislation was this: that they would sometimes refuse their consent to the taxation, unless the king would pa.s.s such laws as they pet.i.tioned for; or, as would seem to have been much more frequently the case, unless he would abolish such laws and practices as they remonstrated against.
The _influence_ or power of parliament, and especially of the Commons, in the general legislation of the country, was a thing of slow growth, having its origin in a device of the king to get money contrary to law, (as will be seen in the next volume,) and not at all a part of the const.i.tution of the kingdom, nor having its foundation in the consent of the people. The power, _as at present exercised_, was not fully established until 1688, (near five hundred years after Magna Carta,) when the House of Commons (falsely so called) had acquired such influence as the representative, _not of the people, but of the wealth, of the nation_, that they compelled the king to discard the oath fixed by the const.i.tution of the kingdom; (which oath has been already given in a former chapter,(page 101) and was, in substance, to preserve and execute the Common Law, the Law of the Land,--or, in the words of the oath, ”_the just laws and customs which the common people had chosen_;”) and to swear that he would ”govern the people of this kingdom of England, and the dominions thereto belonging, _according to the statutes in parliament agreed on_, and the laws and customs of the same.”[115]
The pa.s.sage and enforcement of this statute, and the a.s.sumption of this oath by the king, were plain violations of the English const.i.tution, inasmuch as they abolished, so far as such an oath could abolish, the legislative power of the king, and also ”those just laws and customs which the common people (through their juries) had chosen,” and subst.i.tuted the will of parliament in their stead.
c.o.ke was a great advocate for the legislative power of parliament, as a means of restraining the power of the king. As he denied all power to _juries_ to decide upon the obligation of laws, and as he held that the legislative power was ”_so transcendent and absolute as (that) it cannot be confined, either for causes or persons, within any bounds_,”[116] he was perhaps honest in holding that it was safer to trust this terrific power in the hands of parliament, than in the hands of the king. His error consisted in holding that either the king or parliament had any such power, or that they had any power at all to pa.s.s laws that should be binding upon a jury.
These declarations of c.o.ke, that the charter was confirmed by thirty-two ”acts of parliament,” have a mischievous bearing in another respect.
They tend to weaken the authority of the charter, by conveying the impression that the charter itself might be _abolished_ by ”act of parliament.” c.o.ke himself admits that it could not be revoked or rescinded by the _king_; for he says, ”All pretence of prerogative against Magna Carta is taken away.” (_2 Inst._, 36.)
He knew perfectly well, and the whole English nation knew, that the _king_ could not lawfully infringe Magna Carta. Magna Carta, therefore, made it impossible that absolute power could ever be practically established in England, _in the hands of the king_. Hence, as c.o.ke was an advocate for absolute power,--that is, for a legislative power ”so transcendent and absolute as (that) it cannot be confined, either for causes or persons, within any bounds,”--there was no alternative for him but to vest this absolute power in parliament. Had he not vested it in parliament, he would have been obliged to abjure it altogether, and to confess that the people, _through their juries_, had the right to judge of the obligation of all legislation whatsoever; in other words, that they had the right to confine the government within the limits of ”those just laws and customs which the common people (acting as jurors) had chosen.” True to his instincts, as a judge, and as a tyrant, he a.s.sumed that this absolute power was vested in the hands of parliament.
But the truth was that, as by the English const.i.tution parliament had no authority at all for _general_ legislation, it could no more confirm, than it could abolish, Magna Carta.
<script>