,,an ,,essay  ,,on ,,the  ,,trial ,,by  
,,jury4   ,,by ,,lysander ,,spooner4    
,,boston3  ,,john ,p4 ,,jewett ,,and    
,,company4  ,,cleveland1 ,,ohio3        
,,jewett1 ,,proctor  ,,worthington4     
#aheb4    ,entered according to ,act of 
,congress1 in the year #aheb1 by        
,,lysander ,,spooner1  ,in the ,clerk's 
,office of the ,district ,court of      
,massachusetts4   ,,notice ,,to         
,,english ,,publishers4  ,the author    
claims the copyright of this book in    
,england1 on ,common ,law principles1   
without regard to acts of parliament2   
and if the main principle of the book   
itself be true1 viz41 that no           
legislation1 in conflict with the       
,common ,law1 is of any validity1 his   
claim is a legal one4 ,he forbids any   
one to reprint the book without his     
consent4    ,stereotyped by  ,,hobart   
,,robbins2  ,new ,england ,type and     
,stereotype ,foundery1  ,,boston4       
,,note4  ,this volume1 it is presumed by
 the author1 gives what will generally  

be considered satisfactory              
evidence1--though not all the           
evidence1--of what the ,common ,law     
trial by jury really is4 ,in a future   
volume1 if it should be called for1 it  
is designed to corroborate the grounds  
taken in this2 give a concise view of   
the ,english constitution2 show the     
unconstitutional character of the       
existing government in ,england1 and the
 unconstitutional means by which the    
trial by jury has been broken down in   
practice2 prove that1 neither in        
,england nor the ,united ,states1 have  
legislatures ever been invested by the  
people with any authority to impair the 
powers1 change the oaths1 or 7with few  
exceptions7 abridge the jurisdiction1 of
 juries1 or select jurors on any other  
than ,common ,law principles2 and1      
consequently1 that1 in both countries1  
legislation is still constitutionally   
subordinate to the discretion and       
consciences of ,common ,law juries1 in  
all cases1 both civil and criminal1 in  

which juries sit4 ,the same volume will 
probably also discuss several political 
and legal questions1 which will         
naturally assume importance if the trial
 by jury should be restablished4        
,,contents4                             
,,page   ,,chapter ,i4   ,,the ,,right  
,,of ,,juries ,,to ,,judge ,,of ,,the   
,,justice ,,of ,,laws1         #e       
,,section #a1                           
#e               ,,section #b1          
#aa   ,,chapter ,,ii4  ,,the ,,trial    
,,by ,,jury1 ,,as ,,defined ,,by ,,magna
 ,,carta1               #bj             
,,section #a4 ,the ,history of ,magna   
,carta1                    #bj          
,,section #b4 ,the ,language of ,magna  
,carta1                   #be           
,,chapter ,,iii4  ,,additional ,,proofs 
,,of ,,the ,,rights ,,and ,,duties ,,of 
,,jurors1      #ea                      
,,section #a4 ,weakness of the ,regal   
,authority1              #ea            
,,section #b4 ,the ,ancient ,common ,law
 ,juries were mere               ,courts

 of ,conscience1                        
#fc                ,,section #c4 ,the   
,oaths of ,jurors1                      
#he                ,,section #d4 ,the   
,right of ,jurors to fix the ,sentence1 
#ia                ,,section #e4 ,the   
,oaths of ,judges1                      
#ih                ,,section #f4 ,the   
,coronation ,oath1                      
#ajb   ,,chapter ,,iv4   ,,the ,,rights 
,,and ,,duties ,,of ,,juries ,,in       
,,civil ,,suits1           #aaj         
,,chapter ,v4    ,,objections           
,,answered1                             
#abh   ,,chapter ,,vi4   ,,juries ,,of  
,,the ,,present ,,day ,,illegal1        
#adb   ,,chapter ,,vii4  ,,illegal      
,,judges1                               
#aeg   ,,chapter ,,viii4 ,,the ,,free   
,,administration ,,of ,,justice1        
#agb   ,,chapter ,,ix4   ,,the          
,,criminal ,,intent1                    
#agh   ,,chapter ,x4    ,,moral         
,,considerations ,,for ,,jurors1        
#ahi   ,,chapter ,,xi4   ,,authority    

,,of ,,magna ,,carta1                   
#aib   ,,chapter ,,xii4  ,,limitations  
,,imposed ,,upon ,,the ,,majority ,,by  
,,the ,,trial ,,by ,,jury1              
#bjf   ,,appendix--,,taxation1          
#bbb     ,,trial ,,by ,,jury4           
,,chapter ,i4  ,,the ,,right ,,of       
,,juries ,,to ,,judge ,,of ,,the        
,,justice ,,of ,,laws4   ,,section ,i4  
,for more than six hundred years--that  
is1 since ,magna ,carta1 in #abae--there
 has been no clearer principle of       
,english or ,american constitutional    
law1 than that1 in criminal cases1 it is
 not only the right and duty of juries  
to judge what are the facts1 what is the
 law1 and what was the moral intent of  
the accused2 but that it is also their  
right1 and their primary and paramount  
duty1 to judge of the justice of the    
law1 and to hold all laws invalid1 that 
are1 in their opinion1 unjust or        
oppressive1 and all persons guiltless in
 violating1 or resisting the execution  
of1 such laws4  ,unless such be the     

right and duty of jurors1 it is plain   
that1 instead of juries being a         
palladium of liberty--a barrier against 
the tyranny and oppression of the       
government--they are really mere tools  
in its hands1 for carrying into         
execution any injustice and oppression  
it may desire to have executed4  ,but   
for their right to judge of the law1 and
 the justice of the law1 juries would be
 no protection to an accused person1    
even as to matters of fact2 for1 if the 
government can dictate to a jury any law
 whatever1 in a criminal case1 it can   
certainly dictate to them the laws of   
evidence4 ,that is1 it can dictate what 
evidence is admissible1 and what        
inadmissible1 and also what force or    
weight is to be given to the evidence   
admitted4 ,and if the government can    
thus dictate to a jury the laws of      
evidence1 it can not only make it       
necessary for them to convict on a      
partial exhibition of the evidence      
rightfully pertaining to the case1 but  

it can even require them to convict on  
any evidence whatever that it pleases to
 offer them4  ,that the rights and      
duties of jurors must necessarily be    
such as are here claimed for them1 will 
be evident when it is considered what   
the trial by jury is1 and what is its   
object4  ,the trial by jury1 then1 is a 
trial by the country--that is1 by the   
people--as distinguished from a trial by
 the government4  ,it was anciently     
called trial per pais--that is1 trial by
 the country4 ,and now1 in every        
criminal trial1 the jury are told that  
the accused has1 for trial1 put himself 
upon the country2 which country you 7the
 jury7 are4  ,the object of this trial  
by the country or by the people1 in     
preference to a trial by the government1
 is to guard against every species of   
oppression by the government4 ,in order 
to effect this end1 it is indispensable 
that the people1 or the country1 judge  
of and determine their own liberties    
against the government2 instead of the  

government's judging of and determining 
its own powers over the people4 ,how is 
it possible that juries can do anything 
to protect the liberties of the people  
against the government1 if they are not 
allowed to determine what those         
liberties are8  ,any government1 that is
 its own judge of1 and determines       
authoritatively for the people1 what are
 its own powers over the people1 is an  
absolute government of course4 ,it has  
all the powers that it chooses to       
exercise4 ,there is no other--or at     
least no more accurate--definition of a 
despotism than this4  ,on the other     
hand1 any people1 that judge of1 and    
determine authoritatively for the       
government1 what are their own liberties
 against the government1 of course      
retain all the liberties they wish to   
enjoy4 ,and this is freedom4 ,at least1 
it is freedom to them2 because1 although
 it may be theoretically imperfect1 it1 
nevertheless1 corresponds to their      
highest notions of freedom4  ,to secure 

this right of the people to judge of    
their own liberties against the         
government1 the jurors are taken1 7or   
must be1 to make them lawful jurors17   
from the body of the people1 by lot1 or 
by some process that precludes any      
previous knowledge1 choice1 or selection
 of them1 on the part of the government4
 ,this is done to prevent the           
government's constituting a jury of its 
own partisans or friends2 in other      
words1 to prevent the government's      
packing a jury1 with a view to maintain 
its own laws1 and accomplish its own    
purposes4  ,it is supposed that1 if     
twelve men be taken1 by lot1 from the   
mass of the people1 without the         
possibility of any previous knowledge1  
choice1 or selection of them1 on the    
part of the government1 the jury will be
 a fair epitome of the country at large1
 and not merely of the party or faction 
that sustain the measures of the        
government2 that substantially all      
classes of opinions1 prevailing among   

the people1 will be represented in the  
jury2 and especially that the opponents 
of the government1 7if the government   
have any opponents17 will be represented
 there1 as well as its friends2 that the
 classes1 who are oppressed by the laws 
of the government1 7if any are thus     
oppressed17 will have their             
representatives in the jury1 as well as 
those classes1 who take sides with the  
oppressor--that is1 with the government4
  ,it is fairly presumable that such a  
tribunal will agree to no conviction    
except such as substantially the whole  
country would agree to1 if they were    
present1 taking part in the trial4 ,a   
trial by such a tribunal is1 therefore1 
in effect1 a trial by the country4 ,in  
its results it probably comes as near to
 a trial by the whole country1 as any   
trial that it is practicable to have1   
without too great inconvenience and     
expense4 ,and as unanimity is required  
for a conviction1 it follows that no one
 can be convicted1 except for the       

violation of such laws as substantially 
the whole country wish to have          
maintained4 ,the government can enforce 
none of its laws1 7by punishing         
offenders1 through the verdicts of      
juries17 except such as substantially   
the whole people wish to have enforced4 
,the government1 therefore1 consistently
 with the trial by jury1 can exercise no
 powers over the people1 7or1 what is   
the same thing1 over the accused person1
 who represents the rights of the       
people17 except such as substantially   
the whole people of the country consent 
that it may exercise4 ,in such a trial1 
therefore1 the country1 or the people1  
judge of and determine their own        
liberties against the government1       
instead of the government's judging of  
and determining its own powers over the 
people4  ,but all this trial by the     
country would be no trial at all by the 
country1 but only a trial by the        
government1 if the government could     
either declare who may1 and who may not1

 be jurors1 or could dictate to the jury
 anything whatever1 either of law or    
evidence1 that is of the essence of the 
trial4  ,if the government may decide   
who may1 and who may not1 be jurors1 it 
will of course select only its          
partisans1 and those friendly to its    
measures4 ,it may not only prescribe who
 may1 and who may not1 be eligible to be
 drawn as jurors2 but it may also       
question each person drawn as a juror1  
as to his sentiments in regard to the   
particular law involved in each trial1  
before suffering him to be sworn on the 
panel2 and exclude him if he be found   
unfavorable to the maintenance of such a
 law4#a  ,so1 also1 if the government   
may dictate to the jury what laws they  
are to enforce1 it is no longer a trial 
by the country1 but a trial by the      
government2 because the jury then try   
the accused1 not by any standard of     
their own--not by their own judgments of
 their rightful liberties--but by a     
standard dictated to them by the        

government4 ,and the standard1 thus     
dictated by the government1 becomes the 
measure of the people's liberties4 ,if  
the government dictate the standard of  
trial1 it of course dictates the results
 of the trial4 ,and such a trial is no  
trial by the country1 but only a trial  
by the government2 and in it the        
government determines what are its own  
powers over the people1 instead of the  
people's determining what are their own 
liberties against the government4 ,in   
short1 if the jury have no right to     
judge of the justice of a law of the    
government1 they plainly can do nothing 
to protect the people against the       
oppressions of the government2 for there
 are no oppressions which the government
 may not authorize by law4  ,the jury   
are also to judge whether the laws are  
rightly expounded to them by the court4 
,unless they judge on this point1 they  
do nothing to protect their liberties   
against the oppressions that are capable
 of being practised under cover of a    

corrupt exposition of the laws4 ,if the 
judiciary can authoritatively dictate to
 a jury any exposition of the law1 they 
can dictate to them the law itself1 and 
such laws as they please2 because laws  
are1 in practice1 one thing or another1 
according as they are expounded4  ,the  
jury must also judge whether there      
really be any such law1 7be it good or  
bad17 as the accused is charged with    
having transgressed4 ,unless they judge 
on this point1 the people are liable to 
have their liberties taken from them by 
brute force1 without any law at all4    
,the jury must also judge of the laws of
 evidence4 ,if the government can       
dictate to a jury the laws of evidence1 
it can not only shut out any evidence it
 pleases1 tending to vindicate the      
accused1 but it can require that any    
evidence whatever1 that it pleases to   
offer1 be held as conclusive proof of   
any offence whatever which the          
government chooses to allege4  ,it is   
manifest1 therefore1 that the jury must 

judge of and try the whole case1 and    
every part and parcel of the case1 free 
of any dictation or authority on the    
part of the government4 ,they must judge
 of the existence of the law2 of the    
true exposition of the law2 of the      
justice of the law2 and of the          
admissibility and weight of all the     
evidence offered2 otherwise the         
government will have everything its own 
way2 the jury will be mere puppets in   
the hands of the government2 and the    
trial will be1 in reality1 a trial by   
the government1 and not a trial by the  
country4 ,by such trials the government 
will determine its own powers over the  
people1 instead of the people's         
determining their own liberties against 
the government2 and it will be an entire
 delusion to talk1 as for centuries we  
have done1 of the trial by jury1 as a   
palladium of liberty1 or as any         
protection to the people against the    
oppression and tyranny of the           
government4  ,the question1 then1       

between trial by jury1 as thus          
described1 and trial by the government1 
is simply a question between liberty and
 despotism4 ,the authority to judge what
 are the powers of the government1 and  
what the liberties of the people1 must  
necessarily be vested in one or the     
other of the parties themselves--the    
government1 or the people2 because there
 is no third party to whom it can be    
entrusted4 ,if the authority be vested  
in the government1 the government is    
absolute1 and the people have no        
liberties except such as the government 
sees fit to indulge them with4 ,if1 on  
the other hand1 that authority be vested
 in the people1 then the people have all
 liberties1 7as against the government17
 except such as substantially the whole 
people 7through a jury7 choose to       
disclaim2 and the government can        
exercise no power except such as        
substantially the whole people 7through 
a jury7 consent that it may exercise4   
,,section ,,ii4  ,the force and justice 

of the preceding argument cannot be     
evaded by saying that the government is 
chosen by the people2 that1 in theory1  
it represents the people2 that it is    
designed to do the will of the people2  
that its members are all sworn to       
observe the fundamental or              
constitutional law instituted by the    
people2 that its acts are therefore     
entitled to be considered the acts of   
the people2 and that to allow a jury1   
representing the people1 to invalidate  
the acts of the government1 would       
therefore be arraying the people against
 themselves4  ,there are two answers to 
such an argument4  ,one answer is1 that1
 in a representative government1 there  
is no absurdity or contradiction1 nor   
any arraying of the people against      
themselves1 in requiring that the       
statutes or enactments of the government
 shall pass the ordeal of any number of 
separate tribunals1 before it shall be  
determined that they are to have the    
force of laws4 ,our ,american           

constitutions have provided five of     
these separate tribunals1 to wit1       
representatives1 senate1 executive1#b   
jury1 and judges2 and have made it      
necessary that each enactment shall pass
 the ordeal of all these separate       
tribunals1 before its authority can be  
established by the punishment of those  
who choose to transgress it4 ,and there 
is no more absurdity or inconsistency in
 making a jury one of these several     
tribunals1 than there is in making the  
representatives1 or the senate1 or the  
executive1 or the judges1 one of them4  
,there is no more absurdity in giving a 
jury a veto upon the laws1 than there is
 in giving a veto to each of these other
 tribunals4 ,the people are no more     
arrayed against themselves1 when a jury 
puts its veto upon a statute1 which the 
other tribunals have sanctioned1 than   
they are when the same veto is exercised
 by the representatives1 the senate1 the
 executive1 or the judges4  ,but another
 answer to the argument that the people 

are arrayed against themselves1 when a  
jury hold an enactment of the government
 invalid1 is1 that the government1 and  
all the departments of the government1  
are merely the servants and agents of   
the people2 not invested with arbitrary 
or absolute authority to bind the       
people1 but required to submit all their
 enactments to the judgment of a        
tribunal more fairly representing the   
whole people1 before they carry them    
into execution1 by punishing any        
individual for transgressing them4 ,if  
the government were not thus required to
 submit their enactments to the judgment
 of the country1 before executing them  
upon individuals--if1 in other words1   
the people had reserved to themselves no
 veto upon the acts of the government1  
the government1 instead of being a mere 
servant and agent of the people1 would  
be an absolute despot over the people4  
,it would have all power in its own     
hands2 because the power to punish      
carries all other powers with it4 ,a    

power that can1 of itself1 and by its   
own authority1 punish disobedience1 can 
compel obedience and submission1 and is 
above all responsibility for the        
character of its laws4 ,in short1 it is 
a despotism4  ,and it is of no          
consequence to inquire how a government 
came by this power to punish1 whether by
 prescription1 by inheritance1 by       
usurpation1 or by delegation from the   
people8 ,if it have now but got it1 the 
government is absolute4  ,it is plain1  
therefore1 that if the people have      
invested the government with power to   
make laws that absolutely bind the      
people1 and to punish the people for    
transgressing those laws1 the people    
have surrendered their liberties        
unreservedly into the hands of the      
government4  ,it is of no avail to say1 
in answer to this view of the case1 that
 in surrendering their liberties into   
the hands of the government1 the people 
took an oath from the government1 that  
it would exercise its power within      

certain constitutional limits2 for when 
did oaths ever restrain a government    
that was otherwise unrestrained8 ,or    
when did a government fail to determine 
that all its acts were within the       
constitutional and authorized limits of 
its power1 if it were permitted to      
determine that question for itself8     
,neither is it of any avail to say1     
that1 if the government abuse its power1
 and enact unjust and oppressive laws1  
the government may be changed by the    
influence of discussion1 and the        
exercise of the right of suffrage4      
,discussion can do nothing to prevent   
the enactment1 or procure the repeal1 of
 unjust laws1 unless it be understood   
that the discussion is to be followed by
 resistance4 ,tyrants care nothing for  
discussions that are to end only in     
discussion4 ,discussions1 which do not  
interfere with the enforcement of their 
laws1 are but idle wind to them4        
,suffrage is equally powerless and      
unreliable4 ,it can be exercised only   

periodically2 and the tyranny must at   
least be borne until the time for       
suffrage comes4 ,besides1 when the      
suffrage is exercised1 it gives no      
guaranty for the repeal of existing laws
 that are oppressive1 and no security   
against the enactment of new ones that  
are equally so4 ,the second body of     
legislators are liable and likely to be 
just as tyrannical as the first4 ,if it 
be said that the second body may be     
chosen for their integrity1 the answer  
is1 that the first were chosen for that 
very reason1 and yet proved tyrants4    
,the second will be exposed to the same 
temptations as the first1 and will be   
just as likely to prove tyrannical4 ,who
 ever heard that succeeding legislatures
 were1 on the whole1 more honest than   
those that preceded them8 ,what is there
 in the nature of men or things to make 
them so8 ,if it be said that the first  
body were chosen from motives of        
injustice1 that fact proves that there  
is a portion of society who desire to   

establish injustice2 and if they were   
powerful or artful enough to procure the
 election of their instruments to       
compose the first legislature1 they will
 be likely to be powerful or artful     
enough to procure the election of the   
same or similar instruments to compose  
the second4 ,the right of suffrage1     
therefore1 and even a change of         
legislators1 guarantees no change of    
legislation--certainly no change for the
 better4 ,even if a change for the      
better actually comes1 it comes too     
late1 because it comes only after more  
or less injustice has been irreparably  
done4  ,but1 at best1 the right of      
suffrage can be exercised only          
periodically2 and between the periods   
the legislators are wholly              
irresponsible4 ,no despot was ever more 
entirely irresponsible than are         
republican legislators during the period
 for which they are chosen4 ,they can   
neither be removed from their office1   
nor called to account while in their    

office1 nor punished after they leave   
their office1 be their tyranny what it  
may4 ,moreover1 the judicial and        
executive departments of the government 
are equally irresponsible to the people1
 and are only responsible1 7by          
impeachment1 and dependence for their   
salaries71 to these irresponsible       
legislators4 ,this dependence of the    
judiciary and executive upon the        
legislature is a guaranty that they will
 always sanction and execute its laws1  
whether just or unjust4 ,thus the       
legislators hold the whole power of the 
government in their hands1 and are at   
the same time utterly irresponsible for 
the manner in which they use it4  ,if1  
now1 this government1 7the three        
branches thus really united in one71 can
 determine the validity of1 and enforce1
 its own laws1 it is1 for the time      
being1 entirely absolute1 and wholly    
irresponsible to the people4  ,but this 
is not all4 ,these legislators1 and this
 government1 so irresponsible while in  

power1 can perpetuate their power at    
pleasure1 if they can determine what    
legislation is authoritative upon the   
people1 and can enforce obedience to it2
 for they can not only declare their    
power perpetual1 but they can enforce   
submission to all legislation that is   
necessary to secure its perpetuity4     
,they can1 for example1 prohibit all    
discussion of the rightfulness of their 
authority2 forbid the use of the        
suffrage2 prevent the election of any   
successors2 disarm1 plunder1 imprison1  
and even kill all who refuse submission4
 ,if1 therefore1 the government 7all    
departments united7 be absolute for a   
day--that is1 if it can1 for a day1     
enforce obedience to its own laws--it   
can1 in that day1 secure its power for  
all time--like the queen1 who wished to 
reign but for a day1 but in that day    
caused the king1 her husband1 to be     
slain1 and usurped his throne4  ,nor    
will it avail to say that such acts     
would be unconstitutional1 and that     

unconstitutional acts may be lawfully   
resisted2 for everything a government   
pleases to do will1 of course1 be       
determined to be constitutional1 if the 
government itself be permitted to       
determine the question of the           
constitutionality of its own acts4      
,those who are capable of tyranny1 are  
capable of perjury to sustain it4  ,the 
conclusion1 therefore1 is1 that any     
government1 that can1 for a day1 enforce
 its own laws1 without appealing to the 
people1 7or to a tribunal fairly        
representing the people17 for their     
consent1 is1 in theory1 an absolute     
government1 irresponsible to the people1
 and can perpetuate its power at        
pleasure4  ,the trial by jury is based  
upon a recognition of this principle1   
and therefore forbids the government to 
execute any of its laws1 by punishing   
violators1 in any case whatever1 without
 first getting the consent of the       
country1 or the people1 through a jury4 
,in this way1 the people1 at all times1 

hold their liberties in their own hands1
 and never surrender them1 even for a   
moment1 into the hands of the           
government4  ,the trial by jury1 then1  
gives to any and every individual the   
liberty1 at any time1 to disregard or   
resist any law whatever of the          
government1 if he be willing to submit  
to the decision of a jury1 the          
questions1 whether the law be           
intrinsically just and obligatory8 and  
whether his conduct1 in disregarding or 
resisting it1 were right in itself8 ,and
 any law1 which does not1 in such trial1
 obtain the unanimous sanction of twelve
 men1 taken at random from the people1  
and judging according to the standard of
 justice in their own minds1 free from  
all dictation and authority of the      
government1 may be transgressed and     
resisted with impunity1 by whomsoever   
pleases to transgress or resist it4#c   
,the trial by jury authorizes all this1 
or it is a sham and a hoax1 utterly     
worthless for protecting the people     

against oppression4 ,if it do not       
authorize an individual to resist the   
first and least act of injustice or     
tyranny1 on the part of the government1 
it does not authorize him to resist the 
last and the greatest4 ,if it do not    
authorize individuals to nip tyranny in 
the bud1 it does not authorize them to  
cut it down when its branches are filled
 with the ripe fruits of plunder and    
oppression4  ,those who deny the right  
of a jury to protect an individual in   
resisting an unjust law of the          
government1 deny him all legal defence  
whatsoever against oppression4 ,the     
right of revolution1 which tyrants1 in  
mockery1 accord to mankind1 is no legal 
right under a government2 it is only a  
natural right to overturn a government4 
,the government itself never            
acknowledges this right4 ,and the right 
is practically established only when and
 because the government no longer exists
 to call it in question4 ,the right1    
therefore1 can be exercised with        

impunity1 only when it is exercised     
victoriously4 ,all unsuccessful attempts
 at revolution1 however justifiable in  
themselves1 are punished as treason1 if 
the government be permitted to judge of 
the treason4 ,the government itself     
never admits the injustice of its laws1 
as a legal defence for those who have   
attempted a revolution1 and failed4 ,the
 right of revolution1 therefore1 is a   
right of no practical value1 except for 
those who are stronger than the         
government4 ,so long1 therefore1 as the 
oppressions of a government are kept    
within such limits as simply not to     
exasperate against it a power greater   
than its own1 the right of revolution   
cannot be appealed to1 and is therefore 
inapplicable to the case4 ,this affords 
a wide field for tyranny2 and if a jury 
cannot here intervene1 the oppressed are
 utterly defenceless4  ,it is manifest  
that the only security against the      
tyranny of the government lies in       
forcible resistance to the execution of 

the injustice2 because the injustice    
will certainly be executed1 unless it be
 forcibly resisted4 ,and if it be but   
suffered to be executed1 it must then be
 borne2 for the government never makes  
compensation for its own wrongs4        
,since1 then1 this forcible resistance  
to the injustice of the government is   
the only possible means of preserving   
liberty1 it is indispensable to all     
legal liberty that this resistance      
should be legalized4 ,it is perfectly   
self-evident that where there is no     
legal right to resist the oppression of 
the government1 there can be no legal   
liberty4 ,and here it is all-important  
to notice1 that1 practically speaking1  
there can be no legal right to resist   
the oppressions of the government1      
unless there be some legal tribunal1    
other than the government1 and wholly   
independent of1 and above1 the          
government1 to judge between the        
government and those who resist its     
oppressions2 in other words1 to judge   

what laws of the government are to be   
obeyed1 and what may be resisted and    
held for nought4 ,the only tribunal     
known to our laws1 for this purpose1 is 
a jury4 ,if a jury have not the right to
 judge between the government and those 
who disobey its laws1 and resist its    
oppressions1 the government is absolute1
 and the people1 legally speaking1 are  
slaves4 ,like many other slaves they may
 have sufficient courage and strength to
 keep their masters somewhat in check2  
but they are nevertheless known to the  
law only as slaves4  ,that this right of
 resistance was recognized as a common  
law right1 when the ancient and genuine 
trial by jury was in force1 is not only 
proved by the nature of the trial       
itself1 but is acknowledged by          
history4#d  ,this right of resistance is
 recognized by the constitution of the  
,united ,states1 as a strictly legal and
 constitutional right4 ,it is so        
recognized1 first by the provision that 
the trial of all crimes1 except in cases

 of impeachment1 shall be by jury--that 
is1 by the country--and not by the      
government2 secondly1 by the provision  
that the right of the people to keep and
 bear arms shall not be infringed4 ,this
 constitutional security for the right  
to keep and bear arms1 implies the right
 to use them--as much as a              
constitutional security for the right to
 buy and keep food would have implied   
the right to eat it4 ,the constitution1 
therefore1 takes it for granted that the
 people will judge of the conduct of the
 government1 and that1 as they have the 
right1 they will also have the sense1 to
 use arms1 whenever the necessity of the
 case justifies it4 ,and it is a        
sufficient and legal defence for a      
person accused of using arms against the
 government1 if he can show1 to the     
satisfaction of a jury1 or even any one 
of a jury1 that the law he resisted was 
an unjust one4  ,in the ,american ,state
 constitutions also1 this right of      
resistance to the oppressions of the    

government is recognized1 in various    
ways1 as a natural1 legal1 and          
constitutional right4 ,in the first     
place1 it is so recognized by provisions
 establishing the trial by jury2 thus   
requiring that accused persons shall be 
tried by the country1 instead of the    
government4 ,in the second place1 it is 
recognized by many of them1 as1 for     
example1 those of ,massachusetts1       
,maine1 ,vermont1 ,connecticut1         
,pennsylvania1 ,ohio1 ,indiana1         
,michigan1 ,kentucky1 ,tennessee1       
,arkansas1 ,mississippi1 ,alabama1 and  
,florida1 by provisions expressly       
declaring that the people shall have the
 right to bear arms4 ,in many of them   
also1 as1 for example1 those of ,maine1 
,new ,hampshire1 ,vermont1              
,massachusetts1 ,new ,jersey1           
,pennsylvania1 ,delaware1 ,ohio1        
,indiana1 ,illinois1 ,florida1 ,iowa1   
and ,arkansas1 by provisions1 in their  
bills of rights1 declaring that men have
 a natural1 inherent1 and inalienable   

right of defending their lives and      
liberties4 ,this1 of course1 means that 
they have a right to defend them against
 any injustice on the part of the       
government1 and not merely on the part  
of private individuals2 because the     
object of all bills of rights is to     
assert the rights of individuals and the
 people1 as against the government1 and 
not as against private persons4 ,it     
would be a matter of ridiculous         
supererogation to assert1 in a          
constitution of government1 the natural 
right of men to defend their lives and  
liberties against private trespassers4  
,many of these bills of rights also     
assert the natural right of all men to  
protect their property--that is1 to     
protect it against the government4 ,it  
would be unnecessary and silly indeed to
 assert1 in a constitution of           
government1 the natural right of        
individuals to protect their property   
against thieves and robbers4  ,the      
constitutions of ,new ,hampshire and    

,tennessee also declare that ,the       
doctrine of non-resistance against      
arbitrary power and oppression is       
absurd1 slavish1 and destructive of the 
good and happiness of mankind4  ,the    
legal effect of these constitutional    
recognitions of the right of individuals
 to defend their property1 liberties1   
and lives1 against the government1 is to
 legalize resistance to all injustice   
and oppression1 of every name and nature
 whatsoever1 on the part of the         
government4  ,but for this right of     
resistance1 on the part of the people1  
all governments would become tyrannical 
to a degree of which few people are     
aware4 ,constitutions are utterly       
worthless to restrain the tyranny of    
governments1 unless it be understood    
that the people will1 by force1 compel  
the government to keep within the       
constitutional limits4 ,practically     
speaking1 no government knows any limits
 to its power1 except the endurance of  
the people4 ,but that the people are    

stronger than the government1 and will  
resist in extreme cases1 our governments
 would be little or nothing else than   
organized systems of plunder and        
oppression4 ,all1 or nearly all1 the    
advantage there is in fixing any        
constitutional limits to the power of a 
government1 is simply to give notice to 
the government of the point at which it 
will meet with resistance4 ,if the      
people are then as good as their word1  
they may keep the government within the 
bounds they have set for it2 otherwise  
it will disregard them--as is proved by 
the example of all our ,american        
governments1 in which the constitutions 
have all become obsolete1 at the moment 
of their adoption1 for nearly or quite  
all purposes except the appointment of  
officers1 who at once become practically
 absolute1 except so far as they are    
restrained by the fear of popular       
resistance4  ,the bounds set to the     
power of the government1 by the trial by
 jury1 as will hereafter be shown1 are  

these--that the government shall never  
touch the property1 person1 or natural  
or civil rights of an individual1       
against his consent1 7except for the    
purpose of bringing them before a jury  
for trial17 unless in pursuance and     
execution of a judgment1 or decree1     
rendered by a jury in each individual   
case1 upon such evidence1 and such law1 
as are satisfactory to their own        
understandings and consciences1         
irrespective of all legislation of the  
government4  ,footnote #a3 ,to show that
 this supposition is not an extravagant 
one1 it may be mentioned that courts    
have repeatedly questioned jurors to    
ascertain whether they were prejudiced  
against the government--that is1 whether
 they were in favor of1 or opposed to1  
such laws of the government as were to  
be put in issue in the then pending     
trial4 ,this was done 7in #ahea7 in the 
,united ,states ,district ,court for the
 ,district of ,massachusetts1 by ,peleg 
,sprague1 the ,united ,states district  

judge1 in empanelling three several     
juries for the trials of ,scott1        
,hayden1 and ,morris1 charged with      
having aided in the rescue of a fugitive
 slave from the custody of the ,united  
,states deputy marshal4 ,this judge     
caused the following question to be     
propounded to all the jurors separately2
 and those who answered unfavorably for 
the purposes of the government1 were    
excluded from the panel4     ,do you    
hold any opinions upon the subject of   
the ,fugitive ,slave ,law1    so called1
 which will induce you to refuse to     
convict a person    indicted under it1  
if the facts set forth in the           
indictment1 and    constituting the     
offence1 are proved against him1 and the
 court    direct you that the law is    
constitutional8  ,the reason of this    
question was1 that the ,fugitive ,slave 
,law1 so called1 was so obnoxious to a  
large portion of the people1 as to      
render a conviction under it hopeless1  
if the jurors were taken                

indiscriminately from among the people4 
,a similar question was soon afterwards 
propounded to the persons drawn as      
jurors in the ,united ,states ,circuit  
,court for the ,district of             
,massachusetts1 by ,benjamin ,r4 ,curtis
 one of the ,justices of the ,supreme   
,court of the ,united ,states1 in       
empanelling a jury for the trial of the 
aforesaid ,morris on the charge before  
mentioned2 and those who did not answer 
the question favorably for the          
government were again excluded from the 
panel4  ,it has also been an habitual   
practice with the ,supreme ,court of    
,massachusetts1 in empanelling juries   
for the trial of capital offences1 to   
inquire of the persons drawn as jurors  
whether they had any conscientious      
scruples against finding verdicts of    
guilty in such cases2 that is1 whether  
they had any conscientious scruples     
against sustaining the law prescribing  
death as the punishment of the crime to 
be tried2 and to exclude from the panel 

all who answered in the affirmative4    
,the only principle upon which these    
questions are asked1 is this--that no   
man shall be allowed to serve as juror1 
unless he be ready to enforce any       
enactment of the government1 however    
cruel or tyrannical it may be4  ,what is
 such a jury good for1 as a protection  
against the tyranny of the government8  
,a jury like that is palpably nothing   
but a mere tool of oppression in the    
hands of the government4 ,a trial by    
such a jury is really a trial by the    
government itself--and not a trial by   
the country--because it is a trial only 
by men specially selected by the        
government for their readiness to       
enforce its own tyrannical measures4    
,if that be the true principle of the   
trial by jury1 the trial is utterly     
worthless as a security to liberty4 ,the
 ,czar might1 with perfect safety to his
 authority1 introduce the trial by jury 
into ,russia1 if he could but be        
permitted to select his jurors from     

those who were ready to maintain his    
laws1 without regard to their injustice4
  ,this example is sufficient to show   
that the very pith of the trial by jury1
 as a safeguard to liberty1 consists in 
the jurors being taken indiscriminately 
from the whole people1 and in their     
right to hold invalid all laws which    
they think unjust4  ,footnote #b3 ,the  
executive has a qualified veto upon the 
passage of laws1 in most of our         
governments1 and an absolute veto1 in   
all of them1 upon the execution of any  
laws which he deems unconstitutional2   
because his oath to support the         
constitution 7as he understands it7     
forbids him to execute any law that he  
deems unconstitutional4  ,footnote #c3  
,and if there be so much as a reasonable
 doubt of the justice of the laws1 the  
benefit of that doubt must be given to  
the defendant1 and not to the           
government4 ,so that the government must
 keep its laws clearly within the limits
 of justice1 if it would ask a jury to  

enforce them4  ,footnote #d3 ,hallam    
says1 ,the relation established between 
a lord and his vassal by the feudal     
tenure1 far from containing principles  
of any servile and implicit obedience1  
permitted the compact to be dissolved in
 case of its violation by either party4 
,this extended as much to the sovereign 
as to inferior lords4 99 99 ,if a vassal
 was aggrieved1 and if justice was      
denied him1 he sent a defiance1 that is1
 a renunciation of fealty to the king1  
and was entitled to enforce redress at  
the point of his sword4 ,it then became 
a contest of strength as between two    
independent potentates1 and was         
terminated by treaty1 advantageous or   
otherwise1 according to the fortune of  
war4 99 99 ,there remained the original 
principle1 that allegiance depended     
conditionally upon good treatment1 and  
that an appeal might be lawfully made to
 arms against an oppressive government4 
,nor was this1 we may be sure1 left for 
extreme necessity1 or thought to require

 a long-enduring forbearance4 ,in modern
 times1 a king1 compelled by his        
subjects' swords to abandon any         
pretension1 would be supposed to have   
ceased to reign2 and the express        
recognition of such a right as that of  
insurrection has been justly deemed     
inconsistent with the majesty of law4   
,but ruder ages had ruder sentiments4   
,force was necessary to repel force2 and
 men accustomed to see the king's       
authority defied by a private riot1 were
 not much shocked when it was resisted  
in defence of public freedom4--#c       
,middle ,ages1 #bdj-b4     ,,chapter    
,,ii4  ,,the ,,trial ,,by ,,jury1 ,,as  
,,defined ,,by ,,magna ,,carta4   ,that 
the trial by jury is all that has been  
claimed for it in the preceding chapter1
 is proved both by the history and the  
language of the ,great ,charter of      
,english ,liberties1 to which we are to 
look for a true definition of the trial 
by jury1 and of which the guaranty for  
that trial is the vital1 and most       

memorable1 part4   ,,section ,i4  ,the  
,history of ,magna ,carta4  ,in order to
 judge of the object and meaning of that
 chapter of ,magna ,carta which secures 
the trial by jury1 it is to be borne in 
mind that1 at the time of ,magna ,carta1
 the king 7with exceptions immaterial to
 this discussion1 but which will appear 
hereafter7 was1 constitutionally1 the   
entire government2 the sole legislative1
 judicial1 and executive power of the   
nation4 ,the executive and judicial     
officers were merely his servants1      
appointed by him1 and removable at his  
pleasure4 ,in addition to this1 the king
 himself often sat in his court1 which  
always attended his person4 ,he there   
heard causes1 and pronounced judgment2  
and though he was assisted by the advice
 of other members1 it is not to be      
imagined that a decision could be       
obtained contrary to his inclination or 
opinion4#e ,judges were in those days1  
and afterwards1 such abject servants of 
the king1 that we find that ,king       

,edward ,i4 7#abgb to #acjg7 fined and  
imprisoned his judges1 in the same      
manner as ,alfred the ,great1 among the 
,saxons1 had done before him1 by the    
sole exercise of his authority4#f       
,parliament1 so far as there was a      
parliament1 was a mere council of the   
king4#g ,it assembled only at the       
pleasure of the king2 sat only during   
his pleasure2 and when sitting had no   
power1 so far as general legislation was
 concerned1 beyond that of simply       
advising the king4 ,the only legislation
 to which their assent was              
constitutionally necessary1 was demands 
for money and military services for     
extraordinary occasions4 ,even ,magna   
,carta itself makes no provisions       
whatever for any parliaments1 except    
when the king should want means to carry
 on war1 or to meet some other          
extraordinary necessity4#h ,he had no   
need of parliaments to raise taxes for  
the ordinary purposes of government2 for
 his revenues from the rents of the     

crown lands and other sources1 were     
ample for all except extraordinary      
occasions4 ,parliaments1 too1 when      
assembled1 consisted only of bishops1   
barons1 and other great men of the      
kingdom1 unless the king chose to invite
 others4#i ,there was no ,house of      
,commons at that time1 and the people   
had no right to be heard1 unless as     
petitioners4#aj  ,even when laws were   
made at the time of a parliament1 they  
were made in the name of the king alone4
 ,sometimes it was inserted in the laws1
 that they were made with the consent or
 advice of the bishops1 barons1 and     
others assembled2 but often this was    
omitted4 ,their consent or advice was   
evidently a matter of no legal          
importance to the enactment or validity 
of the laws1 but only inserted1 when    
inserted at all1 with a view of         
obtaining a more willing submission to  
them on the part of the people4 ,the    
style of enactment generally was1 either
 ,the ,king wills and commands1 or some 

other form significant of the sole      
legislative authority of the king4 ,the 
king could pass laws at any time when it
 pleased him4 ,the presence of a        
parliament was wholly unnecessary4 ,hume
 says1 ,it is asserted by ,sir ,harry   
,spelman1 as an undoubted fact1 that1   
during the reigns of the ,norman        
princes1 every order of the king1 issued
 with the consent of his privy council1 
had the full force of law4#aa ,and other
 authorities abundantly corroborate this
 assertion4#ab  ,the king was1          
therefore1 constitutionally the         
government2 and the only legal          
limitation upon his power seems to have 
been simply the ,common ,law1 usually   
called the law of the land1 which he was
 bound by oath to maintain2 7which oath 
had about the same practical value as   
similar oaths have always had47 ,this   
law of the land seems not to have been  
regarded at all by many of the kings1   
except so far as they found it          
convenient to do so1 or were constrained

 to observe it by the fear of arousing  
resistance4 ,but as all people are slow 
in making resistance1 oppression and    
usurpation often reached a great height2
 and1 in the case of ,john1 they had    
become so intolerable as to enlist the  
nation almost universally against him2  
and he was reduced to the necessity of  
complying with any terms the barons saw 
fit to dictate to him4  ,it was under   
these circumstances1 that the ,great    
,charter of ,english ,liberties was     
granted4 ,the barons of ,england1       
sustained by the common people1 having  
their king in their power1 compelled    
him1 as the price of his throne1 to     
pledge himself that he would punish no  
freeman for a violation of any of his   
laws1 unless with the consent of the    
peers--that is1 the equals--of the      
accused4  ,the question here arises1    
,whether the barons and people intended 
that those peers 7the jury7 should be   
mere puppets in the hands of the king1  
exercising no opinion of their own as to

 the intrinsic merits of the accusations
 they should try1 or the justice of the 
laws they should be called on to        
enforce8 ,whether those haughty and     
victorious barons1 when they had their  
tyrant king at their feet1 gave back to 
him his throne1 with full power to enact
 any tyrannical laws he might please1   
reserving only to a jury 7the country7  
the contemptible and servile privilege  
of ascertaining1 7under the dictation of
 the king1 or his judges1 as to the laws
 of evidence71 the simple fact whether  
those laws had been transgressed8 ,was  
this the only restraint1 which1 when    
they had all power in their hands1 they 
placed upon the tyranny of a king1 whose
 oppressions they had risen in arms to  
resist8 ,was it to obtain such a charter
 as that1 that the whole nation had     
united1 as it were1 like one man1       
against their king8 ,was it on such a   
charter that they intended to rely1 for 
all future time1 for the security of    
their liberties8 ,no4 ,they were engaged

 in no such senseless work as that4 ,on 
the contrary1 when they required him to 
renounce forever the power to punish any
 freeman1 unless by the consent of his  
peers1 they intended those peers should 
judge of1 and try1 the whole case on its
 merits1 independently of all arbitrary 
legislation1 or judicial authority1 on  
the part of the king4 ,in this way they 
took the liberties of each              
individual--and thus the liberties of   
the whole people--entirely out of the   
hands of the king1 and out of the power 
of his laws1 and placed them in the     
keeping of the people themselves4 ,and  
this it was that made the trial by jury 
the palladium of their liberties4  ,the 
trial by jury1 be it observed1 was the  
only real barrier interposed by them    
against absolute despotism4 ,could this 
trial1 then1 have been such an entire   
farce as it necessarily must have been1 
if the jury had had no power to judge of
 the justice of the laws the people were
 required to obey8 ,did it not rather   

imply that the jury were to judge       
independently and fearlessly as to      
everything involved in the charge1 and  
especially as to its intrinsic justice1 
and thereon give their decision1        
7unbiased by any legislation of the     
king17 whether the accused might be     
punished8 ,the reason of the thing1 no  
less than the historical celebrity of   
the events1 as securing the liberties of
 the people1 and the veneration with    
which the trial by jury has continued to
 be regarded1 notwithstanding its       
essence and vitality have been almost   
entirely extracted from it in practice1 
would settle the question1 if other     
evidences had left the matter in doubt4 
,besides1 if his laws were to be        
authoritative with the jury1 why should 
,john indignantly refuse1 as at first he
 did1 to grant the charter1 7and finally
 grant it only when brought to the last 
extremity17 on the ground that it       
deprived him of all power1 and left him 
only the name of a king8 ,he evidently  

understood that the juries were to veto 
his laws1 and paralyze his power1 at    
discretion1 by forming their own        
opinions as to the true character of the
 offences they were to try1 and the laws
 they were to be called on to enforce2  
and that the king wills and commands was
 to have no weight with them contrary to
 their own judgments of what was        
intrinsically right4#ac  ,the barons and
 people having obtained by the charter  
all the liberties they had demanded of  
the king1 it was further provided by the
 charter itself that twenty-five barons 
should be appointed by the barons1 out  
of their number1 to keep special        
vigilance in the kingdom to see that the
 charter was observed1 with authority to
 make war upon the king in case of its  
violation4 ,the king also1 by the       
charter1 so far absolved all the people 
of the kingdom from their allegiance to 
him1 as to authorize and require them to
 swear to obey the twenty-five barons1  
in case they should make war upon the   

king for infringement of the charter4   
,it was then thought by the barons and  
people1 that something substantial had  
been done for the security of their     
liberties4  ,this charter1 in its most  
essential features1 and without any     
abatement as to the trial by jury1 has  
since been confirmed more than thirty   
times2 and the people of ,england have  
always had a traditionary idea that it  
was of some value as a guaranty against 
oppression4 ,yet that idea has been an  
entire delusion1 unless the jury have   
had the right to judge of the justice of
 the laws they were called on to        
enforce4   ,,section ,,ii4  ,the        
,language of ,magna ,carta4  ,the       
language of the ,great ,charter         
establishes the same point that is      
established by its history1 viz41 that  
it is the right and duty of the jury to 
judge of the justice of the laws4  ,the 
chapter guaranteeing the trial by jury  
is in these words3     ,nullus liber    
homo capiatur1 vel imprisonetur1 aut    

disseisetur1 aut    utlagetur1 aut      
exuletur1 aut aliquo modo destruatur2   
nec super eum    ibimus1 nec super eum  
mittemus1 nisi per legale judicium      
parium    suorum1 vel per legem terr4#ad
  ,the corresponding chapter in the     
,great ,charter1 granted by ,henry      
,,iii41 7#abbe17 and confirmed by       
,edward ,i41 7#abig17 7which charter is 
now considered the basis of the ,english
 laws and constitution17 is in nearly   
the same words1 as follows3     ,nullus 
liber homo capiatur1 vel imprisonetur1  
aut disseisetur de    libero tenemento1 
vel libertatibus1 vel liberis           
consuetudinibus suis1    aut utlagetur1 
aut exuletur1 aut aliquo modo           
destruatur1 nec super    eum ibimus1 nec
 super eum mittemus1 nisi per legale    
judicium parium    suorum1 vel per legem
 terr4  ,the most common translation of 
these words1 at the present day1 is as  
follows3     ,no freeman shall be       
arrested1 or imprisoned1 or deprived of 
his    freehold1 or his liberties1 or   

free customs1 or outlawed1 or exiled1   
or in any manner destroyed1 nor will we 
7the king7 pass upon him1    nor condemn
 him1 unless by the judgment of his     
peers1 or the law of    the land4       
,nec super eum ibimus1 nec super eum    
mittemus4  ,there has been much         
confusion and doubt as to the true      
meaning of the words1 nec super eum     
ibimus1 nec super eum mittemus4 ,the    
more common rendering has been1 nor will
 we pass upon him1 nor condemn him4 ,but
 some have translated them to mean1 nor 
will we pass upon him1 nor commit him to
 prison4 ,coke gives still a different  
rendering1 to the effect that ,no man   
shall be condemned at the king's suit1  
either before the king in his bench1 nor
 before any other commissioner or judge 
whatsoever4#ae  ,but all these          
translations are clearly erroneous4 ,in 
the first place1 nor will we pass upon  
him1--meaning thereby to decide upon his
 guilt or innocence judicially--is not a
 correct rendering of the words1 nec    

super eum ibimus4 ,there is nothing     
whatever1 in these latter words1 that   
indicates judicial action or opinion at 
all4 ,the words1 in their common        
signification1 describe physical action 
alone4 ,and the true translation of     
them1 as will hereafter be seen1 is1 nor
 will we proceed against him1           
executively4  ,in the second place1 the 
rendering1 nor will we condemn him1     
bears little or no analogy to any       
common1 or even uncommon1 signification 
of the words nec super eum mittemus4    
,there is nothing in these latter words 
that indicates judicial action or       
decision4 ,their common signification1  
like that of the words nec super eum    
ibimus1 describes physical action alone4
 ,nor will we send upon 7or against7    
him1 would be the most obvious          
translation1 and1 as we shall hereafter 
see1 such is the true translation4  ,but
 although these words describe physical 
action1 on the part of the king1 as     
distinguished from judicial1 they       

nevertheless do not mean1 as one of the 
translations has it1 nor will we commit 
him to prison2 for that would be a mere 
repetition of what had been already     
declared by the words nec imprisonetur4 
,besides1 there is nothing about prisons
 in the words nec super eum mittemus2   
nothing about sending him anywhere2 but 
only about sending 7something or        
somebody7 upon him1 or against him--that
 is1 executively4  ,coke's rendering is1
 if possible1 the most absurd and       
gratuitous of all4 ,what is there in the
 words1 nec super eum mittemus that can 
be made to mean nor shall he be         
condemned before any other commissioner 
or judge whatsoever8 ,clearly there is  
nothing4 ,the whole rendering is a sheer
 fabrication4 ,and the whole object of  
it is to give color for the exercise of 
a judicial power1 by the king1 or his   
judges1 which is nowhere given them4    
,neither the words1 nec super eum       
ibimus1 nec super eum mittemus1 nor any 
other words in the whole chapter1       

authorize1 provide for1 describe1 or    
suggest1 any judicial action whatever1  
on the part either of the king1 or of   
his judges1 or of anybody1 except the   
peers1 or jury4 ,there is nothing about 
the king's judges at all4 ,and there is 
nothing whatever1 in the whole chapter1 
so far as relates to the action of the  
king1 that describes or suggests        
anything but executive action4#af  ,but 
that all these translations are         
certainly erroneous1 is proved by a     
temporary charter1 granted by ,john a   
short time previous to the ,great       
,charter1 for the purpose of giving an  
opportunity for conference1 arbitration1
 and reconciliation between him and his 
barons4 ,it was to have force until the 
matters in controversy between them     
could be submitted to the ,pope1 and to 
other persons to be chosen1 some by the 
king1 and some by the barons4 ,the words
 of the charter are as follows3         
,sciatis nos concessisse baronibus      
nostris qui contra nos sunt quod nec eos

 nec homines suos capiemus1 nec         
disseisiemus nec super eos per vim vel  
per arma ibimus nisi per legem regni    
nostri vel per judicium parium suorum in
 curia nostra donec consideratio facta  
fuerit1 c41 c4  ,that is1 ,know that we 
have granted to our barons who are      
opposed to us1 that we will neither     
arrest them nor their men1 nor disseize 
them1 nor will we proceed against them  
by force or by arms1 unless by the law  
of our kingdom1 or by the judgment of   
their peers in our court1 until         
consideration shall be had1 c41 c4  ,a  
copy of this charter is given in a note 
in ,blackstone's ,introduction to the   
,charters4#ag  ,mr4 ,christian speaks of
 this charter as settling the true      
meaning of the corresponding clause of  
,magna ,carta1 on the principle that    
laws and charters on the same subject   
are to be construed with reference to   
each other4 ,see #c ,christian's        
,blackstone1 #da1 note4  ,the true      
meaning of the words1 nec super eum     

ibimus1 nec super eum mittemus1 is also 
proved by the ,articles of the ,great   
,charter of ,liberties1 demanded of the 
king by the barons1 and agreed to by the
 king1 under seal1 a few days before the
 date of the ,charter1 and from which   
the ,charter was framed4#ah ,here the   
words used are these3     ,ne corpus    
liberi hominis capiatur nec imprisonetur
 nec disseisetur    nec utlagetur nec   
exuletur nec aliquo modo destruatur nec 
rex eat    vel mittat super eum vi nisi 
per judicium parium suorum vel per      
legem terr4     ,that is1 ,the body of a
 freeman shall not be arrested1 nor     
imprisoned1 nor disseized1 nor outlawed1
 nor exiled1 nor in any    manner       
destroyed1 nor shall the king proceed or
 send 7any one7    against him ,,with   
,,force1 unless by the judgment of his  
peers1 or the    law of the land4  ,the 
true translation of the words nec super 
eum ibimus1 nec super eum mittemus1 in  
,magna ,carta1 is thus made certain1 as 
follows1 nor will we 7the king7 proceed 

against him1 nor send 7any one7 against 
him ,,with ,,force ,,or ,,arms4#ai  ,it 
is evident that the difference between  
the true and false translations of the  
words1 nec super eum ibimus1 nec super  
eum mittemus1 is of the highest legal   
importance1 inasmuch as the true        
translation1 nor will we 7the king7     
proceed against him1 nor send 7any one7 
against him by force or arms1 represents
 the king only in an executive          
character1 carrying the judgment of the 
peers and the law of the land into      
execution2 whereas the false            
translation1 nor will we pass upon him1 
nor condemn him1 gives color for the    
exercise of a judicial power1 on the    
part of the king1 to which the king had 
no right1 but which1 according to the   
true translation1 belongs wholly to the 
jury4     ,per legale judicium parium   
suorum4  ,the foregoing interpretation  
is corroborated1 7if it were not already
 too plain to be susceptible of         
corroboration17 by the true             

interpretation of the phrase per legale 
judicium parium suorum4  ,in giving this
 interpretation1 ,i leave out1 for the  
present1 the word legale1 which will be 
defined afterwards4  ,the true meaning  
of the phrase1 per judicium parium      
suorum1 is1 according to the sentence of
 his peers4 ,the word judicium1         
judgment1 has a technical meaning in the
 law1 signifying the decree rendered in 
the decision of a cause4 ,in civil suits
 this decision is called a judgment2 in 
chancery proceedings it is called a     
decree2 in criminal actions it is called
 a sentence1 or judgment1 indifferently4
 ,thus1 in a criminal suit1 a motion in 
arrest of judgment means a motion in    
arrest of sentence4#bj  ,in cases of    
sentence1 therefore1 in criminal suits1 
the words sentence and judgment are     
synonymous terms4 ,they are1 to this    
day1 commonly used in law books as      
synonymous terms4 ,and the phrase per   
judicium parium suorum1 therefore1      
implies that the jury are to fix the    

sentence4  ,the word per means according
 to4 ,otherwise there is no sense in the
 phrase per judicium parium suorum4     
,there would be no sense in saying that 
a king might imprison1 disseize1 outlaw1
 exile1 or otherwise punish a man1 or   
proceed against him1 or send any one    
against him1 by force or arms1 by a     
judgment of his peers2 but there is     
sense in saying that the king may       
imprison1 disseize1 and punish a man1 or
 proceed against him1 or send any one   
against him1 by force or arms1 according
 to a judgment1 or sentence1 of his     
peers2 because in that case the king    
would be merely carrying the sentence or
 judgment of the peers into execution4  
,the word per1 in the phrase per        
judicium parium suorum1 of course means 
precisely what it does in the next      
phrase1 per legem terr2 where it        
obviously means according to1 and not   
by1 as it is usually translated4 ,there 
would be no sense in saying that the    
king might proceed against a man by     

force or arms1 by the law of the land2  
but there is sense in saying that he may
 proceed against him1 by force or arms1 
according to the law of the land2       
because the king would then be acting   
only as an executive officer1 carrying  
the law of the land into execution4     
,indeed1 the true meaning of the word   
by1 as used in similar cases now1 always
 is according to2 as1 for example1 when 
we say a thing was done by the          
government1 or by the executive1 by law1
 we mean only that it was done by them  
according to law2 that is1 that they    
merely executed the law4  ,or1 if we say
 that the word by signifies by authority
 of1 the result will still be the same2 
for nothing can be done by authority of 
law1 except what the law itself         
authorizes or directs to be done2 that  
is1 nothing can be done by authority of 
law1 except simply to carry the law     
itself into execution4 ,so nothing could
 be done by authority of the sentence of
 the peers1 or by authority of the law  

of the land1 except what the sentence of
 the peers1 or the law of the land1     
themselves authorized or directed to be 
done2 nothing1 in short1 but to carry   
the sentence of the peers1 or the law of
 the land1 themselves into execution4   
,doing a thing by law1 or according to  
law1 is only carrying the law into      
execution4 ,and punishing a man by1 or  
according to1 the sentence or judgment  
of his peers1 is only carrying that     
sentence or judgment into execution4    
,if these reasons could leave any doubt 
that the word per is to be translated   
according to1 that doubt would be       
removed by the terms of an antecedent   
guaranty for the trial by jury1 granted 
by the ,emperor ,conrad1 of ,germany1#ba
 two hundred years before ,magna ,carta4
 ,blackstone cites it as follows3--7#c  
,blackstone1 #cej47  ,nemo beneficium   
suum perdat1 nisi secundum consuetudinem
 antecessorum nostrorum1 et judicium    
parium suorum4 ,that is1 ,no one shall  
lose his estate1#bb unless according to 

7secundum7 the custom 7or law7 of our   
ancestors1 and 7according to7 the       
sentence 7or judgment7 of his peers4    
,the evidence is therefore conclusive   
that the phrase per judicium parium     
suorum means according to the sentence  
of his peers2 thus implying that the    
jury1 and not the government1 are to fix
 the sentence4  ,if any additional proof
 were wanted that juries were to fix the
 sentence1 it would be found in the     
following provisions of ,magna ,carta1  
viz43     ,a freeman shall not be       
amerced for a small crime1 7delicto17   
but    according to the degree of the   
crime2 and for a great crime in         
proportion to the magnitude of it1      
saving to him his    contenement2#bc and
 after the same manner a merchant1      
saving to    him his merchandise4 ,and a
 villein shall be amerced after the same
    manner1 saving to him his           
waynage1#bd if he fall under our mercy2 
and none of the aforesaid amercements   
shall be imposed1 7or    assessed1      

ponatur17 but by the oath of honest men 
of the    neighborhood4 ,earls and      
,barons shall not be amerced but by     
their    peers1 and according to the    
degree of their crime4#be  ,pecuniary   
punishments were the most common        
punishments at that day1 and the        
foregoing provisions of ,magna ,carta   
show that the amount of those           
punishments was to be fixed by the jury4
  ,fines went to the king1 and were a   
source of revenue2 and if the amounts of
 the fines had been left to be fixed by 
the king1 he would have had a pecuniary 
temptation to impose unreasonable and   
oppressive ones4 ,so1 also1 in regard to
 other punishments than fines4 ,if it   
were left to the king to fix the        
punishment1 he might often have motives 
to inflict cruel and oppressive ones4   
,as it was the object of the trial by   
jury to protect the people against all  
possible oppression from the king1 it   
was necessary that the jury1 and not the
 king1 should fix the punishments4#bf   

,legale4  ,the word legale1 in the      
phrase per legale judicium parium       
suorum1 doubtless means two things4 #a4 
,that the sentence must be given in a   
legal manner2 that is1 by the legal     
number of jurors1 legally empanelled and
 sworn to try the cause2 and that they  
give their judgment or sentence after a 
legal trial1 both in form and substance1
 has been had4 #b4 ,that the sentence   
shall be for a legal cause or offence4  
,if1 therefore1 a jury should convict   
and sentence a man1 either without      
giving him a legal trial1 or for an act 
that was not really and legally         
criminal1 the sentence itself would not 
be legal2 and consequently this clause  
forbids the king to carry such a        
sentence into execution2 for the clause 
guarantees that he will execute no      
judgment or sentence1 except it be      
legale judicium1 a legal sentence4      
,whether a sentence be a legal one1     
would have to be ascertained by the king
 or his judges1 on appeal1 or might be  

judged of informally by the king        
himself4  ,the word legale clearly did  
not mean that the judicium parium suorum
 7judgment of his peers7 should be a    
sentence which any law 7of the king7    
should require the peers to pronounce2  
for in that case the sentence would not 
be the sentence of the peers1 but only  
the sentence of the law1 7that is1 of   
the king72 and the peers would be only a
 mouthpiece of the law1 7that is1 of the
 king17 in uttering it4     ,per legem  
terr4  ,one other phrase remains to be  
explained1 viz41 per legem terr1 by the 
law of the land4  ,all writers agree    
that this means the common law4 ,thus1  
,sir ,matthew ,hale says3     ,the      
common law is sometimes called1 by way  
of eminence1 lex terr1    as in the     
statute of ,magna ,carta1 chap4 #bi1    
where certainly the    common law is    
principally intended by those words1 aut
 per legem    terr2 as appears by the   
exposition thereof in several subsequent
    statutes2 and particularly in the   

statute of #bh ,edward ,,iii41 chap4 #c1
    which is but an exposition and      
explanation of that statute4 ,sometimes 
it is called lex ,angli1 as in the      
statute of ,merton1 cap4 #i1    ,nolumus
 leges ,angli mutari1 c41 7,we will that
 the laws of    ,england be not         
changed74 ,sometimes it is called lex et
 consuetudo    regni 7the law and custom
 of the kingdom72 as in all commissions 
of    oyer and terminer2 and in the     
statutes of #ah ,edward ,i41 cap4--1 and
    de quo warranto1 and divers others4 
,but most commonly it is called    the  
,common ,law1 or the ,common ,law of    
,england2 as in the statute    ,articuli
 super ,chartas1 cap4 #ae1 in the       
statute #be ,edward ,,iii41    cap4 #e1 
7#d17 and infinite more records and     
statutes4--#a ,hale's    ,history of the
 ,common ,law1 #abh4  ,this common law1 
or law of the land1 the king was sworn  
to maintain4 ,this fact is recognized by
 a statute made at ,westminster1 in     
#acdf1 by ,edward ,,iii41 which         

commences in this manner3     ,edward1  
by the ,grace of ,god1 c41 c41 to the   
,sheriff of ,stafford1    ,greeting3    
,because that by divers complaints made 
to us1 we have    perceived that the law
 of the land1 which we by oath are bound
 to    maintain1 c4--,st4 #bj ,edward   
,,iii4  ,the foregoing authorities are  
cited to show to the unprofessional     
reader1 what is well known to the       
profession1 that legem terr1 the law of 
the land1 mentioned in ,magna ,carta1   
was the common1 ancient1 fundamental law
 of the land1 which the kings were bound
 by oath to observe2 and that it did not
 include any statutes or laws enacted by
 the king himself1 the legislative power
 of the nation4  ,if the term legem terr
 had included laws enacted by the king  
himself1 the whole chapter of ,magna    
,carta1 now under discussion1 would have
 amounted to nothing as a protection to 
liberty2 because it would have imposed  
no restraint whatever upon the power of 
the king4 ,the king could make laws at  

any time1 and such ones as he pleased4  
,he could1 therefore1 have done anything
 he pleased1 by the law of the land1 as 
well as in any other way1 if his own    
laws had been the law of the land4 ,if  
his own laws had been the law of the    
land1 within the meaning of that term as
 used in ,magna ,carta1 this chapter of 
,magna ,carta would have been sheer     
nonsense1 inasmuch as the whole purport 
of it would have been simply that no man
 shall be arrested1 imprisoned1 or      
deprived of his freehold1 or his        
liberties1 or free customs1 or outlawed1
 or exiled1 or in any manner destroyed  
7by the king72 nor shall the king       
proceed against him1 nor send any one   
against him with force and arms1 unless 
by the judgment of his peers1 or unless 
the king shall please to do so4  ,this  
chapter of ,magna ,carta would1         
therefore1 have imposed not the         
slightest restraint upon the power of   
the king1 or afforded the slightest     
protection to the liberties of the      

people1 if the laws of the king had been
 embraced in the term legem terr4 ,but  
if legem terr was the common law1 which 
the king was sworn to maintain1 then a  
real restriction was laid upon his      
power1 and a real guaranty given to the 
people for their liberties4  ,such1     
then1 being the meaning of legem terr1  
the fact is established that ,magna     
,carta took an accused person entirely  
out of the hands of the legislative     
power1 that is1 of the king2 and placed 
him in the power and under the          
protection of his peers1 and the common 
law alone2 that1 in short1 ,magna ,carta
 suffered no man to be punished for     
violating any enactment of the          
legislative power1 unless the peers or  
equals of the accused freely consented  
to it1 or the common law authorized it2 
that the legislative power1 of itself1  
was wholly incompetent to require the   
conviction or punishment of a man for   
any offence whatever4  ,whether ,magna  
,carta allowed of any other trial than  

by jury4  ,the question here arises1    
whether legem terr did not allow of some
 other mode of trial than that by jury4 
,the answer is1 that1 at the time of    
,magna ,carta1 it is not probable1 7for 
the reasons given in the note17 that    
legem terr authorized1 in criminal      
cases1 any other trial than the trial by
 jury2 but1 if it did1 it certainly     
authorized none but the trial by battle1
 the trial by ordeal1 and the trial by  
compurgators4 ,these were the only modes
 of trial1 except by jury1 that had been
 known in ,england1 in criminal cases1  
for some centuries previous to ,magna   
,carta4 ,all of them had become nearly  
extinct at the time of ,magna ,carta1   
and it is not probable that they were   
included in legem terr as that term is  
used in that instrument4 ,but if they   
were included in it1 they have now been 
long obsolete1 and were such as neither 
this nor any future age will ever return
 to4#bg ,for all practical purposes of  
the present day1 therefore1 it may be   

asserted that ,magna ,carta allows no   
trial whatever but trial by jury4       
,whether ,magna ,carta allowed sentence 
to be fixed otherwise than by the jury4 
,still another question arises on the   
words legem terr1 viz41 whether1 in     
cases where the question of guilt was   
determined by the jury1 the amount of   
punishment may not have been fixed by   
legem terr1 the ,common ,law1 instead of
 its being fixed by the jury4  ,i think 
we have no evidence whatever that1 at   
the time of ,magna ,carta1 or indeed at 
any other time1 lex terr1 the common    
law1 fixed the punishment in cases where
 the question of guilt was tried by a   
jury2 or1 indeed1 that it did in any    
other case4 ,doubtless certain          
punishments were common and usual for   
certain offences2 but ,i do not think it
 can be shown that the common law1 the  
lex terr1 which the king was sworn to   
maintain1 required any one specific     
punishment1 or any precise amount of    
punishment1 for any one specific        

offence4 ,if such a thing be claimed1 it
 must be shown1 for it cannot be        
presumed4 ,in fact1 the contrary must be
 presumed1 because1 in the nature of    
things1 the amount of punishment proper 
to be inflicted in any particular case1 
is a matter requiring the exercise of   
discretion at the time1 in order to     
adapt it to the moral quality of the    
offence1 which is different in each     
case1 varying with the mental and moral 
constitutions of the offenders1 and the 
circumstances of temptation or          
provocation4 ,and ,magna ,carta         
recognizes this principle distinctly1 as
 has before been shown1 in providing    
that freemen1 merchants1 and villeins1  
shall not be amerced for a small crime1 
but according to the degree of the      
crime2 and for a great crime in         
proportion to the magnitude of it2 and  
that none of the aforesaid amercements  
shall be imposed 7or assessed7 but by   
the oaths of honest men of the          
neighborhood2 and that earls and barons 

shall not be amerced but by their peers1
 and according to the quality of the    
offence4  ,all this implies that the    
moral quality of the offence was to be  
judged of at the trial1 and that the    
punishment was to be fixed by the       
discretion of the peers1 or jury1 and   
not by any such unvarying rule as a     
common law rule would be4  ,i think1    
therefore1 it must be conceded that1 in 
all cases1 tried by a jury1 ,magna      
,carta intended that the punishment     
should be fixed by the jury1 and not by 
the common law1 for these several       
reasons4  #a4 ,it is uncertain whether  
the common law fixed the punishment of  
any offence whatever4  #b4 ,the words   
per judicium parium suorum1 according to
 the sentence of his peers1 imply that  
the jury fixed the sentence in some     
cases tried by them2 and if they fixed  
the sentence in some cases1 it must be  
presumed they did in all1 unless the    
contrary be clearly shown4  #c4 ,the    
express provisions of ,magna ,carta1    

before adverted to1 that no amercements1
 or fines1 should be imposed upon       
freemen1 merchants1 or villeins1 but by 
the oath of honest men of the           
neighborhood1 and according to the      
degree of the crime1 and that earls and 
barons should not be amerced but by     
their peers1 and according to the       
quality of the offence1 proves that1 at 
least1 there was no common law fixing   
the amount of fines1 or1 if there were1 
that it was to be no longer in force4   
,and if there was no common law fixing  
the amount of fines1 or if it was to be 
no longer in force1 it is reasonable to 
infer1 7in the absence of all evidence  
to the contrary17 either that the common
 law did not fix the amount of any other
 punishment1 or that it was to be no    
longer in force for that purpose4#bh    
,under the ,saxon laws1 fines1 payable  
to the injured party1 seem to have been 
the common punishments for all offences4
 ,even murder was punishable by a fine  
payable to the relatives of the         

deceased4 ,the murder of the king even  
was punishable by fine4 ,when a criminal
 was unable to pay his fine1 his        
relatives often paid it for him4 ,but if
 it were not paid1 he was put out of the
 protection of the law1 and the injured 
parties1 7or1 in the case of murder1 the
 kindred of the deceased17 were allowed 
to inflict such punishment as they      
pleased4 ,and if the relatives of the   
criminal protected him1 it was lawful to
 take vengeance on them also4           
,afterwards the custom grew up of       
exacting fines also to the king as a    
punishment for offences4#bi ,and this   
latter was1 doubtless1 the usual        
punishment at the time of ,magna ,carta1
 as is evidenced by the fact that for   
many years immediately following ,magna 
,carta1 nearly or quite all statutes    
that prescribed any punishment at all1  
prescribed that the offender should be  
grievously amerced1 or pay a great fine 
to the king1 or a grievous ransom1--with
 the alternative in some cases 7perhaps 

understood in all7 of imprisonment1     
banishment1 or outlawry1 in case of     
non-payment4#cj  ,judging1 therefore1   
from the special provisions in ,magna   
,carta1 requiring fines1 or amercements1
 to be imposed only by juries1 7without 
mentioning any other punishments27      
judging1 also1 from the statutes which  
immediately followed ,magna ,carta1 it  
is probable that the ,saxon custom of   
punishing all1 or nearly all1 offences  
by fines1 7with the alternative to the  
criminal of being imprisoned1 banished1 
or outlawed1 and exposed to private     
vengeance1 in case of non-payment17     
continued until the time of ,magna      
,carta2 and that in providing expressly 
that fines should be fixed by the       
juries1 ,magna ,carta provided for      
nearly or quite all the punishments that
 were expected to be inflicted2 that if 
there were to be any others1 they were  
to be fixed by the juries2 and          
consequently that nothing was left to be
 fixed by legem terr4  ,but whether the 

common law fixed the punishment of any  
offences1 or not1 is a matter of little 
or no practical importance at this day2 
because we have no idea of going back to
 any common law punishments of six      
hundred years ago1 if1 indeed1 there    
were any such at that time4 ,it is      
enough for us to know--and this is what 
it is material for us to know--that the 
jury fixed the punishments1 in all      
cases1 unless they were fixed by the    
common law2 that ,magna ,carta allowed  
no punishments to be prescribed by      
statute--that is1 by the legislative    
power--nor in any other manner by the   
king1 or his judges1 in any case        
whatever2 and1 consequently1 that all   
statutes prescribing particular         
punishments for particular offences1 or 
giving the king's judges any authority  
to fix punishments1 were void4  ,if the 
power to fix punishments had been left  
in the hands of the king1 it would have 
given him a power of oppression1 which  
was liable to be greatly abused2 which  

there was no occasion to leave with him2
 and which would have been incongruous  
with the whole object of this chapter of
 ,magna ,carta2 which object was to take
 all discretionary or arbitrary power   
over individuals entirely out of the    
hands of the king1 and his laws1 and    
entrust it only to the common law1 and  
the peers1 or jury--that is1 the people4
  ,what lex terr did authorize4  ,but   
here the question arises1 ,what then did
 legem terr authorize the king1 7that   
is1 the government17 to do in the case  
of an accused person1 if it neither     
authorized any other trial than that by 
jury1 nor any other punishments than    
those fixed by juries8  ,the answer is1 
that1 owing to the darkness of history  
on the point1 it is probably wholly     
impossible1 at this day1 to state1 with 
any certainty or precision1 anything    
whatever that the legem terr of ,magna  
,carta did authorize the king1 7that is1
 the government17 to do1 7if1 indeed1 it
 authorized him to do anything17 in the 

case of criminals1 other than to have   
them tried and sentenced by their peers1
 for common law crimes2 and to carry    
that sentence into execution4  ,the     
trial by jury was a part of legem terr1 
and we have the means of knowing what   
the trial by jury was4 ,the fact that   
the jury were to fix the sentence1      
implies that they were to try the       
accused2 otherwise they could not know  
what sentence1 or whether any sentence1 
ought to be inflicted upon him4 ,hence  
it follows that the jury were to judge  
of everything involved in the trial2    
that is1 they were to judge of the      
nature of the offence1 of the           
admissibility and weight of testimony1  
and of everything else whatsoever that  
was of the essence of the trial4 ,if    
anything whatever could be dictated to  
them1 either of law or evidence1 the    
sentence would not be theirs1 but would 
be dictated to them by the power that   
dictated to them the law or evidence4   
,the trial and sentence1 then1 were     

wholly in the hands of the jury4  ,we   
also have sufficient evidence of the    
nature of the oath administered to      
jurors in criminal cases4 ,it was       
simply1 that they would neither convict 
the innocent1 nor acquit the guilty4    
,this was the oath in the ,saxon times1 
and probably continued to be until      
,magna ,carta4  ,we also know that1 in  
case of conviction1 the sentence of the 
jury was not necessarily final2 that the
 accused had the right of appeal to the 
king and his judges1 and to demand      
either a new trial1 or an acquittal1 if 
the trial or conviction had been against
 law4  ,so much1 therefore1 of the legem
 terr of ,magna ,carta1 we know with    
reasonable certainty4  ,we also know    
that ,magna ,carta provides that ,no    
bailiff 7balivus7 shall hereafter put   
any man to his law1 7put him on trial17 
on his single testimony1 without        
credible witnesses brought to support   
it4 ,coke thinks that under this word   
balivus1 in this act1 is comprehended   

every justice1 minister of the king1    
steward of the king1 steward and        
bailiff4 7#b ,inst4 #dd47 ,and in       
support of this idea he quotes from a   
very ancient law book1 called the       
,mirror of ,justices1 written in the    
time of ,edward ,i41 within a century   
after ,magna ,carta4 ,but whether this  
were really a common law principle1 or  
whether the provision grew out of that  
jealousy of the government which1 at the
 time of ,magna ,carta1 had reached its 
height1 cannot perhaps now be           
determined4  ,we also know that1 by     
,magna ,carta1 amercements1 or fines1   
could not be imposed to the ruin of the 
criminal2 that1 in the case of a        
freeman1 his contenement1 or means of   
subsisting in the condition of a        
freeman1 must be saved to him2 that1 in 
the case of a merchant1 his merchandise 
must be spared2 and in the case of a    
villein1 his waynage1 or plough-tackle  
and carts4 ,this also is likely to have 
been a principle of the common law1     

inasmuch as1 in that rude age1 when the 
means of getting employment as laborers 
were not what they are now1 the man and 
his family would probably have been     
liable to starvation1 if these means of 
subsistence had been taken from him4    
,we also know1 generally1 that1 at the  
time of ,magna ,carta1 all acts         
intrinsically criminal1 all trespasses  
against persons and property1 were      
crimes1 according to lex terr1 or the   
common law4  ,beyond the points now     
given1 we hardly know anything1 probably
 nothing with certainty1 as to what the 
legem terr of ,magna ,carta did         
authorize1 in regard to crimes4 ,there  
is hardly anything extant that can give 
us any real light on the subject4  ,it  
would seem1 however1 that there were1   
even at that day1 some common law       
principles governing arrests2 and some  
common law forms and rules as to holding
 a man for trial1 7by bail or           
imprisonment27 putting him on trial1    
such as by indictment or complaint2     

summoning and empanelling jurors1 c41 c4
 ,whatever these common law principles  
were1 ,magna ,carta requires them to be 
observed2 for ,magna ,carta provides for
 the whole proceedings1 commencing with 
the arrest1 7no freeman shall be        
arrested1 c417 and ending with the      
execution of the sentence4 ,and it      
provides that nothing shall be done1 by 
the government1 from beginning to end1  
unless according to the sentence of the 
peers1 or legem terr1 the common law4   
,the trial by peers was a part of legem 
terr1 and we have seen that the peers   
must necessarily have governed the whole
 proceedings at the trial4 ,but all the 
proceedings for arresting the man1 and  
bringing him to trial1 must have been   
had before the case could come under the
 cognizance of the peers1 and they must1
 therefore1 have been governed by other 
rules than the discretion of the peers4 
,we may conjecture1 although we cannot  
perhaps know with much certainty1 that  
the lex terr1 or common law1 governing  

these other proceedings1 was somewhat   
similar to the common law principles1 on
 the same points1 at the present day4   
,such seem to be the opinions of ,coke1 
who says that the phrase nisi per legem 
terr means unless by due process of law4
  ,thus1 he says3  ,nisi per legem terr4
 ,but by the law of the land4 ,for the  
true sense and exposition of these      
words1 see the statute of #cg ,edw4     
,,iii41 cap4 #h1 where the words1 by the
 law of the land1 are rendered without  
due process of law2 for there it is     
said1 though it be contained in the     
,great ,charter1 that no man be taken1  
imprisoned1 or put out of his freehold1 
without process of the law2 that is1 by 
indictment or presentment of good and   
lawful men1 where such deeds be done in 
due manner1 or by writ original of the  
common law4  ,without being brought in  
to answer but by due process of the     
common law4  ,no man be put to answer   
without presentment before justices1 or 
thing of record1 or by due process1 or  

by writ original1 according to the old  
law of the land4--#b ,inst4 #ej4  ,the  
foregoing interpretations of the words  
nisi per legem terr are corroborated by 
the following statutes1 enacted in the  
next century after ,magna ,carta4  ,that
 no man1 from henceforth1 shall be      
attached by any accusation1 nor         
forejudged of life or limb1 nor his     
land1 tenements1 goods1 nor chattels1   
seized into the king's hands1 against   
the form of the ,great ,charter1 and the
 law of the land4--,st4 #e ,edward      
,,iii41 ,ch4 #i4 7#acca47  ,whereas it  
is contained in the ,great ,charter of  
the franchises of ,england1 that none   
shall be imprisoned1 nor put out of his 
freehold1 nor of his franchises1 nor    
free customs1 unless it be by the law of
 the land2 it is accorded1 assented1 and
 established1 that from henceforth none 
shall be taken by petition1 or          
suggestion made to our lord the king1 or
 to his council1 unless it be by        
indictment or presentment of good and   

lawful people of the same neighborhood  
where such deeds be done in due manner1 
or by process made by writ original at  
the common law2 nor that none be put out
 of his franchises1 nor of his freehold1
 unless he be duly brought into answer1 
and forejudged of the same by the course
 of the law2 and if anything be done    
against the same1 it shall be redressed 
and holden for none4--,st4 #be ,edward  
,,iii41 ,ch4 #d4 7#acej47  ,that no man1
 of what estate or condition that he be1
 shall be put out of land or tenement1  
nor taken1 nor imprisoned1 nor          
disinherited1 nor put to death1 without 
being brought in answer by due process  
of law4--,st4 #bh ,edward ,,iii41 ,ch4  
#c4 7#aced47  ,that no man be put to    
answer without presentment before       
justices1 or matter of record1 or by due
 process and writ original1 according to
 the old law of the land4 ,and if       
anything from henceforth be done to the 
contrary1 it shall be void in law1 and  
holden for error4--,st4 #db ,edward     

,,iii41 ,ch4 #c4 7#acfh47  ,the         
foregoing interpretation of the words   
nisi per legem terr--that is1 by due    
process of law--including indictment1   
c41 has been adopted as the true one by 
modern writers and courts2 as1 for      
example1 by ,kent1 7#b ,comm4 #ac17     
,story1 7#c ,comm4 #ffa17 and the       
,supreme ,court of ,new ,york1 7#ai     
,wendell1 #fgf2 #d ,hill1 #adf47  ,the  
fifth amendment to the constitution of  
the ,united ,states seems to have been  
framed on the same idea1 inasmuch as it 
provides that no person shall be        
deprived of life1 liberty1 or property1 
without due process of law4#ca  ,whether
 the word ,,vel should be rendered by   
,,or1 or by ,,and4  ,having thus given  
the meanings1 or rather the             
applications1 which the words vel per   
legem terr will reasonably1 and perhaps 
must necessarily1 bear1 it is proper to 
suggest1 that it has been supposed by   
some that the word vel1 instead of being
 rendered by or1 as it usually is1 ought

 to be rendered by and1 inasmuch as the 
word vel is often used for et1 and the  
whole phrase nisi per judicium parium   
suorum1 vel per legem terr1 7which would
 then read1 unless by the sentence of   
his peers1 and the law of the land17    
would convey a more intelligible and    
harmonious meaning than it otherwise    
does4  ,blackstone suggests that this   
may be the true reading4 7,charters1 p4 
#da47 ,also ,mr4 ,hallam1 who says3     
,nisi per legale judicium parium suorum1
 vel per legem terr4    ,several        
explanations have been offered of the   
alternative clause2    which some have  
referred to judgment by default1 or     
demurrer2 others    to the process of   
attachment for contempt4 ,certainly     
there are many    legal procedures      
besides trial by jury1 through which a  
party's goods    or person may be taken4
 ,but one may doubt whether these were  
in    contemplation of the framers of   
,magna ,carta4 ,in an entry of the      
,charter of #abag by a contemporary     

hand1 preserved in the ,town-clerk's    
office in ,london1 called ,liber        
,custumarum et ,regum antiquarum1 a     
various reading1 et per legem terr1     
occurs4 ,blackstone's    ,charters1 p4  
#db 7#da47 ,and the word vel is so      
frequently used for    et1 that ,i am   
not wholly free from a suspicion that it
 was so    intended in this place4 ,the 
meaning will be1 that no person shall be
    disseized1 c41 except upon a lawful 
cause of action1 found by the    verdict
 of a jury4 ,this really seems as good  
as any of the    disjunctive            
interpretations2 but ,i do not offer it 
with much    confidence4--#b ,hallam's  
,middle ,ages1 ,ch4 #h1 ,part #b1 p4    
#ddi1    note4#cb  ,the idea that the   
word vel should be rendered by and1 is  
corroborated1 if not absolutely         
confirmed1 by the following passage in  
,blackstone1 which has before been      
cited4 ,speaking of the trial by jury1  
as established by ,magna ,carta1 he     
calls it1     ,a privilege which is     

couched in almost the same words with   
that of    the ,emperor ,conrad two     
hundred years before3 'nemo beneficium  
suum    perdat1 nisi secundum           
consuetudinem antecessorum nostrorum1 et
    judicium parium suorum4' 7,no one   
shall lose his estate unless            
according to the custom of our          
ancestors1 and the judgment of his      
peers47--#c ,blackstone1 #cej4  ,if the 
word vel be rendered by and1 7as ,i     
think it must be1 at least in some      
cases17 this chapter of ,magna ,carta   
will then read that no freeman shall be 
arrested or punished1 unless according  
to the sentence of his peers1 and the   
law of the land4  ,the difference       
between this reading and the other is   
important4 ,in the one case1 there would
 be1 at first view1 some color of ground
 for saying that a man might be punished
 in either of two ways1 viz41 according 
to the sentence of his peers1 or        
according to the law of the land4 ,in   
the other case1 it requires both the    

sentence of his peers and the law of the
 land 7common law7 to authorize his     
punishment4  ,if this latter reading be 
adopted1 the provision would seem to    
exclude all trials except trial by jury1
 and all causes of action except those  
of the common law4  ,but ,i apprehend   
the word vel must be rendered both by   
and1 and by or2 that in cases of a      
judgment1 it should be rendered by and1 
so as to require the concurrence both of
 the judgment of the peers and the law  
of the land1 to authorize the king to   
make execution upon a party's goods or  
person2 but that in cases of arrest and 
imprisonment1 simply for the purpose of 
bringing a man to trial1 vel should be  
rendered by or1 because there can have  
been no judgment of a jury in such a    
case1 and the law of the land must      
therefore necessarily be the only guide 
to1 and restraint upon1 the king4 ,if   
this guide and restraint were taken     
away1 the king would be invested with an
 arbitrary and most dangerous power in  

making arrests1 and confining in prison1
 under pretence of an intention to bring
 to trial4  ,having thus examined the   
language of this chapter of ,magna      
,carta1 so far as it relates to criminal
 cases1 its legal import may be stated  
as follows1 viz43  ,no freeman shall be 
arrested1 or imprisoned1 or deprived of 
his freehold1 or his liberties1 or free 
customs1 or be outlawed1 or exiled1 or  
in any manner destroyed1 7harmed17 nor  
will we 7the king7 proceed against him1 
nor send any one against him1 by force  
or arms1 unless according to 7that is1  
in execution of7 the sentence of his    
peers1 and 7or or1 as the case may      
require7 the ,common ,law of ,england1  
7as it was at the time of ,magna ,carta1
 in #abae47  ,footnote #e3 #a ,hume1    
,appendix #b4  ,footnote #f3 ,crabbe's  
,history of the ,english ,law1 #bcf4    
,footnote #g3 ,coke says1 ,the king of  
,england is armed with divers councils1 
one whereof is called commune concilium1
 7the common council17 and that is the  

court of parliament1 and so it is       
legally called in writs and judicial    
proceedings commune concilium regni     
,angli1 7the common council of the      
kingdom of ,england47 ,and another is   
called magnum concilium1 7great         
council27 this is sometimes applied to  
the upper house of parliament1 and      
sometimes1 out of parliament time1 to   
the peers of the realm1 lords of        
parliament1 who are called magnum       
concilium regis1 7the great council of  
the king27 99 99 ,thirdly1 7as every man
 knoweth17 the king hath a privy council
 for matters of state4 99 99 ,the fourth
 council of the king are his judges for 
law matters4  #a ,coke's ,institutes1   
#aaj a4  ,footnote #h3 ,the ,great      
,charter of ,henry ,,iii41 7#abaf and   
#abbe17 confirmed by ,edward ,i41       
7#abig17 makes no provision whatever    
for1 or mention of1 a parliament1 unless
 the provision1 7,ch4 #cg17 that        
,escuage1 7a military contribution17    
from henceforth shall be taken like as  

it was wont to be in the time of ,king  
,henry our grandfather1 mean that a     
parliament shall be summoned for that   
purpose4  ,footnote #i3 ,the ,magna     
,carta of ,john1 7,ch4 #ag and #ah17    
defines those who were entitled to be   
summoned to parliament1 to wit1 ,the    
,archbishops1 ,bishops1 ,abbots1 ,earls1
 and ,great ,barons of the ,realm1 99 99
 and all others who hold of us in chief4
 ,those who held land of the king in    
chief included none below the rank of   
knights4  ,footnote #aj3 ,the           
parliaments of that time were1          
doubtless1 such as ,carlyle describes   
them1 when he says1 ,the parliament was 
at first a most simple assemblage1 quite
 cognate to the situation2 that ,red    
,william1 or whoever had taken on him   
the terrible task of being ,king of     
,england1 was wont to invite1 oftenest  
about ,christmas time1 his subordinate  
,kinglets1 ,barons as he called them1 to
 give him the pleasure of their company 
for a week or two2 there1 in earnest    

conference all morning1 in freer talk   
over ,christmas cheer all evening1 in   
some big royal hall of ,westminster1    
,winchester1 or wherever it might be1   
with log fires1 huge rounds of roast and
 boiled1 not lacking malmsey and other  
generous liquor1 they took counsel      
concerning the arduous matters of the   
kingdom4  ,footnote #aa3 ,hume1         
,appendix #b4  ,footnote #ab3 ,this     
point will be more fully established    
hereafter4  ,footnote #ac3 ,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      
juries4 ,when the schedule of liberties 
demanded by the barons was shown to him1
 7of which the trial by jury was the    
most important1 because it was the only 
one that protected all the rest17 the   
king1 falling into a violent passion1   
asked1 ,why the barons did not with     
these exactions demand his kingdom8 99  
99 and with a solemn oath protested1    

that he would never grant such liberties
 as would make himself a slave4 99 99   
,but afterwards1 seeing himself         
deserted1 and fearing they would seize  
his castles1 he sent the ,earl of       
,pembroke and other faithful messengers 
to them1 to let them know he would grant
 them the laws and liberties they       
desired4 99 99 ,but after the charter   
had been granted1 the king's mercenary  
soldiers1 desiring war more than peace1 
were by their leaders continually       
whispering in his ears1 that he was now 
no longer king1 but the scorn of other  
princes2 and that it was more eligible  
to be no king1 than such a one as he4 99
 99 ,he applied to the ,pope1 that he   
might by his apostolic authority make   
void what the barons had done4 99 99 ,at
 ,rome he met with what success he could
 desire1 where all the transactions with
 the barons were fully represented to   
the ,pope1 and the ,charter of          
,liberties shown to him1 in writing2    
which1 when he had carefully perused1   

he1 with a furious look1 cried out1     
,what6 ,do the barons of ,england       
endeavor to dethrone a king1 who has    
taken upon him the ,holy ,cross1 and is 
under the protection of the ,apostolic  
,see2 and would they force him to       
transfer the dominions of the ,roman    
,church to others8 ,by ,st4 ,peter1 this
 injury must not pass unpunished4 ,then 
debating the matter with the cardinals1 
he1 by a definitive sentence1 damned and
 cassated forever the ,charter of       
,liberties1 and sent the king a bull    
containing that sentence at             
large4--,echard's ,history of ,england1 
p4 #ajf-g4  ,these things show that the 
nature and effect of the charter were   
well understood by the king and his     
friends2 that they all agreed that he   
was effectually stripped of power4 ,yet 
the legislative power had not been taken
 from him2 but only the power to enforce
 his laws1 unless juries should freely  
consent to their enforcement4  ,footnote
 #ad3 ,the laws were1 at that time1 all 

written in ,latin4  ,footnote #ae3 ,no  
man shall be condemned at the king's    
suit1 either before the king in his     
bench1 where pleas are coram rege1      
7before the king17 7and so are the words
 nec super eum ibimus1 to be            
understood17 nor before any other       
commissioner or judge whatsoever1 and so
 are the words nec super eum mittemus1  
to be understood1 but by the judgment of
 his peers1 that is1 equals1 or         
according to the law of the land4--#b   
,coke's ,inst41 #df4  ,footnote #af3    
,perhaps the assertion in the text      
should be made with this                
qualification--that the words per legem 
terr1 7according to the law of the      
land17 and the words per legale judicium
 parium suorum1 7according to the legal 
judgment of his peers17 imply that the  
king1 before proceeding to any executive
 action1 will take notice of the law of 
the land1 and of the legality of the    
judgment of the peers1 and will execute 
upon the prisoner nothing except what   

the law of the land authorizes1 and no  
judgments of the peers1 except legal    
ones4 ,with this qualification1 the     
assertion in the text is strictly       
correct--that there is nothing in the   
whole chapter that grants to the king1  
or his judges1 any judicial power at    
all4 ,the chapter only describes and    
limits his executive power4  ,footnote  
#ag3 ,see ,blackstone's ,law ,tracts1   
page #bid1 ,oxford ,edition4  ,footnote 
#ah3 ,these ,articles of the ,charter   
are given in ,blackstone's collection of
 ,charters1 and are also printed with   
the ,statutes of the ,realm4 ,also in   
,wilkins' ,laws of the ,anglo-,saxons1  
p4 #cef4  ,footnote #ai3 ,lingard says1 
,the words1 ',we will not destroy him1  
nor will we go upon him1 nor will we    
send upon him1' have been very          
differently expounded by different legal
 authorities4 ,their real meaning may be
 learned from ,john himself1 who the    
next year promised by his letters patent
 444 nec super eos per vim vel per arma 

ibimus1 nisi per legem regni nostri1 vel
 per judicium parium suorum in curia    
nostra1 7nor will we go upon them by    
force or by arms1 unless by the law of  
our kingdom1 or the judgment of their   
peers in our court47 ,pat4 #af ,johan1  
apud ,drad4 #aa1 app4 no4 #abd4 ,he had 
hitherto been in the habit of going with
 an armed force1 or sending an armed    
force on the lands1 and against the     
castles1 of all whom he knew or         
suspected to be his secret enemies1     
without observing any form of law4--#c  
,lingard1 #dg note4  ,footnote #bj3     
,judgment1 judicium4 99 99 ,the sentence
 of the law1 pronounced by the court1   
upon the matter contained in the        
record4--#c ,blackstone1 #cie4 ,jacob's 
,law ,dictionary4 ,tomlin's do4         
,judgment is the decision or sentence of
 the law1 given by a court of justice or
 other competent tribunal1 as the result
 of the proceedings instituted therein1 
for the redress of an                   
injury4--,bouvier's ,law ,dict4         

,judgment1 judicium4 99 99 ,sentence of 
a judge against a criminal4 99 99       
,determination1 decision in             
general4--,bailey's ,dict4  ,judgment4  
99 99 ,in a legal sense1 a sentence or  
decision pronounced by authority of a   
king1 or other power1 either by their   
own mouth1 or by that of their judges   
and officers1 whom they appoint to      
administer justice in their             
stead4--,chambers' ,dict4  ,judgment4 99
 99 ,in law1 the sentence or doom       
pronounced in any case1 civil or        
criminal1 by the judge or court by which
 it is tried4--,webster's ,dict4        
,sometimes the punishment itself is     
called judicium1 judgment2 or1 rather1  
it was at the time of ,magna ,carta4    
,for example1 in a statute passed       
fifty-one years after ,magna ,carta1 it 
was said that a baker1 for default in   
the weight of his bread1 debeat         
amerciari vel subire judicium pillorie2 
that is1 ought to be amerced1 or suffer 
the punishment1 or judgment1 of the     

pillory4 ,also that a brewer1 for       
selling ale contrary to the assize1     
debeat amerciari1 vel pati judicium     
tumbrelli2 that is1 ought to be amerced1
 or suffer the punishment1 or judgment1 
of the tumbrel4--#ea ,henry #c1 ,st4 #f4
 7#abff47  ,also the ,statutes of       
uncertain date1 7but supposed to be     
prior to ,edward ,,iii41 or #acbf17     
provide1 in chapters #f1 #g1 and #aj1   
for judgment of the pillory4--,see #a   
,ruffhead's ,statutes1 #ahg1 #ahh4 #a   
,statutes of the ,realm1 #bjc4          
,blackstone1 in his chapter ,of         
,judgment1 and its ,consequences1 says1 
,judgment 7unless any matter be offered 
in arrest thereof7 follows upon         
conviction2 being the pronouncing of    
that punishment which is expressly      
ordained by law4--,blackstone's         
,analysis of the ,laws of ,england1     
,book #d1 ,ch4 #bi1 ,sec4 #a4           
,blackstone's ,law ,tracts1 #abf4  ,coke
 says1 ,judicium 444 the judgment is the
 guide and direction of the execution4  

#c ,inst4 #baj4  ,footnote #ba3 ,this   
precedent from ,germany is good         
authority1 because the trial by jury was
 in use1 in the northern nations of     
,europe generally1 long before ,magna   
,carta1 and probably from time          
immemorial2 and the ,saxons and ,normans
 were familiar with it before they      
settled in ,england4  ,footnote #bb3    
,beneficium was the legal name of an    
estate held by a feudal tenure4 ,see    
,spelman's ,glossary4  ,footnote #bc3   
,contenement of a freeman was the means 
of living in the condition of a freeman4
  ,footnote #bd3 ,waynage was a         
villein's plough-tackle and carts4      
,footnote #be3 ,tomlin says1 ,the       
ancient practice was1 when any such fine
 was imposed1 to inquire by a jury      
quantum inde regi dare valeat per annum1
 salva sustentatione sua et uxoris et   
liberorum suorum1 7how much is he able  
to give to the king per annum1 saving   
his own maintenance1 and that of his    
wife and children74 ,and since the      

disuse of such inquest1 it is never     
usual to assess a larger fine than a man
 is able to pay1 without touching the   
implements of his livelihood2 but to    
inflict corporal punishment1 or a       
limited imprisonment1 instead of such a 
fine as might amount to imprisonment for
 life4 ,and this is the reason why fines
 in the king's courts are frequently    
denominated ransoms1 because the penalty
 must otherwise fall upon a man's       
person1 unless it be redeemed or        
ransomed by a pecuniary fine4--,tomlin's
 ,law ,dict41 word ,fine4  ,footnote    
#bf3 ,because juries were to fix the    
sentence1 it must not be supposed that  
the king was obliged to carry the       
sentence into execution2 but only that  
he could not go beyond the sentence4 ,he
 might pardon1 or he might acquit on    
grounds of law1 notwithstanding the     
sentence2 but he could not punish beyond
 the extent of the sentence4 ,magna     
,carta does not prescribe that the king 
shall punish according to the sentence  

of the peers2 but only that he shall not
 punish unless according to that        
sentence4 ,he may acquit or pardon1     
notwithstanding their sentence or       
judgment2 but he cannot punish1 except  
according to their judgment4  ,footnote 
#bg3 ,the trial by battle was one in    
which the accused challenged his accuser
 to single combat1 and staked the       
question of his guilt or innocence on   
the result of the duel4 ,this trial was 
introduced into ,england by the         
,normans1 within one hundred and fifty  
years before ,magna ,carta4 ,it was not 
very often resorted to even by the      
,normans themselves2 probably never by  
the ,anglo-,saxons1 unless in their     
controversies with the ,normans4 ,it was
 strongly discouraged by some of the    
,norman princes1 particularly by ,henry 
,,ii41 by whom the trial by jury was    
especially favored4 ,it is probable that
 the trial by battle1 so far as it      
prevailed at all in ,england1 was rather
 tolerated as a matter of chivalry1 than

 authorized as a matter of law4 ,at any 
rate1 it is not likely that it was      
included in the legem terr of ,magna    
,carta1 although such duels have        
occasionally occurred since that time1  
and have1 by some1 been supposed to be  
lawful4 ,i apprehend that nothing can be
 properly said to be a part of lex terr1
 unless it can be shown either to have  
been of ,saxon origin1 or to have been  
recognized by ,magna ,carta4  ,the trial
 by ordeal was of various kinds4 ,in one
 ordeal the accused was required to take
 hot iron in his hand2 in another to    
walk blindfold among red-hot            
ploughshares2 in another to thrust his  
arm into boiling water2 in another to be
 thrown1 with his hands and feet bound1 
into cold water2 in another to swallow  
the morsel of execration2 in the        
confidence that his guilt or innocence  
would be miraculously made known4 ,this 
mode of trial was nearly extinct at the 
time of ,magna ,carta1 and it is not    
likely that it was included in legem    

terr1 as that term is used in that      
instrument4 ,this idea is corroborated  
by the fact that the trial by ordeal was
 specially prohibited only four years   
after ,magna ,carta1 by act of          
,parliament in #c ,henry ,,iii41        
according to ,sir ,edward ,coke1 or     
rather by an order of the king in       
council4--#c ,blackstone #cde1 note4  ,i
 apprehend that this trial was never    
forced upon accused persons1 but was    
only allowed to them1 as an appeal to   
,god1 from the judgment of a jury4#cc   
,the trial by compurgators was one in   
which1 if the accused could bring twelve
 of his neighbors1 who would make oath  
that they believed him innocent1 he was 
held to be so4 ,it is probable that this
 trial was really the trial by jury1 or 
was allowed as an appeal from a jury4   
,it is wholly improbable that two       
different modes of trial1 so nearly     
resembling each other as this and the   
trial by jury do1 should prevail at the 
same time1 and among a rude people1     

whose judicial proceedings would        
naturally be of the simplest kind4 ,but 
if this trial really were any other than
 the trial by jury1 it must have been   
nearly or quite extinct at the time of  
,magna ,carta2 and there is no          
probability that it was included in     
legem terr4  ,footnote #bh3 ,coke       
attempts to show that there is a        
distinction between amercements and     
fines--admitting that amercements must  
be fixed by one's peers1 but claiming   
that fines may be fixed by the          
government4 7#b ,inst4 #bg1 #h ,coke's  
,reports #ch47 ,but there seems to have 
been no ground whatever for supposing   
that any such distinction existed at the
 time of ,magna ,carta4 ,if there were  
any such distinction in the time of     
,coke1 it had doubtless grown up within 
the four centuries that had elapsed     
since ,magna ,carta1 and is to be set   
down as one of the numberless inventions
 of government for getting rid of the   
restraints of ,magna ,carta1 and for    

taking men out of the protection of     
their peers1 and subjecting them to such
 punishments as the government chooses  
to inflict4  ,the first statute of      
,westminster1 passed sixty years after  
,magna ,carta1 treats the fine and      
amercement as synonymous1 as follows3   
,forasmuch as the common fine and       
amercement of the whole county in ,eyre 
of the justices for false judgments1 or 
for other trespass1 is unjustly assessed
 by sheriffs and baretors in the shires1
 99 99 it is provided1 and the king     
wills1 that from henceforth such sums   
shall be assessed before the justices in
 ,eyre1 afore their departure1 by the   
oath of knights and other honest men1   
c4--#c ,edward ,i41 ,ch4 #ah4 7#abge47  
,and in many other statutes passed after
 ,magna ,carta1 the terms fine and      
amercement seem to be used              
indifferently1 in prescribing the       
punishment for offences4 ,as late as    
#adfa1 7#bdf years after ,magna ,carta17
 the statute #a ,edward ,,iv41 ,ch4 #b1 

speaks of fines1 ransoms1 and           
amerciaments as being levied upon       
criminals1 as if they were the common   
punishments of offences4  ,st4 #b and #c
 ,philip and ,mary1 ,ch4 #h1 uses the   
terms1 fines1 forfeitures1 and          
amerciaments five times4 7#aeee47  ,st4 
#e ,elizabeth1 ,ch4 #ac1 ,sec4 #aj1 uses
 the terms fines1 forfeitures1 and      
amerciaments4  ,that amercements were   
fines1 or pecuniary punishments1        
inflicted for offences1 is proved by the
 following statutes1 7all supposed to   
have been passed within one hundred and 
fifteen years after ,magna ,carta17     
which speak of amercements as a species 
of judgment1 or punishment1 and as being
 inflicted for the same offences as     
other judgments4  ,thus one statute     
declares that a baker1 for default in   
the weight of his bread1 ought to be    
amerced1 or suffer the judgment of the  
pillory2 and that a brewer1 for selling 
ale contrary to the assize1 ought to be 
amerced1 or suffer the judgment of the  

tumbrel4--#ea ,henry ,,iii41 ,st4 #f4   
7#abff47  ,among the ,statutes of       
,uncertain ,date1 but supposed to be    
prior to ,edward ,,iii41 7#acbf17 are   
the following3  ,chap4 #f provides that 
if a brewer break the assize1 7fixing   
the price of ale17 the first1 second1   
and third time1 he shall be amerced2 but
 the fourth time he shall suffer        
judgment of the pillory without         
redemption4  ,chap4 #g provides that a  
butcher that selleth swine's flesh      
measled1 or flesh dead of the murrain1  
or that buyeth flesh of ,jews1 and      
selleth the same unto ,christians1 after
 he shall be convict thereof1 for the   
first time he shall be grievously       
amerced2 the second time he shall suffer
 judgment of the pillory2 and the third 
time he shall be imprisoned and make    
fine2 and the fourth time he shall      
forswear the town4  ,chap4 #aj1 a       
statute against forestalling1 provides  
that1  ,he that is convict thereof1 the 
first time shall be amerced1 and shall  

lose the thing so bought1 and that      
according to the custom of the town2 he 
that is convicted the second time shall 
have judgment of the pillory2 at the    
third time he shall be imprisoned and   
make fine2 the fourth time he shall     
abjure the town4 ,and this judgment     
shall be given upon all manner of       
forestallers1 and likewise upon them    
that have given them counsel1 help1 or  
favor4--#a ,ruffhead's ,statutes1 #ahg1 
#ahh4 #a ,statutes of the ,realm1 #bjc4 
,footnote #bi3 #a ,hume1 ,appendix1 #a4 
,footnote #cj3 ,blackstone says1 ,our   
ancient ,saxon laws nominally punished  
theft with death1 if above the value of 
twelve pence2 but the criminal was      
permitted to redeem his life by a       
pecuniary ransom1 as among their        
ancestors1 the ,germans1 by a stated    
number of cattle4 ,but in the ninth year
 of ,henry the ,first1 7#aaji17 this    
power of redemption was taken away1 and 
all persons guilty of larceny above the 
value of twelve pence were directed to  

be hanged1 which law continues in force 
to this day4--#d ,blackstone1 #bch4  ,i 
give this statement of ,blackstone1     
because the latter clause may seem to   
militate with the idea1 which the former
 clause corroborates1 viz41 that at the 
time of ,magna ,carta1 fines were the   
usual punishments of offences4 ,but ,i  
think there is no probability that a law
 so unreasonable in itself1             
7unreasonable even after making all     
allowance for the difference in the     
value of money17 and so contrary to     
immemorial custom1 could or did obtain  
any general or speedy acquiescence among
 a people who cared little for the      
authority of kings4  ,maddox1 writing of
 the period from ,william the ,conqueror
 to ,john1 says3  ,the amercements in   
criminal and common pleas1 which were   
wont to be imposed during this first    
period and afterwards1 were of so many  
several sorts1 that it is not easy to   
place them under distinct heads4 ,let   
them1 for method's sake1 be reduced to  

the heads following3 ,amercements for or
 by reason of murders and manslaughters1
 for misdemeanors1 for disseisins1 for  
recreancy1 for breach of assize1 for    
defaults1 for non-appearance1 for false 
judgment1 and for not making suit1 or   
hue and cry4 ,to them may be added      
miscellaneous amercements1 for          
trespasses of divers kinds4--#a ,maddox'
 ,history of the ,exchequer1 #edb4      
,footnote #ca3 ,coke1 in his exposition 
of the words legem terr1 gives quite in 
detail the principles of the common law 
governing arrests2 and takes it for     
granted that the words nisi per legem   
terr are applicable to arrests1 as well 
as to the indictment1 c4--#b ,inst41    
#ea1eb4  ,footnote #cb3 ,i cite the     
above extract from ,mr4 ,hallam solely  
for the sake of his authority for       
rendering the word vel by and2 and not  
by any means for the purpose of         
indorsing the opinion he suggests1 that 
legem terr authorized judgments by      
default or demurrer1 without the        

intervention of a jury4 ,he seems to    
imagine that lex terr1 the common law1  
at the time of ,magna ,carta1 included  
everything1 even to the practice of     
courts1 that is1 at this day1 called by 
the name of ,common ,law2 whereas much  
of what is now called ,common ,law has  
grown up1 by usurpation1 since the time 
of ,magna ,carta1 in palpable violation 
of the authority of that charter4 ,he   
says1 ,certainly there are many legal   
procedures1 besides trial by jury1      
through which a party's goods or person 
may be taken4 ,of course there are now  
many such ways1 in which a party's goods
 or person are taken1 besides by the    
judgment of a jury2 but the question is1
 whether such takings are not in        
violation of ,magna ,carta4  ,he seems  
to think that1 in cases of judgment by  
default or demurrer1 there is no need of
 a jury1 and thence to infer that legem 
terr may not have required a jury in    
those cases4 ,but this opinion is       
founded on the erroneous idea that      

juries are required only for determining
 contested facts1 and not for judging of
 the law4 ,in case of default1 the      
plaintiff must present a prima facie    
case before he is entitled to a         
judgment2 and ,magna ,carta1 7supposing 
it to require a jury trial in civil     
cases1 as ,mr4 ,hallam assumes that it  
does17 as much requires that this prima 
facie case1 both law and fact1 be made  
out to the satisfaction of a jury1 as it
 does that a contested case shall be4   
,as for a demurrer1 the jury must try a 
demurrer 7having the advice and         
assistance of the court1 of course7 as  
much as any other matter of law arising 
in a case4  ,mr4 ,hallam evidently      
thinks there is no use for a jury1      
except where there is a trial--meaning  
thereby a contest on matters of fact4   
,his language is1 that there are many   
legal procedures1 besides trial by jury1
 through which a party's goods or person
 may be taken4 ,now ,magna ,carta says  
nothing of trial by jury2 but only of   

the judgment1 or sentence1 of a jury4   
,it is only by inference that we come to
 the conclusion that there must be a    
trial by jury4 ,since the jury alone can
 give the judgment1 or sentence1 we     
infer that they must try the case2      
because otherwise they would be         
incompetent1 and would have no moral    
right1 to give judgment4 ,they must1    
therefore1 examine the grounds1 7both of
 law and fact17 or rather try the       
grounds1 of every action whatsoever1    
whether it be decided on default1       
demurrer1 or otherwise1 and render their
 judgment1 or sentence1 thereon1 before 
any judgment can be a legal one1 on     
which to take a party's goods or person4
 ,in short1 the principle of ,magna     
,carta is1 that no judgment can be valid
 against a party's goods or person1 7not
 even a judgment for costs17 except a   
judgment rendered by a jury4 ,of course 
a jury must try every question1 both of 
law and fact1 that is involved in the   
rendering of that judgment4 ,they are to

 have the assistance and advice of the  
judges1 so far as they desire them2 but 
the judgment itself must be theirs1 and 
not the judgment of the court4  ,as to  
process of attachment for contempt1 it  
is of course lawful for a judge1 in his 
character of a peace officer1 to issue a
 warrant for the arrest of a man guilty 
of a contempt1 as he would for the      
arrest of any other offender1 and hold  
him to bail1 7or1 in default of bail1   
commit him to prison17 to answer for his
 offence before a jury4 ,or he may order
 him into custody without a warrant when
 the offence is committed in the judge's
 presence4 ,but there is no reason why a
 judge should have the power of         
punishing for contempt1 any more than   
for any other offence4 ,and it is one of
 the most dangerous powers a judge can  
have1 because it gives him absolute     
authority in a court of justice1 and    
enables him to tyrannize as he pleases  
over parties1 counsel1 witnesses1 and   
jurors4 ,if a judge have power to punish

 for contempt1 and to determine for     
himself what is a contempt1 the whole   
administration of justice 7or injustice1
 if he choose to make it so7 is in his  
hands4 ,and all the rights of jurors1   
witnesses1 counsel1 and parties1 are    
held subject to his pleasure1 and can be
 exercised only agreeably to his will4  
,he can of course control the entire    
proceedings in1 and consequently the    
decision of1 every cause1 by restraining
 and punishing every one1 whether party1
 counsel1 witness1 or juror1 who        
presumes to offer anything contrary to  
his pleasure4  ,this arbitrary power1   
which has been usurped and exercised by 
judges to punish for contempt1 has      
undoubtedly had much to do in subduing  
counsel into those servile1 obsequious1 
and cowardly habits1 which so           
universally prevail among them1 and     
which have not only cost so many clients
 their rights1 but have also cost the   
people so many of their liberties4  ,if 
any summary punishment for contempt be  

ever necessary1 7as it probably is not17
 beyond exclusion for the time being    
from the court-room1 7which should be   
done1 not as a punishment1 but for      
self-protection1 and the preservation of
 order17 the judgment for it should be  
given by the jury1 7where the trial is  
before a jury17 and not by the court1   
for the jury1 and not the court1 are    
really the judges4 ,for the same reason1
 exclusion from the court-room should be
 ordered only by the jury1 in cases when
 the trial is before a jury1 because    
they1 being the real judges and triers  
of the cause1 are entitled1 if anybody1 
to the control of the court-room4 ,in   
appeal courts1 where no juries sit1 it  
may be necessary--not as a punishment1  
but for self-protection1 and the        
maintenance of order--that the court    
should exercise the power of excluding a
 person1 for the time being1 from the   
court-room2 but there is no reason why  
they should proceed to sentence him as a
 criminal1 without his being tried by a 

jury4  ,if the people wish to have their
 rights respected and protected in      
courts of justice1 it is manifestly of  
the last importance that they jealously 
guard the liberty of parties1 counsel1  
witnesses1 and jurors1 against all      
arbitrary power on the part of the      
court4  ,certainly ,mr4 ,hallam may very
 well say that one may doubt whether    
these 7the several cases he has         
mentioned7 were in contemplation of the 
framers of ,magna ,carta--that is1 as   
exceptions to the rule requiring that   
all judgments1 that are to be enforced  
against a party's goods or person1 be   
rendered by a jury4  ,again1 ,mr4       
,hallam says1 if the word vel be        
rendered by and1 the meaning will be1   
that no person shall be disseized1 c41  
except upon a lawful cause of action4   
,this is true2 but it does not follow   
that any cause of action1 founded on    
statute only1 is therefore a lawful     
cause of action1 within the meaning of  
legem terr1 or the ,common ,law4 ,within

 the meaning of the legem terr of ,magna
 ,carta1 nothing but a common law cause 
of action is a lawful one4  ,footnote   
#cc3 ,hallam says1 ,it appears as if the
 ordeal were permitted to persons       
already convicted by this verdict of a  
jury4--#b ,middle ,ages1 #ddf1 note4    
,,chapter ,,iii4  ,,additional ,,proofs 
,,of ,,the ,,rights ,,and ,,duties ,,of 
,,jurors4   ,if any evidence1 extraneous
 to the history and language of ,magna  
,carta1 were needed to prove that1 by   
that chapter which guaranties the trial 
by jury1 all was meant that has now been
 ascribed to it1 and that the           
legislation of the king was to be of no 
authority with the jury beyond what they
 chose to allow to it1 and that the     
juries were to limit the punishments to 
be inflicted1 we should find that       
evidence in various sources1 such as the
 laws1 customs1 and characters of their 
ancestors on the continent1 and of the  
northern ,europeans generally2 in the   
legislation and customs that immediately

 succeeded ,magna ,carta2 in the oaths  
that have at different times been       
administered to jurors1 c41 c4 ,this    
evidence can be exhibited here but      
partially4 ,to give it all would require
 too much space and labor4   ,,section  
,i4  ,weakness of the ,regal ,authority4
  ,hughes1 in his preface to his        
translation of ,horne's ,mirror of      
,justices1 7a book written in the time  
of ,edward ,i41 #abgb to #acjg17 giving 
a concise view of the laws of ,england  
generally1 says3     ,although in the   
,saxon's time ,i find the usual words of
 the acts then    to have been edictum1 
7edict17 constitutio1 7statute17 little 
mention being made of the commons1 yet  
,i further find that1 tum    demum leges
 vim et vigerem habuerunt1 cum fuerunt  
non modo institut    sed firmat         
approbatione communitatis4 7,the laws   
had force and    vigor only when they   
were not only enacted1 but confirmed by 
the    approval of the community47  ,the
 ,mirror of ,justices itself also says1 

7ch4 #a1 sec4 #c17 in speaking ,of the  
first ,constitutions of the ,ancient    
,kings3     ,many ordinances were made  
by many kings1 until the time of the    
king    that now is 7,edward ,i472 the  
which ordinances were abused1 or not    
used by many1 nor very current1 because 
they were not put in    writing1 and    
certainly published4--,mirror of        
,justices1 p4 #f4  ,hallam says3        
,the ,franks1 ,lombards1 and ,saxons    
seem alike to have been jealous of      
judicial authority2 and averse to       
surrendering what concerned every       
man's private right1 out of the hands of
 his neighbors and    equals4--#a       
,middle ,ages1 #bga4  ,the judicial     
authority1 here spoken of1 was the      
authority of the kings1 7who at that    
time united the office of both          
legislators and judges17 and not of a   
separate department of government1      
called the judiciary1 like what has     
existed in more modern times4#cd  ,hume 
says3     ,the government of the        

,germans1 and that of all the northern  
nations1    who established themselves  
on the ruins of ,rome1 was always       
extremely    free2 and those fierce     
people1 accustomed to independence and  
inured    to arms1 were more guided by  
persuasion than authority1 in the       
submission which they paid to their     
princes4 ,the military despotism1       
which had taken place in the ,roman     
empire1 and which1 previously to    the 
irruption of those conquerors1 had sunk 
the genius of men1 and    destroyed     
every noble principle of science and    
virtue1 was unable to    resist the     
vigorous efforts of a free people1 and  
,europe1 as from a    new epoch1        
rekindled her ancient spirit1 and shook 
off the base    servitude to arbitrary  
will and authority under which she had  
so long    labored4 ,the free           
constitutions then established1 however 
impaired by    the encroachments of     
succeeding princes1 still preserve an   
air of    independence and legal        

administration1 which distinguished the 
,european nations2 and if that part of  
the globe maintain sentiments    of     
liberty1 honor1 equity1 and valor1      
superior to the rest of    mankind1 it  
owes these advantages chiefly to the    
seeds implanted by    those generous    
barbarians4     ,the ,saxons1 who       
subdued ,britain1 as they enjoyed great 
liberty in    their own country1        
obstinately retained that invaluable    
possession in    their new settlement2  
and they imported into this island the  
same    principles of independence1     
which they had inherited from their     
ancestors4 ,the chieftains1 7for such   
they were1 more than kings or           
princes17 who commanded them in those   
military expeditions1 still    possessed
 a very limited authority2 and as the   
,saxons exterminated1    rather than    
subdued the ancient inhabitants1 they   
were1 indeed1    transplanted into a new
 territory1 but preserved unaltered all 
their    civil and military             

institutions4 ,the language was pure    
,saxon2 even    the names of places1    
which often remain while the tongue     
entirely    changes1 were almost all    
affixed by the conquerors2 the manners  
and    customs were wholly ,german2 and 
the same picture of a fierce and bold   
liberty1 which is drawn by the masterly 
pen of ,tacitus1 will suit    those     
founders of the ,english government4    
,the king1 so far from    being invested
 with arbitrary power1 was only         
considered as the first    among the    
citizens2 his authority depended more on
 his personal    qualities than on his  
station2 he was even so far on a level  
with the    people1 that a stated price 
was fixed for his head1 and a legal fine
    was levied upon his murderer1 which 
though proportionate to his    station1 
and superior to that paid for the life  
of a subject1 was a    sensible mark of 
his subordination to the community4--#a 
,hume1    ,appendix1 #a4  ,stuart says3 
,the ,saxons brought along with them    

into ,britain their own customs1        
language1 and civil institutions4 ,free 
in ,germany1 they renounced not    their
 independence1 when they had conquered4 
,proud from victory1 and    with their  
swords in their hands1 would they       
surrender their    liberties to a       
private man8 ,would temporary leaders1  
limited in their    powers1 and         
unprovided in resources1 ever think to  
usurp an authority    over warriors1 who
 considered themselves as their equals1 
were    impatient of control1 and       
attached with devoted zeal to their     
privileges8 ,or1 would they find leisure
 to form resolutions1 or                
opportunities to put them in practice1  
amidst the tumult and    confusion of   
those fierce and bloody wars1 which     
their nations first    waged with the   
,britons1 and then engaged in among     
themselves8    ,sufficiently flattered  
in leading the armies of their          
countrymen1 the    ambition of          
commanders could as little suggest such 

designs1 as the    liberty of the people
 could submit to them4 ,the conquerors  
of ,britain    retained their           
independence2 and this island saw itself
 again in    that free state in which   
the ,roman arms had discovered it4      
,the same firmness of character1 and    
generosity of manners1 which1 in        
general1 distinguished the ,germans1    
were possessed in an eminent    degree  
by the ,saxons2 and while we endeavor to
 unfold their political    institutions1
 we must perpetually turn our           
observation to that    masterly picture 
in which the ,roman historian has       
described these    nations4 ,in the     
woods of ,germany shall we find the     
principles which    directed the state  
of land1 in the different kingdoms of   
,europe2 and    there shall we find the 
foundation of those ranks of men1 and of
    those civil arrangements1 which the 
barbarians everywhere    established2   
and which the ,english alone have had   
the good fortune1    or the spirit1 to  

preserve4--,stuart on the ,constitution 
of    ,england1 p4 #ei-fa4     ,kings   
they 7the ,germans7 respected as the    
first magistrates of the    state2 but  
the authority possessed by them was     
narrow and    limited4--,ditto1 p4 #acd4
     ,did he1 7the king17 at any time1  
relax his activity and martial    ardor1
 did he employ his abilities to the     
prejudice of his nation1 or    fancy he 
was superior to the laws2 the same power
 which raised him to    honor1 humbled  
and degraded him4 ,the customs and      
councils of his    country pointed out  
to him his duty2 and if he infringed on 
the    former1 or disobeyed the latter1 
a fierce people set aside his           
authority4 99 99     ,his long hair was 
the only ornament he affected1 and to be
 foremost    to attack an enemy was his 
chief distinction4 ,engaged in every    
hazardous expedition1 he was a stranger 
to repose2 and1 rivalled by    half the 
heroes of his tribe1 he could obtain    
little power4 ,anxious    and watchful  

for the public interest1 he felt every  
moment his    dependence1 and gave      
proofs of his submission4     ,he       
attended the general assembly of his    
nation1 and was allowed the    privilege
 to harangue it first2 but the arts of  
persuasion1 though    known and         
respected by a rude people1 were        
unequally opposed to the    prejudices  
and passions of men4--,ditto1 p4 #ace-f4
     ,the authority of a ,saxon monarch 
was not more considerable4 ,the         
,saxons submitted not to the arbitrary  
rule of princes4 ,they    administered  
an oath to their sovereigns1 which bound
 them to    acknowledge the laws1 and to
 defend the rights of the church and    
people2 and if they forgot this         
obligation1 they forfeited their        
office4 ,in both countries1 a price was 
affixed on kings1 a fine    expiated    
their murder1 as well as that of the    
meanest citizen2 and    the smallest    
violation of ancient usage1 or the least
 step towards    tyranny1 was always    

dangerous1 and often fatal to           
them4--,ditto1 p4    #aci-dj4     ,they 
were not allowed to impose taxes on the 
kingdom4--,ditto1 p4    #adf4     ,like 
the ,german monarchs1 they deliberated  
in the general assembly    of the       
nation2 but their legislative authority 
was not much    respected2 and their    
assent was considered in no better light
 than    as a form4 ,this1 however1 was 
their chief prerogative2 and they       
employed it to acquire an ascendant in  
the state4 ,to art and    insinuation   
they turned1 as their only resource1 and
 flattered a    people whom they could  
not awe2 but address1 and the abilities 
to    persuade1 were a weak compensation
 for the absence of real power4         
,they declared war1 it is said1 and made
 peace4 ,in both cases1    however1 they
 acted as the instruments of the state1 
and put in    execution the resolutions 
which its councils had decreed4 ,if1    
indeed1    an enemy had invaded the     
kingdom1 and its glory and its safety   

were    concerned1 the great lords took 
the field at the call of their          
sovereign4 ,but had a sovereign declared
 war against a neighboring    state1    
without requiring their advice1 or if he
 meant to revenge by    arms an insult  
offered to him by a subject1 a haughty  
and independent    nobility refused     
their assistance4 ,these they considered
 as the    quarrels of the king1 and not
 of the nation2 and in all such         
emergencies he could only be assisted by
 his retainers and                      
dependents4--,ditto1 p4 #adg-h4     ,nor
 must we imagine that the ,saxon1 any   
more than the ,german    monarchs1      
succeeded each other in a lineal        
descent1#ce or that they    disposed of 
the crown at their pleasure4 ,in both   
countries1 the free    election of the  
people filled the throne2 and their     
choice was the    only rule by which    
princes reigned4 ,the succession1       
accordingly1 of    their kings was often
 broken and interrupted1 and their      

depositions    were frequent and        
groundless4 ,the will of a prince whom  
they had long    respected1 and the     
favor they naturally transferred to his 
descendant1 made them often advance him 
to the royal dignity2 but the    crown  
of his ancestor he considered as the    
gift of the people1 and    neither      
expected nor claimed it as a            
right4--,ditto1 p4 #aea-c4  ,in ,germany
 ,it was the business of the great to   
command in war1 and in peace they       
distributed justice4 99 99     ,the     
princes in ,germany were earls in       
,england4 ,the great    contended in    
both countries in the number of their   
retainers1 and in    that splendor and  
magnificence which are so alluring to a 
rude    people2 and though they joined  
to set bounds to regal power1 they      
were often animated against each other  
with the fiercest hatred4 ,to a    proud
 and impatient nobility it seemed little
 and unsuiting to give    or accept     
compositions for the injuries they      

committed or received2    and their     
vassals adopting their resentment and   
passions1 war and    bloodshed alone    
could terminate their quarrels4 ,what   
necessarily    resulted from their      
situation in society1 was continued as a
    privilege2 and the great1 in both   
countries1 made war1 of their    private
 authority1 on their enemies4 ,the      
,saxon earls even carried    their arms 
against their sovereigns2 and1          
surrounded with retainers1    or secure 
in fortresses and castles1 they despised
 their resentment1    and defied their  
power4     ,the judges of the people1   
they presided in both countries in      
courts    of law4#cf ,the particular    
districts over which they exerted their 
authority were marked out in ,germany by
 the council of the state2 and    in    
,england their jurisdiction extended    
over the fiefs and other    territories 
they possessed4 ,all causes1 both civil 
and criminal1 were    tried before them2
 and they judged1 except in cases of the

 utmost    importance1 without appeal4  
,they were even allowed to grant pardon 
to    criminals1 and to correct by their
 clemency the rigors of justice4    ,nor
 did the sovereign exercise any         
authority in their lands4 ,in these     
his officers formed no courts1 and his  
writ was disregarded4 99 99     ,they   
had officers1 as well as the king1 who  
collected their    revenues1 and added  
to their greatness2 and the inhabitants 
of their    lands they distinguished by 
the name of subjects4     ,but to attend
 the general assembly of their nation   
was the chief    prerogative of the     
,german and ,saxon princes2 and as they 
consulted    the interest of their      
country1 and deliberated concerning     
matters of    state1 so in the king's   
court1 of which also they were members1 
they assisted to pronounce judgment in  
the complaints and appeals    which were
 lodged in it4--,ditto1 p4 #aeh to #afe4
  ,henry says3     ,nothing can be more 
evident than this important truth2 that 

our    ,anglo-,saxon kings were not     
absolute monarchs2 but that their powers
    and prerogatives were limited by the
 laws and customs of the country4       
,our ,saxon ancestors had been governed 
by limited monarchs in their    native  
seats on the continent2 and there is not
 the least appearance    or probability 
that they relinquished their liberties1 
and submitted    to absolute government 
in their new settlements in this island4
 ,it is    not to be imagined that men1 
whose reigning passion was the love of  
liberty1 would willingly resign it2 and 
their new sovereigns1 who had    been   
their fellow-soldiers1 had certainly no 
power to compel them to    such a       
resignation4--#c ,henry's ,history of   
,great ,britain1 #ceh4     ,mackintosh  
says3 ,the ,saxon chiefs1 who were      
called kings1 originally    acquired    
power by the same natural causes which  
have gradually1 and    everywhere1      
raised a few men above their fellows4   
,they were1    doubtless1 more          

experienced1 more skilful1 more brave1  
or more    beautiful1 than those who    
followed them4 99 99 ,a king was        
powerful in    war by the lustre of his 
arms1 and the obvious necessity of      
obedience4 ,his influence in peace      
fluctuated with his personal            
character4 ,in the progress of usage his
 power became more fixed and    more    
limited4 99 99 ,it would be very        
unreasonable to suppose that the        
northern ,germans who had conquered     
,england1 had so far changed their      
characteristic habits from the age of   
,tacitus1 that the victors    became    
slaves1 and that their generals were    
converted into                          
tyrants4--,mackintosh's ,hist4 of       
,england1 ,ch4 #b4 #de ,lardner's ,cab4 
,cyc41 #gc-d4  ,rapin1 in his discourse 
on the ,origin and ,nature of the       
,english ,constitution1 says3     ,there
 are but two things the ,saxons did not 
think proper to trust    their kings    
with2 for being of like passions with   

other men1 they    might very possibly  
abuse them2 namely1 the power of        
changing the    laws enacted by consent 
of king and people2 and the power of    
raising    taxes at pleasure4 ,from     
these two articles sprung numberless    
branches    concerning the liberty and  
property of the subject1 which the king 
cannot touch1 without breaking the      
constitution1 and they are the          
distinguishing character of the ,english
 monarchy4 ,the prerogatives of    the  
crown1 and the rights and privileges of 
the people1 flowing from    the two     
fore-mentioned articles1 are the ground 
of all the laws that    from time to    
time have been made by unanimous consent
 of king and    people4 ,the ,english   
government consists in the strict union 
of the    king's prerogatives with the  
people's liberties4 99 99 ,but when     
kings    arose1 as some there were1 that
 aimed at absolute power1 by changing   
the old1 and making new laws1 at        
pleasure2 by imposing illegal taxes     

on the people2 this excellent government
 being1 in a manner1    dissolved by    
these destructive measures1 confusion   
and civil wars    ensued1 which some    
very wrongfully ascribe to the fickle   
and restless    temper of the           
,english4--,rapin's ,preface to his     
,history of ,england4  ,hallam says that
 among the ,saxons1 the royal authority 
was weak4--#b ,middle ,ages1 #djc4  ,but
 although the king himself had so little
 authority1 that it cannot be supposed  
for a moment that his laws were regarded
 as imperative by the people1 it has    
nevertheless been claimed1 in modern    
times1 by some who seem determined to   
find or make a precedent for the present
 legislative authority of parliament1   
that his laws were authoritative1 when  
assented to by the ,witena-gemote1 or   
assembly of wise men--that is1 the      
bishops and barons4 ,but this assembly  
evidently had no legislative power      
whatever4 ,the king would occasionally  
invite the bishops and barons to meet   

him for consultation on public affairs1 
simply as a council1 and not as a       
legislative body4 ,such as saw fit to   
attend1 did so4 ,if they were agreed    
upon what ought to be done1 the king    
would pass a law accordingly1 and the   
barons and bishops would then return and
 inform the people orally what laws had 
been passed1 and use their influence    
with them to induce them to conform to  
the law of the king1 and the            
recommendation of the council4 ,and the 
people no doubt were much more likely to
 accept a law of the king1 if it had    
been approved by this council1 than if  
it had not4 ,but it was still only a law
 of the king1 which they obeyed or      
disregarded according to their own      
notions of expediency4 ,the numbers who 
usually attended this council were too  
small to admit of the supposition that  
they had any legislative authority      
whatever1 to impose laws upon the people
 against their will4  ,lingard says3    
,it was necessary that the king should  

obtain the assent of these    7the      
members of the ,witena-gemotes7 to all  
legislative enactments2    because1     
without their acquiescence and support1 
it was impossible    to carry them into 
execution4 ,to many charters 7laws7 we  
have the    signatures of the ,witan4   
,they seldom exceed thirty in number2   
they    never amount to sixty4--#a      
,lingard1 #dhf4  ,it is ridiculous to   
suppose that the assent of such an      
assembly gave any authority to the laws 
of the king1 or had any influence in    
securing obedience to them1 otherwise   
than by way of persuasion4 ,if this body
 had had any real legislative authority1
 such as is accorded to legislative     
bodies of the present day1 they would   
have made themselves at once the most   
conspicuous portion of the government1  
and would have left behind them abundant
 evidence of their power1 instead of the
 evidence simply of their assent to a   
few laws passed by the king4  ,more than
 this4 ,if this body had had any real   

legislative authority1 they would have  
constituted an aristocracy1 having1 in  
conjunction with the king1 absolute     
power over the people4 ,assembling      
voluntarily1 merely on the invitation of
 the king2 deputed by nobody but        
themselves2 representing nobody but     
themselves2 responsible to nobody but   
themselves2 their legislative authority1
 if they had had any1 would of necessity
 have made the government the government
 of an aristocracy merely1 and the      
people slaves1 of course4 ,and this     
would necessarily have been the picture 
that history would have given us of the 
,anglo-,saxon government1 and of        
,anglo-,saxon liberty4  ,the fact that  
the people had no representation in this
 assembly1 and the further fact that1   
through their juries alone1 they        
nevertheless maintained that noble      
freedom1 the very tradition of which    
7after the substance of the thing itself
 has ceased to exist7 has constituted   
the greatest pride and glory of the     

nation to this day1 prove that this     
assembly exercised no authority which   
juries of the people acknowledged1      
except at their own discretion4#cg      
,there is not a more palpable truth1 in 
the history of the ,anglo-,saxon        
government1 than that stated in the     
,introduction to ,gilbert's ,history of 
the ,common ,pleas1#ch viz41 that the   
,county and ,hundred ,courts1 7to which 
should have been added the other courts 
in which juries sat1 the courts-baron   
and court-leet17 in those times were the
 real and only ,parliaments of the      
kingdom4 ,and why were they the real and
 only parliaments of the kingdom8       
,solely because1 as will be hereafter   
shown1 the juries in those courts tried 
causes on their intrinsic merits1       
according to their own ideas of justice1
 irrespective of the laws agreed upon by
 kings1 priests1 and barons2 and        
whatever principles they uniformly1 or  
perhaps generally1 enforced1 and none   
others1 became practically the law of   

the land as matter of course4#ci        
,finally1 on this point4 ,conclusive    
proof that the legislation of the king  
was of little or no authority1 is found 
in the fact that the kings enacted so   
few laws4 ,if their laws had been       
received as authoritative1 in the manner
 that legislative enactments are at this
 day1 they would have been making laws  
continually4 ,yet the codes of the most 
celebrated kings are very small1 and    
were little more than compilations of   
immemorial customs4 ,the code of ,alfred
 would not fill twelve pages of the     
statute book of ,massachusetts1 and was 
little or nothing else than a           
compilation of the laws of ,moses1 and  
the ,saxon customs1 evidently collected 
from considerations of convenience1     
rather than enacted on the principle of 
authority4 ,the code of ,edward the     
,confessor would not fill twenty pages  
of the statute book of ,massachusetts1  
and1 says ,blackstone1 seems to have    
been no more than a new edition1 or     

fresh promulgation of ,alfred's code1 or
 dome-book1 with such additions and     
improvements as the experience of a     
century and a half suggested4--#a       
,blackstone1 #ff4dj  ,the ,code of      
,william the ,conqueror#da would fill   
less than seven pages of the statute    
book of ,massachusetts2 and most of the 
laws contained in it are taken from the 
laws of the preceding kings1 and        
especially of ,edward the ,confessor    
7whose laws ,william swore to observe72 
but few of his own being added4  ,the   
codes of the other ,saxon and ,norman   
kings were1 as a general rule1 less     
voluminous even than these that have    
been named2 and probably did not exceed 
them in originality4#db ,the ,norman    
princes1 from ,william the ,conqueror to
 ,john1 ,i think without exception1     
bound themselves1 and1 in order to      
maintain their thrones1 were obliged to 
bind themselves1 to observe the ancient 
laws and customs1 in other words1 the   
lex terr1 or common law of the kingdom4 

,even ,magna ,carta contains hardly     
anything other than this same common    
law1 with some new securities for its   
observance4  ,how is this abstinence    
from legislation1 on the part of the    
ancient kings1 to be accounted for1     
except on the supposition that the      
people would accept1 and juries enforce1
 few or no new laws enacted by their    
kings8 ,plainly it can be accounted for 
in no other way4 ,in fact1 all history  
informs us that anciently the attempts  
of the kings to introduce or establish  
new laws1 met with determined resistance
 from the people1 and generally resulted
 in failure4 ,nolumus ,leges ,angli     
mutari1 7we will that the laws of       
,england be not changed17 was a         
determined principle with the           
,anglo-,saxons1 from which they seldom  
departed1 up to the time of ,magna      
,carta1 and indeed until long after4#dc 
,,section ,,ii4  ,the ,ancient ,common  
,law ,juries were mere ,courts of       
,conscience4  ,but it is in the         

administration of justice1 or of law1   
that the freedom or subjection of a     
people is tested4 ,if this              
administration be in accordance with the
 arbitrary will of the legislator--that 
is1 if his will1 as it appears in his   
statutes1 be the highest rule of        
decision known to the judicial          
tribunals1--the government is a         
despotism1 and the people are slaves4   
,if1 on the other hand1 the rule of     
decision be those principles of natural 
equity and justice1 which constitute1 or
 at least are embodied in1 the general  
conscience of mankind1 the people are   
free in just so far as that conscience  
is enlightened4  ,that the authority of 
the king was of little weight with the  
judicial tribunals1 must necessarily be 
inferred from the fact already stated1  
that his authority over the people was  
but weak4 ,if the authority of his laws 
had been paramount in the judicial      
tribunals1 it would have been paramount 
with the people1 of course2 because they

 would have had no alternative but      
submission4 ,the fact1 then1 that his   
laws were not authoritative with the    
people1 is proof that they were not     
authoritative with the tribunals--in    
other words1 that they were not1 as     
matter of course1 enforced by the       
tribunals4  ,but we have additional     
evidence that1 up to the time of ,magna 
,carta1 the laws of the king were not   
binding upon the judicial tribunals2 and
 if they were not binding before that   
time1 they certainly were not           
afterwards1 as has already been shown   
from ,magna ,carta itself4 ,it is       
manifest from all the accounts we have  
of the courts in which juries sat1 prior
 to ,magna ,carta1 such as the          
court-baron1 the hundred court1 the     
court-leet1 and the county court1 that  
they were mere courts of conscience1 and
 that the juries were the judges1       
deciding causes according to their own  
notions of equity1 and not according to 
any laws of the king1 unless they       

thought them just4  ,these courts1 it   
must be considered1 were very numerous1 
and held very frequent sessions4 ,there 
were probably seven1 eight1 or nine     
hundred courts a month1 in the kingdom2 
the object being1 as ,blackstone says1  
to bring justice home to every man's    
door4 7#c ,blackstone1 #cj47 ,the number
 of the county courts1 of course1       
corresponded to the number of counties1 
7#cf47 ,the court-leet was the criminal 
court for a district less than a county4
 ,the hundred court was the court for   
one of those districts anciently called 
a hundred1 because1 at the time of their
 first organization for judicial        
purposes1 they comprised 7as is         
supposed7 but a hundred families4#dd    
,the court-baron was the court for a    
single manor1 and there was a court for 
every manor in the kingdom4 ,all these  
courts were holden as often as once in  
three or five weeks2 the county court   
once a month4 ,the king's judges were   
present at none of these courts2 the    

only officers in attendance being       
sheriffs1 bailiffs1 and stewards1 merely
 ministerial1 and not judicial1         
officers2 doubtless incompetent1 and1 if
 not incompetent1 untrustworthy1 for    
giving the juries any reliable          
information in matters of law1 beyond   
what was already known to the jurors    
themselves4 ,and yet these were the     
courts1 in which was done all the       
judicial business1 both civil and       
criminal1 of the nation1 except appeals1
 and some of the more important and     
difficult cases4#de ,it is plain that   
the juries1 in these courts1 must1 of   
necessity1 have been the sole judges of 
all matters of law whatsoever2 because  
there was no one present1 but sheriffs1 
bailiffs1 and stewards1 to give them any
 instructions2 and surely it will not be
 pretended that the jurors were bound to
 take their law from such sources as    
these4  ,in the second place1 it is     
manifest that the principles of law1 by 
which the juries determined causes1     

were1 as a general rule1 nothing else   
than their own ideas of natural equity1 
and not any laws of the king2 because   
but few laws were enacted1 and many of  
those were not written1 but only agreed 
upon in council4#df ,of those that were 
written1 few copies only were made1     
7printing being then unknown17 and not  
enough to supply all1 or any            
considerable number1 of these numerous  
courts4 ,beside and beyond all this1 few
 or none of the jurors could have read  
the laws1 if they had been written2     
because few or none of the common people
 could1 at that time1 read4 ,not only   
were the common people unable to read   
their own language1 but1 at the time of 
,magna ,carta1 the laws were written in 
,latin1 a language that could be read by
 few persons except the priests1 who    
were also the lawyers of the nation4    
,mackintosh says1 the first act of the  
,house of ,commons composed and recorded
 in the ,english tongue1 was in #adae1  
two centuries after ,magna ,carta4#dg   

,up to this time1 and for some seventy  
years later1 the laws were generally    
written either in ,latin or ,french2    
both languages incapable of being read  
by the common people1 as well ,normans  
as ,saxons2 and one of them1 the ,latin1
 not only incapable of being read by    
them1 but of being even understood when 
it was heard by them4  ,to suppose that 
the people were bound to obey1 and      
juries to enforce1 laws1 many of which  
were unwritten1 none of which they could
 read1 and the larger part of which     
7those written in ,latin7 they could not
 translate1 or understand when they     
heard them read1 is equivalent to       
supposing the nation sunk in the most   
degrading slavery1 instead of enjoying a
 liberty of their own choosing4  ,their 
knowledge of the laws passed by the king
 was1 of course1 derived only from oral 
information2 and the good laws1 as some 
of them were called1 in                 
contradistinction to others--those which
 the people at large esteemed to be good

 laws--were doubtless enforced by the   
juries1 and the others1 as a general    
thing1 disregarded4#dh  ,that such was  
the nature of judicial proceedings1 and 
of the power of juries1 up to the time  
of ,magna ,carta1 is further shown by   
the following authorities4     ,the     
sheriffs and bailiffs caused the free   
tenants of their bailiwics    to meet at
 their counties and hundreds2 at which  
justice was so    done1 that every one  
so judged his neighbor by such judgment 
as a man    could not elsewhere receive 
in the like cases1 until such times as  
the customs of the realm were put in    
writing1 and certainly    published4    
,and although a freeman commonly was not
 to serve 7as a juror or    judge7      
without his assent1 nevertheless it was 
assented unto that    free tenants      
should meet together in the counties and
 hundreds1 and    lords courts1 if they 
were not specially exempted to do such  
suits1    and there judged their        
neighbors4--,mirror of ,justices1 p4 #g1

 #h4  ,gilbert1 in his treatise on the  
,constitution of ,england1 says3     ,in
 the county courts1 if the debt was     
above forty shillings1 there    issued a
 justicies 7a commission7 to the        
sheriff1 to enable him to    hold such a
 plea1 where the suitors 7jurors7 are   
judges of the    law and                
fact4--,gilbert's ,cases in ,law and    
,equity1 c41 c41 #def4  ,all the ancient
 writs1 given in ,glanville1 for        
summoning jurors1 indicate that the     
jurors judged of everything1 on their   
consciences only4 ,the writs are in this
 form3     ,summon twelve free and legal
 men 7or sometimes twelve knights7 to be
    in court1 prepared upon their oaths 
to declare whether ,a or ,b have    the 
greater right to the land 7or other     
thing7 in question4 ,see    ,writs in   
,beames' ,glanville1 p4 #ed to #gj1 and 
#bcc-cjf to #ccb4  ,crabbe1 speaking of 
the time of ,henry ,i41 7#aajj to       
#aace17 recognizes the fact that the    
jurors were the judges4 ,he says3       

,by one law1 every one was to be tried  
by his peers1 who were of the    same   
neighborhood as himself4 99 99 ,by      
another law1 the judges1 for so    the  
jury were called1 were to be chosen by  
the party impleaded1    after the manner
 of the ,danish nembas2 by which1       
probably1 is to be    understood that   
the defendant had the liberty of taking 
exceptions    to1 or challenging the    
jury1 as it was afterwards              
called4--,crabbe's    ,history of the   
,english ,law1 p4 #ee4  ,reeve says3    
,the great court for civil business was 
the county court2 held    once every    
four weeks4 ,here the sheriff presided2 
but the suitors of    the court1 as they
 were called1 that is1 the freemen or   
landholders    of the county1 were the  
judges2 and the sheriff was to execute  
the    judgment4 99 99     ,the hundred 
court was held before some bailiff2 the 
leet    before the lord of the manor's  
steward4#di 99 99     ,out of the county
 court was derived an inferior court of 

civil    jurisdiction1 called the       
court-baron4 ,this was held from three  
weeks to three weeks1 and was in every  
respect like the county    court2 7that 
is1 the jurors were judges in it27 only 
the lord to    whom this franchise was  
granted1 or his steward1 presided       
instead    of the sheriff4--#a ,reeve's 
,history of the ,english ,law1 p4 #g4   
,chief ,baron ,gilbert says3            
,besides the tenants of the king1 which 
held per baroniam1 7by the    right of a
 baron17 and did suit and service       
7served as judges7 at his    own court2 
and the burghers and tenants in ancient 
demesne1 that did    suit and service   
7served as jurors or judges7 in their   
own court in    person1 and in the      
king's by proxy1 there was also a set of
    freeholders1 that did suit and      
service 7served as jurors7 at the       
county court4 ,these were such as       
anciently held of the lord of the       
county1 and by the escheats of earldoms 
had fallen to the king2 or    such as   

were granted out by service to hold of  
the king1 but with    particular        
reservation to do suit and service      
7serve as jurors7    before the king's  
bailiff2 because it was necessary the   
sheriff1 or    bailiff of the king1     
should have suitors 7jurors7 at the     
county    court1 that the business might
 be despatched4 ,these suitors are the  
pares 7peers7 of the county court1 and  
indeed the judges of it2    as the pares
 7peers7 were the judges in every       
court-baron2 and    therefore the king's
 bailiff having a court before him1     
there must be    pares or judges1 for   
the sheriff himself is not a judge2 and 
though    the style of the court is     
,curia prima ,comitatus ,e4,c4 ,milit4' 
vicecom' ,comitat' prd' ,tent' apud ,b41
 c4 7,first ,court of the    county1    
,e4,c4 knight1 sheriff of the aforesaid 
county1 held at ,b41 c472    by which it
 appears that the court was the         
sheriff's2 yet1 by    the old feudal    
constitutions1 the lord was not judge1  

but the pares    7peers7 only2 so that1 
even in a justicies1 which was a        
commission to the sheriff to hold plea  
of more than was allowed by    the      
natural jurisdiction of a county court1 
the pares 7peers1    jurors7 only were  
judges1 and not the sheriff2 because it 
was to    hold plea in the same manner  
as they used to do in that 7the lord's7 
court4--,gilbert on the ,court of       
,exchequer1 ch4 #e1 p4 #fa-b4     ,it is
 a distinguishing feature of the feudal 
system1 to make civil    jurisdiction   
necessarily1 and criminal jurisdiction  
ordinarily1    coxtensive with tenure2  
and accordingly there is inseparably    
incident to every manor a court-baron   
7curia baronum71 being a court    in    
which the freeholders of the manor are  
the sole judges1 but in    which the    
lord1 by himself1 or more commonly by   
his steward1    presides4--,political   
,dictionary1 word ,manor4  ,the same    
work1 speaking of the county court1     
says3 ,the judges were the freeholders  

who did suit to the court4 ,see word    
,courts4     ,in the case of freeholders
 attending as suitors1 the county court 
or court-baron1 7as in the case of the  
ancient tenants per baroniam            
attending ,parliament17 the suitors are 
the judges of the court1 both    for law
 and for fact1 and the sheriff or the   
under sheriff in the    county court1   
and the lord or his steward in the      
court-baron1 are    only presiding      
officers1 with no judicial              
authority4--,political    ,dictionary1  
word ,suit4     ,,court1 7curtis1 curia 
aula72 the space enclosed by the walls  
of a    feudal residence1 in which the  
followers of a lord used to assemble    
in the middle ages1 to administer       
justice1 and decide respecting          
affairs of common interest1 c4 ,it was  
next used for those who stood    in     
immediate connexion with the lord and   
master1 the pares curi1    7peers of the
 court17 the limited portion of the     
general assembly1 to    which was       

entrusted the pronouncing of judgment1  
c4--,encyclopedia    ,americana1 word   
,court4     ,in court-barons or county  
courts the steward was not judge1 but   
the    pares 7peers1 jurors72 nor was   
the speaker in the ,house of ,lords     
judge1 but the barons only4--,gilbert on
 the ,court of ,exchequer1    ch4 #c1 p4
 #db4  ,crabbe1 speaking of the ,saxon  
times1 says3     ,the sheriff presided  
at the hundred court1 99 99 and         
sometimes sat    in the place of the    
alderman 7earl7 in the county           
court4--,crabbe1 #bc4  ,the sheriff     
afterwards became the sole presiding    
officer of the county court4  ,sir      
,thomas ,smith1 ,secretary of ,state to 
,queen ,elizabeth1 writing more than    
three hundred years after ,magna ,carta1
 in describing the difference between   
the ,civil ,law and the ,english ,law1  
says3     ,judex is of us called ,judge1
 but our fashion is so divers1 that     
they which give the deadly stroke1 and  
either condemn or acquit the    man for 

guilty or not guilty1 are not called    
judges1 but the twelve    men4 ,and the 
same order as well in civil matters and 
pecuniary1 as in    matters             
criminal4--,smith's ,commonwealth of    
,england1 ch4 #i1 p4 #ec1    ,edition of
 #afba4     ,court-,leet4 ,that the leet
 is the most ancient court in the land  
for criminal matters1 7the court-baron  
being of no less antiquity    in civil17
 has been pronounced by the highest     
legal authority4 99 99    ,lord         
,mansfield states that this court was   
coeval with the    establishment of the 
,saxons here1 and its activity marked   
very    visibly both among the ,saxons  
and ,danes4 99 99 ,the leet is a court  
of    record for the cognizance of      
criminal matters1 or pleas of the crown2
    and necessarily belongs to the king2
 though a subject1 usually the    lord  
of the manor1 may be1 and is1 entitled  
to the profits1    consisting of the    
essoign pence1 fines1 and amerciaments4 
,it is held before the steward1 or was1 

in ancient times1 before the    bailiff1
 of the lord4--,tomlin's ,law ,dict41   
word ,court-,leet4  ,of course the jury 
were the judges in this court1 where    
only a steward or bailiff of a manor    
presided4     ,no cause of consequence  
was determined without the king's writ2 
for    even in the county courts1 of the
 debts1 which were above forty          
shillings1 there issued a ,justicies    
7commission7 to the sheriff1 to         
enable him to hold such plea1 where the 
suitors are judges of the    law and    
fact4--,gilbert's ,history of the       
,common ,pleas1    ,introduction1 p4    
#ai4     ,this position 7that the matter
 of law was decided by the ,king's      
,justices1 but the matter of fact by the
 pares7 is wholly    incompatible with  
the common law1 for the ,jurata 7jury7  
were the sole    judges both of the law 
and the fact4--,gilbert's ,history of   
the    ,common ,pleas1 p4 #gj1 note4    
,we come now to the challenge2 and of   
old the suitors in court1 who    were   

judges1 could not be challenged2 nor by 
the feudal law could    the pares be    
even challenged1 ,pares qui ordinariam  
jurisdictionem    habent recusari non   
possunt2 7the peers who have ordinary   
jurisdiction cannot be rejected27 but   
those suitors who are judges    of the  
court1 could not be challenged2 and the 
reason is1 that there    are several    
qualifications required by the writ1    
viz41 that they be    liberos et legales
 homines de vincineto 7free and legal   
men of the    neighborhood7 of the place
 laid in the declaration1 c41           
c4--,ditto1 p4 #ic4     ,ad questionem  
juris non respondent ,juratores4 7,to   
the question of    law the jurors do not
 answer47 ,the ,annotist says1 that this
 is    indeed a maxim in the ,civil-,law
 ,jurisprudence1 but it does not bind   
an ,english jury1 for by the common law 
of the land the jury are    judges as   
well of the matter of law1 as of the    
fact1 with this    difference only1 that
 the 7a ,saxon word7 or judge on the    

bench is to    give them no assistance  
in determining the matter of fact1 but  
if    they have any doubt among         
themselves relating to matter of law1   
they may then request him to explain it 
to them1 which when he hath    done1 and
 they are thus become well informed1    
they1 and they only1    become competent
 judges of the matter of law4 ,and this 
is the    province of the judge on the  
bench1 namely1 to show1 or teach the    
law1 but not to take upon him the trial 
of the delinquent1 either in    matter  
of fact or in matter of law4 7,here     
various ,saxon laws are    quoted47 ,in 
neither of these fundamental laws is    
there the least    word1 hint1 or idea1 
that the earl or alderman 7that is to   
say1 the    ,prepositus 7presiding      
officer7 of the court1 which is         
tantamount to    the judge on the bench7
 is to take upon him to judge the       
delinquent    in any sense whatever1 the
 sole purport of his office is to teach 
the secular or worldly law4--,ditto1 p4 

#eg1 note4     ,the administration of   
justice was carefully provided for2 it  
was not    the caprice of their lord1   
but the sentence of their peers1 that   
they obeyed4 ,each was the judge of his 
equals1 and each by his equals    was   
judged4--,introd4 to ,gilbert on        
,tenures1 p4 #ab4     ,hallam says3 ,a  
respectable class of free socagers1     
having1 in    general1 full rights of   
alienating their lands1 and holding them
    probably at a small certain rent    
from the lord of the manor1             
frequently occur in ,domes-day ,book4 99
 99 ,they undoubtedly were suitors    to
 the court-baron of the lord1 to whose  
soc1 or right of justice1    they       
belonged4 ,they were consequently judges
 in civil causes1    determined before  
the manorial tribunal4--#b ,middle      
,ages1 #dha4  ,stephens adopts as       
correct the following quotations from   
,blackstone3     ,the ,court-,baron is a
 court incident to every manor in the   
kingdom1    to be holden by the steward 

within the said manor4 99 99 ,it is a   
court of common law1 and it is the court
 before the freeholders who    owe suit 
and service to the manor1 7are bound to 
serve as jurors in    the courts of the 
manor17 the steward being rather the    
registrar    than the judge4 99 99 ,the 
freeholders' court was composed of the  
lord's tenants1 who were the pares      
7equals7 of each other1 and were        
bound by their feudal tenure to assist  
their lord in the dispensation    of    
domestic justice4 ,this was formerly    
held every three weeks2 and    its most 
important business was to determine1 by 
writ of right1 all    controversies     
relating to the right of lands within   
the manor4--#c    ,stephens'            
,commentaries1 #cib-c4 #c ,blackstone1  
#cb-c4     ,a ,hundred ,court is only a 
larger court-baron1 being held for all  
the inhabitants of a particular hundred1
 instead of a manor4 ,the    free       
suitors 7jurors7 are here also the      
judges1 and the steward the             

register4--#c ,stephens1 #cid4 #c       
,blackstone1 #cc4     ,the ,county      
,court is a court incident to the       
jurisdiction of the    sheriff4 99 99   
,the freeholders of the county are the  
real judges in    this court1 and the   
sheriff is the ministerial officer4--#c 
,stephens1 #cie-f4 #c ,blackstone1      
#ce-f4  ,blackstone describes these     
courts1 as courts wherein injuries were 
redressed in an easy and expeditious    
manner1 by the suffrage of neighbors and
 friends4--#c ,blackstone1 #cj4         
,when we read of a certain number of    
freemen chosen by the parties    to     
decide in a dispute--all bound by oath  
to vote in foro    conscientia--and that
 their decision1 not the will of the    
judge    presiding1 ended the suit1 we  
at once perceive that a great           
improvement has been made in the old    
form of compurgation--an    improvement 
which impartial observation can have no 
hesitation to    pronounce as identical 
in its main features with the trial by  

jury4--,dunham's ,middle ,ages1 ,sec4   
#b1 ,b4 #b1 ,ch4 #a4 #eg ,lardner's     
,cab4 ,cyc41 #fj4     ,the bishop and   
the earl1 or1 in his absence1 the       
gerefa1 7sheriff17    and sometimes both
 the earl and the gerefa1 presided at   
the    schyre-mote 7county court72 the  
gerefa 7sheriff7 usually alone          
presided at the mote 7meeting or court7 
of the hundred4 ,in the    cities and   
towns which were not within any peculiar
 jurisdiction1    there was held1 at    
regular stated intervals1 a burgh mote1 
7borough    court17 for the             
administration of justice1 at which a   
gerefa1 or a    magistrate appointed by 
the king1 presided4--,spence's ,origin  
of the    ,laws and ,political          
,institutions of ,modern ,europe1 p4    
#ddd4     ,the right of the plaintiff   
and defendant1 and of the prosecutor and
    criminal1 to challenge the judices1 
7judges17 or assessors1#ej    appointed 
to try the cause in civil matters1 and  
to decide upon the    guilt or innocence

 of the accused in criminal matters1 is 
recognized    in the treatise called the
 ,laws of ,henry the ,first2 but ,i     
cannot    discover1 from the            
,anglo-,saxon laws or histories1 that   
before the    ,conquest the parties had 
any general right of challenge2 indeed1 
had    such right existed1 the          
injunctions to all persons standing in  
the    situation of judges 7jurors7 to  
do right according to their             
conscience1 would scarcely have been so 
frequently and anxiously                
repeated4--,spence1 #def4  ,hale says3  
,the administration of the common       
justice of the kingdom seems to be      
wholly dispensed in the county courts1  
hundred courts1 and    courts-baron2    
except some of the greater crimes       
reformed by the laws    of ,king ,henry 
,i41 and that part thereof which was    
sometimes taken up    by the            
,justitiarius ,angli4     ,this         
doubtless bred great inconvenience1     
uncertainty1 and variety in    the laws1

 viz43     ,first1 by the ignorance of  
the judges1 which were the freeholders  
of the county4 99 99     ,thirdly1 a    
third inconvenience was1 that all the   
business of any    moment was carried by
 parties and factions4 ,for the         
freeholders    being generally the      
judges1 and conversing one among        
another1 and    being as it were the    
chief judges1 not only of the fact1 but 
of the    law2 every man that had a suit
 there1 sped according as he could      
make parties4--#a ,hale's ,history of   
the ,common ,law1 p4 #bdf4     ,in all  
these tribunals1 7county court1 hundred 
court1 c417 the    judges were the free 
tenants1 owing suit to the court1 and   
afterwards called its peers4--#a        
,lingard's ,history of ,england1 #dhh4  
,henry calls the twelve jurors          
assessors1 and says3     ,these         
assessors1 who were in reality judges1  
took a solemn oath1    that they would  
faithfully discharge the duties of their
 office1 and    not suffer an innocent  

man to be condemned1 nor any guilty     
person to    be acquitted4--#c ,henry's 
,history of ,great ,britain1 #cdf4      
,tyrrell says3     ,alfred cantoned his 
kingdom1 first into ,trihings and       
,lathes1 as    they are still called in 
,kent and other places1 consisting of   
three    or four ,hundreds2 in which1   
the freeholders being judges1 such      
causes were brought as could not be     
determined in the ,hundred              
court4--,tyrrell's ,introduction to the 
,history of ,england1 p4 #hj4  ,of the  
,hundred ,court he says3     ,in this   
court anciently1 one of the principal   
inhabitants1 called    the alderman1    
together with the barons of the         
,hundred#ea--;id est the                
freeholders--was judge4--,ditto1 p4 #hj4
  ,also he says3     ,by a law of       
,edward the ,elder1 ',every sheriff     
shall convene the    people once a      
month1 and do equal right to all1       
putting an end to    controversies at   
times appointed4'--,ditto1 p4 #hf4      

,a statute1 emphatically termed the     
',grand ,assize1' enabled the           
defendant1 if he thought proper1 to     
abide by the testimony of the    twelve 
good and lawful knights1 chosen by four 
others of the    vicinage1 and whose    
oaths gave a final decision to the      
contested    claim4--#a ,palgrave's     
,rise and ,progress of the ,english     
,commonwealth1 #bfa4     ,from the      
moment when the crown became accustomed 
to the ',inquest1' a    restraint was   
imposed upon every branch of the        
prerogative4 ,the king    could never be
 informed of his rights1 but through the
 medium of the    people4 ,every        
'extent' by which he claimed the profits
 and    advantages resulting from the   
casualties of tenure1 every process by  
which he repressed the usurpations of   
the baronage1 depended upon the    'good
 men and true' who were impanelled to   
'pass' between the subject    and the   
sovereign2 and the thunder of the       
,exchequer at ,westminster    might be  

silenced by the honesty1 the firmness1  
or the obstinacy1 of    one sturdy      
knight or yeoman in the distant shire4  
,taxation was controlled in the same    
manner by the voice of those who    were
 most liable to oppression4 99 99 ,a    
jury was impanelled to adjudge    the   
proportion due to the sovereign2 and    
this course was not    essentially      
varied1 even after the right of granting
 aids to the    crown was fully         
acknowledged to be vested in the        
parliament of the    realm4 ,the people 
taxed themselves2 and the collection of 
the grants    was checked and           
controlled1 and1 perhaps1 in many       
instances evaded1    by these virtual   
representatives of the community4       
,the principle of the jury was1         
therefore1 not confined to its mere     
application as a mode of trying         
contested facts1 whether in civil or    
criminal cases2 and1 both in its form   
and in its consequences1 it had    a    
very material influence upon the general

 constitution of the realm4    99 99    
,the main-spring of the machinery of    
remedial justice existed in    the      
franchise of the lower and lowest orders
 of the political    hierarchy4 ,without
 the suffrage of the yeoman1 the        
burgess1 and the    churl1 the sovereign
 could not exercise the most important  
and most    essential function of       
royalty2 from them he received the power
 of    life and death2 he could not     
wield the sword of justice until the    
humblest of his subjects placed the     
weapon in his hand4--#a    ,palgrave's  
,rise and ,progress of the ,english     
,constitution1 #bgd-g4  ,coke says1 ,the
 court of the county is no court of     
record1#eb and the suitors are the      
judges thereof4--#d ,inst41 #bff4       
,also1 ,the court of the ,hundred is no 
court of record1 and the suitors be     
thereof judges4--#d ,inst41 #bfg4       
,also1 ,the court-baron is a court      
incident to every manor1 and is not of  
record1 and the suitors be thereof      

judges4--#d ,inst41 #bfh4  ,also1 ,the  
court of ancient demesne is in the      
nature of a court-baron1 wherein the    
suitors are judges1 and is no court of  
record4--#d ,inst41 #bfi4  ,millar says1
 ,some authors have thought that jurymen
 were originally compurgators1 called by
 a defendant to swear that they believed
 him innocent of the facts with which he
 was charged4444 ,but 444 compurgators  
were merely witnesses2 jurymen were1 in 
reality1 judges4 ,the former were called
 to confirm the oath of the party by    
swearing1 according to their belief1    
that he had told the truth1 7in his oath
 of purgation27 the latter were         
appointed to try1 by witnesses1 and by  
all other means of proof1 whether he was
 innocent or guilty4444 ,juries were    
accustomed to ascertain the truth of    
facts1 by the defendant's oath of       
purgation1 together with that of his    
compurgators4444 ,both of them 7jurymen 
and compurgators7 were obliged to swear 
that they would tell the truth4444      

,according to the simple idea of our    
forefathers1 guilt or innocence was     
regarded as a mere matter of fact2 and  
it was thought that no man1 who knew the
 real circumstances of a case1 could be 
at a loss to determine whether the      
culprit ought to be condemned or        
acquitted4--#a ,millar's ,hist4 ,view of
 ,eng4 ,gov41 ch4 #ab1 p4 #ccb-d4       
,also1 ,the same form of procedure1     
which took place in the administration  
of justice among the vassals of a       
barony1 was gradually extended to the   
courts held in the trading              
towns4--,same1 p4 #cce4  ,also1 ,the    
same regulations1 concerning the        
distribution of justice by the          
intervention of juries1 444 were        
introduced into the baron courts of the 
king1 as into those of the nobility1 or 
such of his subjects as retained their  
allodial property4--,same1 p4 #ccg4     
,also4 ,this tribunal 7the aula regis1  
or king's court1 afterwards divided into
 the courts of ,king's ,bench1 ,common  

,pleas1 and ,exchequer7 was properly the
 ordinary baron-court of the king2 and1 
being in the same circumstances with the
 baron-courts of the nobility1 it was   
under the same necessity of trying      
causes by the intervention of a         
jury4--,same1 vol4 #b1 p4 #bib4         
,speaking of the times of ,edward the   
,first1 7#abgb to #acjg17 ,millar says3 
,what is called the petty jury was      
therefore introduced into these         
tribunals1 7the ,king's ,bench1 the     
,common ,pleas1 and the ,exchequer17 as 
well as into their auxiliary courts     
employed to distribute justice in the   
circuits2 and was thus rendered         
essentially necessary in determining    
causes of every sort1 whether civil1    
criminal1 or fiscal4--,same1 vol4 #b1 p4
 #bic-d4  ,also1 ,that this form of     
trial 7by jury7 obtained universally in 
all the feudal governments1 as well as  
in that of ,england1 there can be no    
reason to doubt4 ,in ,france1 in        
,germany1 and in other ,european        

countries1 where we have any accounts of
 the constitution and procedure of the  
feudal courts1 it appears that lawsuits 
of every sort concerning the freemen or 
vassals of a barony1 were determined by 
the pares curi 7peers of the court27 and
 that the judge took little more upon   
him than to regulate the method of      
proceeding1 or to declare the verdict of
 the jury4--,same1 vol4 #a1 ch4 #ab1 p4 
#cbi4  ,also1 ,among the ,gothic nations
 of modern ,europe1 the custom of       
deciding lawsuits by a jury seems to    
have prevailed universally2 first in the
 allodial courts of the county1 or of   
the hundred1 and afterwards in the      
baron-courts of every feudal            
superior4--,same1 vol4 #b1 p4 #bif4     
,palgrave says that in ,germany ,the    
,graff 7gerefa1 sheriff7 placed himself 
in the seat of judgment1 and gave the   
charge to the assembled free ,echevins1 
warning them to pronounce judgment      
according to right and justice4--#b     
,palgrave1 #adg4  ,also1 that1 in       

,germany1 ,the ,echevins were composed  
of the villanage1 somewhat obscured in  
their functions by the learning of the  
grave civilian who was associated to    
them1 and somewhat limited by the       
encroachments of modern feudality2 but  
they were still substantially the judges
 of the court4--,same1 #adh4  ,palgrave 
also says1 ,scotland1 in like manner1   
had the laws of ,burlaw1 or ,birlaw1    
which were made and determined by the   
neighbors1 elected by common consent1 in
 the ,burlaw or ,birlaw courts1 wherein 
knowledge was taken of complaints       
between neighbor and neighbor1 which    
men1 so chosen1 were judges and         
arbitrators1 and called ,birlaw men4--#a
 ,palgrave's ,rise1 c41 p4 #hj4  ,but1  
in order to understand the common law   
trial by jury1 as it existed prior to   
,magna ,carta1 and as it was guaranteed 
by that instrument1 it is perhaps       
indispensable to understand more fully  
the nature of the courts in which juries
 sat1 and the extent of the powers      

exercised by juries in those courts4 ,i 
therefore give in a note extended       
extracts1 on these points1 from ,stuart 
on the ,constitution of ,england1 and   
from ,blackstone's ,commentaries4#ec    
,that all these courts were mere courts 
of conscience1 in which the juries were 
sole judges1 administering justice      
according to their own ideas of it1 is  
not only shown by the extracts already  
given1 but is explicitly acknowledged in
 the following one1 in which the modern 
courts of conscience are compared with  
the ancient hundred and county courts1  
and the preference given to the latter1 
on the ground that the duties of the    
jurors in the one case1 and of the      
commissioners in the other1 are the     
same1 and that the consciences of a jury
 are a safer and purer tribunal than the
 consciences of individuals specially   
appointed1 and holding permanent        
offices4     ,but there is one species  
of courts constituted by act of         
,parliament1    in the city of ,london1 

and other trading and populous          
districts1    which1 in their           
proceedings1 so vary from the course of 
the common    law1 that they deserve a  
more particular consideration4 ,i mean  
the    court of requests1 or courts of  
conscience1 for the recovery of    small
 debts4 ,the first of these was         
established in ,london so early as      
the reign of ,henry ,,viii41 by an act  
of their common council2 which1         
however1 was certainly insufficient for 
that purpose1 and illegal1    till      
confirmed by statute #c ,jac4 ,i41 ch4  
#ae1 which has since been    explained  
and amended by statute #ad ,geo4 ,,ii41 
ch4 #aj4 ,the    constitution is this3  
two aldermen and four commoners sit     
twice a    week to hear all causes of   
debt not exceeding the value of forty   
shillings2 which they examine in a      
summary way1 by the oath of the         
parties or other witnesses1 and make    
such order therein as is    consonant to
 equity and good conscience499 99       

,divers trading towns and    other      
districts have obtained acts of         
,parliament1 for establishing    in them
 courts of conscience upon nearly the   
same plan as that in    the city of     
,london4     ,the anxious desire that   
has been shown to obtain these several  
acts1    proves clearly that the nation1
 in general1 is truly sensible of the   
great inconvenience arising from the    
disuse of the ancient county and        
hundred courts1 wherein causes of this  
small value were always    formerly     
decided with very little trouble and    
expense to the parties4    ,but it is to
 be feared that the general remedy1     
which of late hath    been principally  
applied to this inconvenience1 7the     
erecting these    new jurisdictions17   
may itself be attended in time with very
 ill    consequences2 as the method of  
proceeding therein is entirely in       
derogation of the common law2 and their 
large discretionary powers    create a  
petty tyranny in a set of standing      

commissioners2 and as the    disuse of  
the trial by jury may tend to estrange  
the minds of the    people from that    
valuable prerogative of ,englishmen1    
which has    already been more than     
sufficiently excluded in many instances4
 ,how    much rather is it to be wished 
that the proceedings in the county and  
hundred courts could be again revived1  
without burdening the    freeholders    
with too frequent and tedious           
attendances2 and at the    same time    
removing the delays that have insensibly
 crept into their    proceedings1 and   
the power that either party has of      
transferring at    pleasure their suits 
to the courts at ,westminster6 ,and we  
may1 with    satisfaction1 observe1 that
 this experiment has been actually      
tried1    and has succeeded in the      
populous county of ,middlesex1 which    
might    serve as an example for others4
 ,for by statute #bc ,geo4 ,,ii41 ch4   
#cc1    it is enacted3     #a4 ,that a  
special county court shall be held at   

least once in a    month1 in every      
hundred of the county of ,middlesex1 by 
the county    clerk4     #b4 ,that      
twelve freeholders of that hundred1     
qualified to serve on    juries1 and    
struck by the sheriff1 shall be summoned
 to appear at    such court by rotation2
 so as none shall be summoned oftener   
than    once a year4     #c4 ,that in   
all causes not exceeding the value of   
forty shillings1    the county clerk and
 twelve suitors 7jurors7 shall proceed  
in a    summary way1 examining the      
parties and witnesses on oath1 without  
the formal process anciently used2 and  
shall make such order therein    as they
 shall judge agreeable to               
conscience4--#c ,blackstone1    #ha-hc4 
,what are these but courts of           
conscience8 ,and yet ,blackstone tells  
us they are a revival of the ancient    
hundred and county courts4 ,and what    
does this fact prove1 but that the      
ancient common law courts1 in which     
juries sat1 were mere courts of         

conscience8  ,it is perfectly evident   
that in all these courts the jurors were
 the judges1 and determined all         
questions of law for themselves2 because
 the only alternative to that           
supposition is1 that the jurors took    
their law from sheriffs1 bailiffs1 and  
stewards1 of which there is not the     
least evidence in history1 nor the least
 probability in reason4 ,it is evident1 
also1 that they judged independently of 
the laws of the king1 for the reasons   
before given1 viz41 that the authority  
of the king was held in very little     
esteem2 and1 secondly1 that the laws of 
the king 7not being printed1 and the    
people being unable to read them if they
 had been printed7 must have been in a  
great measure unknown to them1 and could
 have been received by them only on the 
authority of the sheriff1 bailiff1 or   
steward4 ,if laws were to be received by
 them on the authority of these         
officers1 the latter would have imposed 
such laws upon the people as they       

pleased4  ,these courts1 that have now  
been described1 were continued in full  
power long after ,magna ,carta1 no      
alteration being made in them by that   
instrument1 nor in the mode of          
administering justice in them4  ,there  
is no evidence whatever1 so far as ,i am
 aware1 that the juries had any less    
power in the courts held by the king's  
justices1 than in those held by         
sheriffs1 bailiffs1 and stewards2 and   
there is no probability whatever that   
they had4 ,all the difference between   
the former courts and the latter        
undoubtedly was1 that1 in the former1   
the juries had the benefit of the advice
 and assistance of the justices1 which  
would1 of course1 be considered valuable
 in difficult cases1 on account of the  
justices being regarded as more learned1
 not only in the laws of the king1 but  
also in the common law1 or law of the   
land4  ,the conclusion1 therefore1 ,i   
think1 inevitably must be1 that neither 
the laws of the king1 nor the           

instructions of his justices1 had any   
authority over jurors beyond what the   
latter saw fit to accord to them4 ,and  
this view is confirmed by this remark of
 ,hallam1 the truth of which all will   
acknowledge3     ,the rules of legal    
decision1 among a rude people1 are      
always very    simple2 not serving much 
to guide1 far less to control the       
feelings    of natural equity4--#b      
,middle ,ages1 ch4 #h1 part #b1 p4 #dfe4
  ,it is evident that it was in this    
way1 by the free and concurrent         
judgments of juries1 approving and      
enforcing certain laws and rules of     
conduct1 corresponding to their notions 
of right and justice1 that the laws and 
customs1 which1 for the most part1 made 
up the common law1 and were called1 at  
that day1 the good laws1 and good       
customs1 and the law of the land1 were  
established4 ,how otherwise could they  
ever have become established1 as        
,blackstone says they were1 by long and 
immemorial usage1 and by their universal

 reception throughout the kingdom1#ed   
when1 as the ,mirror says1 justice was  
so done1 that every one so judged his   
neighbor1 by such judgment as a man     
could not elsewhere receive in the like 
cases1 until such times as the customs  
of the realm were put in writing and    
certainly published8  ,the fact that1 in
 that dark age1 so many of the          
principles of natural equity1 as those  
then embraced in the ,common ,law1      
should have been so uniformly recognized
 and enforced by juries1 as to have     
become established by general consent as
 the law of the land2 and the further   
fact that this law of the land was held 
so sacred that even the king could not  
lawfully infringe or alter it1 but was  
required to swear to maintain it1 are   
beautiful and impressive illustrations  
of the truth that men's minds1 even in  
the comparative infancy of other        
knowledge1 have clear and coincident    
ideas of the elementary principles1 and 
the paramount obligation1 of justice4   

,the same facts also prove that the     
common mind1 and the general1 or1       
perhaps1 rather1 the universal          
conscience1 as developed in the         
untrammelled judgments of juries1 may be
 safely relied upon for the preservation
 of individual rights in civil society2 
and that there is no necessity or excuse
 for that deluge of arbitrary           
legislation1 with which the present age 
is overwhelmed1 under the pretext that  
unless laws be made1 the law will not be
 known2 a pretext1 by the way1 almost   
universally used for overturning1       
instead of establishing1 the principles 
of justice4   ,,section ,,iii4  ,the    
,oaths of ,jurors4  ,the oaths that have
 been administered to jurors1 in        
,england1 and which are their legal     
guide to their duty1 all 7so far as ,i  
have ascertained them7 corroborate the  
idea that the jurors are to try all     
cases on their intrinsic merits1        
independently of any laws that they deem
 unjust or oppressive4 ,it is probable  

that an oath was never administered to a
 jury in ,england1 either in a civil or 
criminal case1 to try it according to   
law4  ,the earliest oath that ,i have   
found prescribed by law to be           
administered to jurors is in the laws of
 ,ethelred1 7about the year #ajae17     
which require that the jurors shall     
swear1 with their hands upon a holy     
thing1 that they will condemn no man    
that is innocent1 nor acquit any that is
 guilty4--#d ,blackstone1 #cjb4 #b      
,turner's ,history of the               
,anglo-,saxons1 #aee4 ,wilkins' ,laws of
 the ,anglo-,saxons1 #aag4 ,spelman's   
,glossary1 word ,jurata4  ,blackstone   
assumes that this was the oath of the   
grand jury 7#d ,blackstone1 #cjb72 but  
there was but one jury at the time this 
oath was ordained4 ,the institution of  
two juries1 grand and petit1 took place 
after the ,norman ,conquest4  ,hume1    
speaking of the administration of       
justice in the time of ,alfred1 says    
that1 in every hundred1     ,twelve     

freeholders were chosen1 who1 having    
sworn1 together with the    hundreder1  
or presiding magistrate of that         
division1 to administer    impartial    
justice1 proceeded to the examination of
 that cause which    was submitted to   
their jurisdiction4--,hume1 ch4 #b4  ,by
 a law of ,henry ,,ii41 in #aafd1 it was
 directed that the sheriff faciet jurare
 duodecim legales homines de vicineto   
seu de villa1 quod inde veritatem       
secundum conscientiam suam              
manifestabunt1 7shall make twelve legal 
men from the neighborhood to swear that 
they will make known the truth according
 to their conscience47--,crabbe's       
,history of the ,english ,law1 #aai4 #a 
,reeves1 #hg4 ,wilkins1 #cba-cbc4       
,glanville1 who wrote within the half   
century previous to ,magna ,carta1 says3
     ,each of the knights summoned for  
this purpose 7as jurors7 ought to       
swear that he will neither utter that   
which is false1 nor knowingly    conceal
 the truth4--,beames' ,glanville1 #fe4  

,reeve calls the trial by jury the trial
 by twelve men sworn to speak the       
truth4--#a ,reeve's ,history of the     
,english ,law1 #hg4  ,henry says that   
the jurors took a solemn oath1 that they
 would faithfully discharge the duties  
of their office1 and not suffer an      
innocent man to be condemned1 nor any   
guilty person to be acquitted4--#c      
,henry's ,hist4 of ,great ,britain1     
#cdf4  ,the ,mirror of ,justices1       
7written within a century after ,magna  
,carta17 in the chapter on the abuses of
 the ,common ,law1 says3     ,it is     
abuse to use the words1 to their        
knowledge1 in their oaths1    to make   
the jurors speak upon thoughts1 since   
the chief words of    their oaths be    
that they speak the truth4--p4 #bdi4    
,smith1 writing in the time of          
,elizabeth1 says that1 in civil suits1  
the jury be sworn to declare the truth  
of that issue according to the evidence1
 and their conscience4--,smith's        
,commonwealth of ,england1 edition of   

#afba1 p4 #gc4  ,in criminal trials1 he 
says3     ,the clerk giveth the juror an
 oath to go uprightly betwixt the       
prince and the prisoner4--,ditto1 p4    
#ij4ee  ,hale says3     ,then twelve1   
and no less1 of such as are indifferent 
and are    returned upon the principal  
panel1 or the tales1 are sworn to try   
the same according to the evidence4--#b 
,hale's ,history of the ,common    ,law1
 #ada4  ,it appears from ,blackstone    
that1 even at this day1 neither in civil
 nor criminal cases1 are jurors in      
,england sworn to try causes according  
to law4 ,he says that in civil suits the
 jury are     ,sworn well and truly to  
try the issue between the parties1 and a
    true verdict to give according to   
the evidence4--#c ,blackstone1    #cfe4 
,the issue to be tried is whether ,a    
owes ,b anything2 and if so1 how much8  
or whether ,a has in his possession     
anything that belongs to ,b2 or whether 
,a has wronged ,b1 and ought to make    
compensation2 and if so1 how much8  ,no 

statute passed by a legislature1 simply 
as a legislature1 can alter either of   
these issues in hardly any conceivable  
case1 perhaps in none4 ,no unjust law   
could ever alter them in any4 ,they are 
all mere questions of natural justice1  
which legislatures have no power to     
alter1 and with which they have no right
 to interfere1 further than to provide  
for having them settled by the most     
competent and impartial tribunal that it
 is practicable to have1 and then for   
having all just decisions enforced4 ,and
 any tribunal1 whether judge or jury1   
that attempts to try these issues1 has  
no more moral right to be swerved from  
the line of justice1 by the will of a   
legislature1 than by the will of any    
other body of men whatever4 ,and this   
oath does not require or permit a jury  
to be so swerved4  ,in criminal cases1  
,blackstone says the oath of the jury in
 ,england is3     ,well and truly to    
try1 and true deliverance make1 between 
our    sovereign lord1 the king1 and the

 prisoner whom they have in charge1     
and a true verdict to give according to 
the evidence4--#d    ,blackstone1 #cee4 
,the issue to be tried1 in a criminal   
case1 is guilty1 or not guilty4 ,the    
laws passed by a legislature can rarely1
 if ever1 have anything to do with this 
issue4 ,guilt is an intrinsic quality of
 actions1 and can neither be created1   
destroyed1 nor changed by legislation4  
,and no tribunal that attempts to try   
this issue can have any moral right to  
declare a man guilty1 for an act that is
 intrinsically innocent1 at the bidding 
of a legislature1 any more than at the  
bidding of anybody else4 ,and this oath 
does not require or permit a jury to do 
so4  ,the words1 according to the       
evidence1 have doubtless been introduced
 into the above oaths in modern times4  
,they are unquestionably in violation of
 the ,common ,law1 and of ,magna ,carta1
 if by them be meant such evidence only 
as the government sees fit to allow to  
go to the jury4 ,if the government can  

dictate the evidence1 and require the   
jury to decide according to that        
evidence1 it necessarily dictates the   
conclusion to which they must arrive4   
,in that case the trial is really a     
trial by the government1 and not by the 
jury4 ,the jury cannot try an issue1    
unless they determine what evidence     
shall be admitted4 ,the ancient oaths1  
it will be observed1 say nothing about  
according to the evidence4 ,they        
obviously take it for granted that the  
jury try the whole case2 and of course  
that they decide what evidence shall be 
admitted4 ,it would be intrinsically an 
immoral and criminal act for a jury to  
declare a man guilty1 or to declare that
 one man owed money to another1 unless  
all the evidence were admitted1 which   
they thought ought to be admitted1 for  
ascertaining the truth4#ef  ,grand      
,jury4--,if jurors are bound to enforce 
all laws passed by the legislature1 it  
is a very remarkable fact that the oath 
of grand juries does not require them to

 be governed by the laws in finding     
indictments4 ,there have been various   
forms of oath administered to grand     
jurors2 but by none of them that ,i     
recollect ever to have seen1 except     
those of the ,states of ,connecticut and
 ,vermont1 are they sworn to present men
 according to law4 ,the ,english form1  
as given in the essay on ,grand ,juries1
 written near two hundred years ago1 and
 supposed to have been written by ,lord 
,somers1 is as follows3     ,you shall  
diligently inquire1 and true presentment
 make1 of all such    articles1 matters1
 and things1 as shall be given you in   
charge1 and    of all other matters and 
things as shall come to your knowledge  
touching this present service4 ,the     
king's council1 your fellows1 and       
your own1 you shall keep secret4 ,you   
shall present no person for    hatred or
 malice2 neither shall you leave any one
 unpresented for    favor1 or affection1
 for love or gain1 or any hopes thereof2
 but in    all things you shall present 

the truth1 the whole truth1 and nothing 
but the truth1 to the best of your      
knowledge4 ,so help you ,god4  ,this    
form of oath is doubtless quite ancient1
 for the essay says our ancestors       
appointed it4--,see ,essay1 p4 #cc-cd4  
,on the obligations of this oath1 the   
essay says3     ,if it be asked how1 or 
in what manner1 the 7grand7 juries shall
    inquire1 the answer is ready1       
according to the best of their          
understandings4 ,they only1 not the     
judges1 are sworn to search             
diligently to find out all treasons1 c41
 within their charge1 and    they must  
and ought to use their own discretion in
 the way and manner    of their inquiry4
 ,no directions can legally be imposed  
upon them by    any court or judges2 an 
honest jury will thankfully accept good 
advice from judges1 as their assistants2
 but they are bound by their    oaths to
 present the truth1 the whole truth1 and
 nothing but the    truth1 to the best  
of their own1 not the judge's1          

knowledge4 ,neither    can they1 without
 breach of that oath1 resign their      
consciences1 or    blindly submit to the
 dictates of others2 and therefore ought
 to    receive or reject such advices1  
as they judge them good or bad4 99 99   
,nothing can be more plain and express  
than the words of the oath are    to    
this purpose4 ,the jurors need not      
search the law books1 nor tumble    over
 heaps of old records1 for the          
explanation of them4 ,our greatest      
lawyers may from hence learn more       
certainly our ancient law in this       
case1 than from all the books in their  
studies4 ,the language wherein    the   
oath is penned is known and understood  
by every man1 and the    words in it    
have the same signification as they have
 wheresoever else    they are used4 ,the
 judges1 without assuming to themselves 
a    legislative power1 cannot put a new
 sense upon them1 other than            
according to their genuine1 common      
meaning4 ,they cannot magisterially     

impose their opinions upon the jury1 and
 make them forsake the direct    words  
of their oath1 to pursue their glosses4 
,the grand inquest are    bound to      
observe alike strictly every part of    
their oath1 and to use    all just and  
proper ways which may enable them to    
perform it2    otherwise it were to say1
 that after men had sworn to inquire    
diligently after the truth1 according to
 the best of their knowledge1    they   
were bound to forsake all the natural   
and proper means which    their         
understandings suggest for the discovery
 of it1 if it be    commanded by the    
judges4--,lord ,somers' ,essay on ,grand
 ,juries1 p4    #ch4  ,what is here said
 so plainly and forcibly of the oath and
 obligations of grand juries1 is equally
 applicable to the oath and obligations 
of petit juries4 ,in both cases the     
simple oaths of the jurors1 and not the 
instructions of the judges1 nor the     
statutes of kings nor legislatures1 are 
their legal guides to their duties4#eg  

,,section ,,iv4  ,the ,right of ,juries 
to fix the ,sentence4  ,the nature of   
the common law courts existing prior to 
,magna ,carta1 such as the county       
courts1 the hundred courts1 the         
court-leet1 and the court-baron1 all    
prove1 what has already been proved from
 ,magna ,carta1 that1 in jury trials1   
the juries fixed the sentence2 because1 
in those courts1 there was no one but   
the jury who could fix it1 unless it    
were the sheriff1 bailiff1 or steward2  
and no one will pretend that it was     
fixed by them4 ,the juries              
unquestionably gave the judgment in both
 civil and criminal cases4  ,that the   
juries were to fix the sentence under   
,magna ,carta1 is also shown by statutes
 subsequent to ,magna ,carta4  ,a       
statute passed fifty-one years after    
,magna ,carta1 says that a baker1 for   
default in the weight of his bread1     
debeat amerciari vel subire judicium    
pillor1--that is1 ought to be amerced1  
or suffer the sentence of the pillory4  

,and that a brewer1 for selling ale1    
contrary to the assize1 debeat          
amerciari1 vel pati judicium tumbrelli2 
that is1 ought to be amerced1 or suffer 
judgment of the tumbrel4--#ea ,henry    
,,iii41 st4 #f4 7#abff47  ,if the king  
7the legislative power7 had had         
authority to fix the punishments of     
these offences imperatively1 he would   
naturally have said these offenders     
shall be amerced1 and shall suffer      
judgment of the pillory and tumbrel1    
instead of thus simply expressing the   
opinion that they ought to be punished  
in that manner4  ,the statute of        
,westminster1 passed sixty years after  
,magna ,carta1 provides that1     ,no   
city1 borough1 nor town1 nor any man1 be
 amerced1 without    reasonable cause1  
and according to the quantity of the    
trespass2 that    is to say1 every      
freeman saving his freehold1 a merchant 
saving his    merchandise1 a villein his
 waynage1 and that by his or their      
peers4--#c ,edward ,i41 ch4 #f4 7#abge47

  ,the same statute 7ch4 #ah7 provides  
further1 that1     ,forasmuch as the    
common fine and amercement of the whole 
county in    ,eyre of the justices for  
false judgments1 or for other trespass1 
is    unjustly assessed by sheriffs and 
baretors in the shires1 so that the     
sum is many times increased1 and the    
parcels otherwise assessed than    they 
ought to be1 to the damage of the       
people1 which be many times    paid to  
the sheriffs and baretors1 which do not 
acquit the payers2 it    is provided1   
and the king wills1 that from henceforth
 such sums shall    be assessed before  
the justices in ,eyre1 afore their      
departure1 by    the oath of knights and
 other honest men1 upon all such as     
ought to    pay2 and the justices shall 
cause the parcels to be put into their  
estreats1 which shall be delivered up   
unto the exchequer1 and not the    whole
 sum4--,st4 #c ,edward ,i41 ch4 #ah1    
7#abge47eh  ,the following statute1     
passed in #acda1 one hundred and        

twenty-five years after ,magna ,carta1  
providing for the trial of peers of the 
realm1 and the king's ministers1        
contains a recognition of the principle 
of ,magna ,carta1 that the jury are to  
fix the sentence4     ,whereas before   
this time the peers of the land have    
been arrested    and imprisoned1 and    
their temporalities1 lands1 and         
tenements1 goods    and cattels1        
asseized in the king's hands1 and some  
put to death    without judgment of     
their peers3 ,it is accorded and        
assented1 that no    peer of the land1  
officer1 nor other1 because of his      
office1 nor of    things touching his   
office1 nor by other cause1 shall be    
brought in    judgment to lose his      
temporalities1 lands1 tenements1 goods  
and    cattels1 nor to be arrested1 nor 
imprisoned1 outlawed1 exiled1 nor       
forejudged1 nor put to answer1 nor be   
judged1 but by award    7sentence7 of   
the said peers in ,parliament4--#ae     
,edward ,,iii41 st4    #a1 sec4 #b4     

,section #d1 of the same statute        
provides1     ,that in every            
,parliament1 at the third day of every  
,parliament1 the    king shall take in  
his hands the offices of all the        
ministers    aforesaid1 7that is1 the   
chancellor1 treasurer1 barons1 and      
chancellor of the exchequer1 the        
justices of the one bench and of the    
other1 justices assigned in the country1
 steward and chamberlain of    the      
king's house1 keeper of the privy seal1 
treasurer of the    wardrobe1           
controllers1 and they that be chief     
deputed to abide nigh    the king's son1
 ,duke of ,cornwall17 and so they shall 
abide four or    five days2 except the  
offices of justices of the one place or 
the    other1 justices assigned1 barons 
of exchequer2 so always that they    and
 all other ministers be put to answer to
 every complaint2 and if    default be  
found in any of the said ministers1 by  
complaint or other    manner1 and of    
that attainted in ,parliament1 he shall 

be punished by    judgment of the peers1
 and put out of his office1 and another 
convenient put in his place4 ,and upon  
the same our said sovereign    lord the 
king shall do 7cause7 to be pronounced  
and made execution    without delay1    
according to the judgment 7sentence7 of 
the said    peers in the ,parliament4   
,here is an admission that the peers    
were to fix the sentence1 or judgment1  
and the king promises to make execution 
according to that sentence4  ,and this  
appears to be the law1 under which peers
 of the realm and the great officers of 
the crown were tried and sentenced1 for 
four hundred years after its passage1   
and1 for aught ,i know1 until this day4 
,the first case given in ,hargrave's    
collection of ,english ,state ,trials1  
is that of ,alexander ,nevil1           
,archbishop of ,york1 ,robert ,vere1    
,duke of ,ireland1 ,michael de la ,pole1
 ,earl of ,suffolk1 and ,robert         
,tresilian1 ,lord ,chief ,justice of    
,england1 with several others1 convicted

 of treason1 before the ,lords of       
,parliament1 in #achh4 ,the sentences in
 these cases were adjudged by the ,lords
 of ,parliament1 in the following terms1
 as they are reported4     ,wherefore   
the said ,lords of ,parliament1 there   
present1 as judges    in ,parliament1 in
 this case1 by assent of the king1      
pronounced their    sentence1 and did   
adjudge the said archbishop1 duke1 and  
earl1 with    ,robert ,tresilian1 so    
appealed1 as aforesaid1 to be guilty1   
and    convicted of treason1 and to be  
drawn and hanged1 as traitors and       
enemies to the king and kingdom2 and    
that their heirs should be              
disinherited forever1 and their lands   
and tenements1 goods and    chattels1   
forfeited to the king1 and that the     
temporalities of the    ,archbishop of  
,york should be taken into the king's   
hands4     ,also1 in the same case1 ,sir
 ,john ,holt1 ,sir ,william ,burgh1 ,sir
    ,john ,cary1 ,sir ,roger ,fulthorpe1
 and ,john ,locton1 were by the    lords

 temporal1 by the assent of the king1   
adjudged to be drawn and    hanged1 as  
traitors1 their heirs disinherited1 and 
their lands and    tenements1 goods and 
chattels1 to be forfeited to the king4  
,also1 in the same case1 ,john ,blake1  
of council for the king1 and    ,thomas 
,uske1 under sheriff of ,middlesex1     
having been convicted of    treason1    
,the lords awarded1 by assent of the    
king1 that they should both be    hanged
 and drawn as traitors1 as open enemies 
to the king and    kingdom1 and their   
heirs disinherited forever1 and their   
lands and    tenements1 goods and       
chattels1 forfeited to the king4        
,also1 ,simon ,burleigh1 the king's     
chamberlain1 being convicted of         
treason1 by joint consent of the king   
and the lords1 sentence was             
pronounced against the said ,simon      
,burleigh1 that he should be drawn      
from the town to ,tyburn1 and there be  
hanged till he be dead1 and    then have
 his head struck from his body4         

,also1 ,john ,beauchamp1 steward of the 
household to the king1 ,james           
,beroverse1 and ,john ,salisbury1       
knights1 gentlemen of the privy         
chamber1 were in like manner            
condemned4--#a ,hargrave's ,state       
,trials1 first case4  ,here the         
sentences were all fixed by the peers1  
with the assent of the king4 ,but that  
the king should be consulted1 and his   
assent obtained to the sentence         
pronounced by the peers1 does not imply 
any deficiency of power on their part to
 fix the sentence independently of the  
king4 ,there are obvious reasons why    
they might choose to consult the king1  
and obtain his approbation of the       
sentence they were about to impose1     
without supposing any legal necessity   
for their so doing4  ,so far as we can  
gather from the reports of state trials1
 peers of the realm were usually        
sentenced by those who tried them1 with 
the assent of the king4 ,but in some    
instances no mention is made of the     

assent of the king1 as in the case of   
,lionel1 ,earl of ,middlesex1 ,lord     
,high ,treasurer of ,england1 in #afbd1 
7four hundred years after ,magna        
,carta17 where the sentence was as      
follows3     ,this ,high ,court of      
,parliament doth adjudge1 that ,lionel1 
,earl of    ,middlesex1 now ,lord       
,treasurer of ,england1 shall lose all  
his offices    which he holds in this   
kingdom1 and shall1 hereafter1 be made  
incapable of any office1 place1 or      
employment in the state and             
commonwealth4 ,that he shall be         
imprisoned in the tower of ,london1     
during the king's pleasure4 ,that he    
shall pay unto our sovereign lord    the
 king a fine of #ej1jjj pounds4 ,that he
 shall never sit in    ,parliament any  
more1 and that he shall never come      
within the verge of    the court4--#b   
,howell's ,state ,trials1 #abej4  ,here 
was a peer of the realm1 and a minister 
of the king1 of the highest grade2 and  
if it were ever necessary to obtain the 

assent of the king to sentences         
pronounced by the peers1 it would       
unquestionably have been obtained in    
this instance1 and his assent would have
 appeared in the sentence4  ,lord ,bacon
 was sentenced by the ,house of ,lords1 
7#afbj17 no mention being made of the   
assent of the king4 ,the sentence is in 
these words3     ,and1 therefore1 this  
,high ,court doth adjudge1 ,that the    
,lord ,viscount    ,st4 ,albans1 ,lord  
,chancellor of ,england1 shall undergo  
fine and ransom    of #dj1jjj pounds4   
,that he shall be imprisoned in the     
tower during the    king's pleasure4    
,that he shall forever be incapable of  
any office1    place1 or employment in  
the state or commonwealth4 ,that he     
shall    never sit in ,parliament1 nor  
come within the verge of the court4     
,and when it was demanded of him1 before
 sentence1 whether it were his hand that
 was subscribed to his confession1 and  
whether he would stand to it2 he made   
the following answer1 which implies that

 the lords were the ones to determine   
his sentence4     ,my lords1 it is my   
act1 my hand1 my heart4 ,i beseech your 
lordships    to be merciful to a broken 
reed4--#a ,hargrave's ,state ,trials1   
#chf-g4  ,the sentence against ,charles 
the ,first1 7#afdh17 after reciting the 
grounds of his condemnation1 concludes  
in this form3     ,for all which        
treasons and crimes1 this court doth    
adjudge1 that    he1 the said ,charles  
,stuart1 as a tyrant1 traitor1 murderer1
 and    public enemy to the good people 
of this nation1 shall be put to death   
by the severing his head from his body4 
,the report then adds3     ,this        
sentence being read1 the president 7of  
the court7 spake as    followeth3 ',this
 sentence now read and published1 is the
 act1    sentence1 judgment and         
resolution of the whole court4'--#a     
,hargrave's ,state ,trials1 #ajcg4      
,unless it had been the received law of 
the land that those who tried a man     
should fix his sentence1 it would have  

required an act of ,parliament to fix   
the sentence of ,charles1 and his       
sentence would have been declared to be 
the sentence of the law1 instead of the 
act1 sentence1 judgment1 and resolution 
of the court4  ,but the report of the   
proceedings in the trial of ,thomas1    
,earl of ,macclesfield1 ,lord ,high     
,chancellor of ,great ,britain1 before  
the ,house of ,lords1 for high crimes   
and misdemeanors in the execution of his
 office1 in #agbe1 is so full on this   
point1 and shows so clearly that it     
rested wholly with the lords to fix the 
sentence1 and that the assent of the    
king was wholly unnecessary1 that ,i    
give the report somewhat at length4     
,after being found guilty1 the earl     
addressed the lords1 for a mitigation of
 sentence1 as follows3     ',i am now to
 expect your lordships' judgment2 and ,i
 hope that you    will be pleased to    
consider that ,i have suffered no small 
matter    already in the trial1 in the  
expense ,i have been at1 the fatigue1   

and    what ,i have suffered otherways4 
99 99 ,i have paid back #aj1hjj pounds  
of    the money already2 ,i have lost my
 office2 ,i have undergone the          
censure of both houses of ,parliament1  
which is in itself a severe             
punishment1' c41 c4  ,on being          
interrupted1 he proceeded3     ',my     
lords1 ,i submit whether this be not    
proper in mitigation of    your         
lordships' sentence2 but whether it be  
or not1 ,i leave myself    to your      
lordships' justice and mercy2 ,i am sure
 neither of them will    be wanting1 and
 ,i entirely submit4' 99 99     ,then   
the said earl1 as also the managers1    
were directed to withdraw2    and the   
,house 7of ,lords7 ordered ,thomas1     
,earl of ,macclesfield1 to be           
committed to the custody of the         
gentleman usher of the black rod2 and   
then proceeded to the consideration of  
what judgment1 7that is1    sentence1   
for he had already been found guilty17  
to give upon    the impeachment against 

the said earl4 99 99     ,the next day1 
the ,commons1 with their speaker1 being 
present at the    bar of the ,house 7of 
,lords71 99 99 the speaker of the ,house
 of ,commons    said as follows3        
',my ,lords1 the knights1 citizens1 and 
burgesses in ,parliament    assembled1  
in the name of themselves1 and of all   
the commons of ,great    ,britain1 did  
at this bar impeach ,thomas1 ,earl of   
,macclesfield1 of    high crimes and    
misdemeanors1 and did exhibit articles  
of impeachment    against him1 and have 
made good their charge4 ,i do1          
therefore1 in the    name of the        
knights1 citizens1 and burgesses1 in    
,parliament    assembled1 and of all the
 commons of ,great ,britain1 demand     
judgment    7sentence7 of your lordships
 against ,thomas1 ,earl of              
,macclesfield1    for the said high     
crimes and misdemeanors4'     ,then the 
,lord ,chief ,justice ,king1 ,speaker of
 the ,house of ,lords1    said3 ',mr4   
,speaker1 the ,lords are now ready to   

proceed to judgment in    the case by   
you mentioned4     ',thomas1 ,earl of   
,macclesfield1 the ,lords have          
unanimously found you    guilty of high 
crimes and misdemeanors1 charged on you 
by the    impeachment of the ,house of  
,commons1 and do now1 according to law1 
proceed to judgment against you1 which  
,i am ordered to pronounce4    ,their   
lordships' judgment is1 and this high   
court doth adjudge1    that you1        
,thomas1 ,earl of ,macclesfield1 be     
fined in the sum of thirty    thousand  
pounds unto our sovereign lord the king2
 and that you shall    be imprisoned in 
the tower of ,london1 and there kept in 
safe custody1    until you shall pay the
 said fine4'--#f ,hargrave's ,state     
,trials1    #gfb-c-d4  ,this case shows 
that the principle of ,magna ,carta1    
that a man should be sentenced only by  
his peers1 was in force1 and acted upon 
as law1 in ,england1 so lately as #agbe1
 7five hundred years after ,magna       
,carta17 so far as it applied to a peer 

of the realm4  ,but the same principle1 
on this point1 that applies to a peer of
 the realm1 applies to every freeman4   
,the only difference between the two is1
 that the peers of the realm have had   
influence enough to preserve their      
constitutional rights2 while the        
constitutional rights of the people have
 been trampled upon and rendered        
obsolete by the usurpation and          
corruption of the government and the    
courts4   ,,section ,v4  ,the ,oaths of 
,judges4  ,as further proof that the    
legislation of the king1 whether enacted
 with or without the assent and advice  
of his parliaments1 was of no authority 
unless it were consistent with the      
common law1 and unless juries and judges
 saw fit to enforce it1 it may be       
mentioned that it is probable that no   
judge in ,england was ever sworn to     
observe the laws enacted either by the  
king alone1 or by the king with the     
advice and assent of parliament4  ,the  
judges were sworn to do equal law1 and  

execution of right1 to all the king's   
subjects1 rich and poor1 without having 
regard to any person2 and that they will
 deny no man common right2#ei but they  
were not sworn to obey or execute any   
statutes of the king1 or of the king and
 parliament4 ,indeed1 they are virtually
 sworn not to obey any statutes that are
 against common right1 or contrary to   
the common law1 or law of the land2 but 
to certify the king thereof--that is1   
notify him that his statutes are against
 the common law2--and then proceed to   
execute the common law1 notwithstanding 
such legislation to the contrary4 ,the  
words of the oath on this point are     
these3     ,that ye deny no man common  
right by 7virtue of7 the king's letters1
    nor none other man's1 nor for none  
other cause2 and in case any    letters 
come to you contrary to the law1 7that  
is1 the common law1    as will be seen  
on reference to the entire oath given in
 the note17    that ye do nothing by    
such letters1 but certify the king      

thereof    and proceed to execute the   
law1 7that is1 the common law17         
notwithstanding the same letters4  ,when
 it is considered that the king was the 
sole legislative power1 and that he     
exercised this power1 to a great extent1
 by orders in council1 and by writs and 
letters addressed often-times to some   
sheriff1 or other person1 and that his  
commands1 when communicated to his      
justices1 or any other person1 by       
letters1 or writs1 under seal1 had as   
much legal authority as laws promulgated
 in any other form whatever1 it will be 
seen that this oath of the justices     
absolutely required that they disregard 
any legislation that was contrary to    
common right1 or the common law1 and    
notify the king that it was contrary to 
common right1 or the common law1 and    
then proceed to execute the common law1 
notwithstanding such legislation4#fj    
,if there could be any doubt that such  
was the meaning of this oath1 that doubt
 would be removed by a statute passed by

 the king two years afterwards1 which   
fully explains this oath1 as follows3   
,edward1 by the ,grace of ,god1 c41 to  
the ,sheriff of ,stafford1    greeting3 
,because that by divers complaints made 
to us1 we have    perceived that the    
,law of the ,land1 which we by our oath 
are bound    to maintain1 is the less   
well kept1 and the execution of the same
    disturbed many times by maintenance 
and procurement1 as well in the    court
 as in the country2 we greatly moved of 
conscience in this    matter1 and for   
this cause desiring as much for the     
pleasure of ,god1    and ease and       
quietness of our subjects1 as to save   
our conscience1    and for to save and  
keep our said oath1 by the assent of the
 great    men and other wise men of our 
council1 we have ordained these things  
following3     ,first1 we have commanded
 all our justices1 that they shall from 
henceforth do equal law and execution of
 right to all our subjects1    rich and 
poor1 without having regard to any      

person1 and without    omitting to do   
right for any letters or commandment    
which may come to    them from us1 or   
from any other1 or by any other cause4  
,and if that    any letters1 writs1 or  
commandments come to the justices1 or to
 other    deputed to do law and right   
according to the usage of the realm1 in 
disturbance of the law1 or of the       
execution of the same1 or of right    to
 the parties1 the justices and other    
aforesaid shall proceed and    hold     
their courts and processes1 where the   
pleas and matters be    depending before
 them1 as if no such letters1 writs1 or 
commandments    were come to them2 and  
they shall certify us and our council of
 such    commandments which be contrary 
to the law1 7that is1 the law of the    
land1 or common law17 as afore is       
said4#fa ,and to the intent that    our 
justices shall do even right to all     
people in the manner    aforesaid1      
without more favor showing to one than  
to another1 we have    ordained and     

caused our said justices to be sworn1   
that they shall    not from henceforth1 
as long as they shall be in the office  
of    justice1 take fee nor robe of any 
man1 but of ourself1 and that they      
shall take no gift nor reward by        
themselves1 nor by other1 privily    nor
 apertly1 of any man that hath to do    
before them by any way1    except meat  
and drink1 and that of small value2 and 
that they shall    give no counsel to   
great men or small1 in case where we be 
party1 or    which do or may touch us in
 any point1 upon pain to be at our will1
    body1 lands1 and goods1 to do       
thereof as shall please us1 in case     
they do contrary4 ,and for this cause we
 have increased the fees of    the same1
 our justices1 in such manner as it     
ought reasonably to    suffice          
them4--#bj ,edward ,,iii41 ch4 #a4      
7#acdf47  ,other statutes of similar    
tenor have been enacted1 as follows3    
,it is accorded and established1 that it
 shall not be commanded by    the great 

seal1 nor the little seal1 to disturb or
 delay common    right2 and though such 
commandments do come1 the justices shall
 not    therefore leave 7omit7 to do    
right in any point4--,st4 #b ,edward    
,,iii41 ch4 #h4 7#acbh47     ,that by   
commandment of the great seal1 or privy 
seal1 no point of    this statute shall 
be put in delay2 nor that the justices  
of    whatsoever place it be shall let  
7omit7 to do the common law1 by         
commandment1 which shall come to them   
under the great seal1 or the    privy   
seal4--#ad ,edward ,,iii41 st4 #a1 ch4  
#ad4 7#acdj47     ,it is ordained and   
established1 that neither letters of the
 signet1    nor of the king's privy     
seal1 shall be from henceforth sent in  
damage    or prejudice of the realm1 nor
 in disturbance of the law 7the common  
law74--#aa ,richard ,,ii41 ch4 #aj4     
7#achg47  ,it is perfectly apparent from
 these statutes1 and from the oath      
administered to the justices1 that it   
was a matter freely confessed by the    

king himself1 that his statutes were of 
no validity1 if contrary to the common  
law1 or common right4  ,the oath of the 
justices1 before given1 is1 ,i presume1 
the same that has been administered to  
judges in ,england from the day when it 
was first prescribed to them1 7#acdd17  
until now4 ,i do not find from the      
,english statutes that the oath has ever
 been changed4 ,the ,essay on ,grand    
,juries1 before referred to1 and        
supposed to have been written by ,lord  
,somers1 mentions this oath 7page #gc7  
as being still administered to judges1  
that is1 in the time of ,charles ,,ii41 
more than three hundred years after the 
oath was first ordained4 ,if the oath   
has never been changed1 it follows that 
judges have not only never been sworn to
 support any statutes whatever of the   
king1 or of parliament1 but that1 for   
five hundred years past1 they actually  
have been sworn to treat as invalid all 
statutes that were contrary to the      
common law4   ,,section ,,vi4  ,the     

,coronation ,oath4  ,that the           
legislation of the king was of no       
authority over a jury1 is further proved
 by the oath taken by the kings at their
 coronation4 ,this oath seems to have   
been substantially the same1 from the   
time of the ,saxon kings1 down to the   
seventeenth century1 as will be seen    
from the authorities hereafter given4   
,the purport of the oath is1 that the   
king swears to maintain the law of the  
land--that is1 the common law4 ,in other
 words1 he swears to concede and        
preserve to the ,english people the laws
 and customs conceded to them by the    
ancient1 just1 and pious ,english kings1
 99 99 and especially the laws1 customs1
 and liberties conceded to the clergy   
and people by the illustrious king      
,edward2 99 99 and the just laws and    
customs which the common people have    
chosen1 7quas vulgus elegit74  ,these   
are the same laws and customs which were
 called by the general name of the law  
of the land1 or the common law1 and1    

with some slight additions1 were        
embodied in ,magna ,carta4  ,this oath  
not only forbids the king to enact any  
statutes contrary to the common law1 but
 it proves that his statutes could be of
 no authority over the consciences of a 
jury2 since1 as has already been        
sufficiently shown1 it was one part of  
this very common law itself1--that is1  
of the ancient laws1 customs1 and       
liberties1 mentioned in the oath1--that 
juries should judge of all questions    
that came before them1 according to     
their own consciences1 independently of 
the legislation of the king4  ,it was   
impossible that this right of the jury  
could subsist consistently with any     
right1 on the part of the king1 to      
impose any authoritative legislation    
upon them4 ,his oath1 therefore1 to     
maintain the law of the land1 or the    
ancient laws1 customs1 and liberties1   
was equivalent to an oath that he would 
never assume to impose laws upon juries1
 as imperative rules of decision1 or    

take from them the right to try all     
cases according to their own            
consciences4 ,it is also an admission   
that he had no constitutional power to  
do so1 if he should ever desire it4     
,this oath1 then1 is conclusive proof   
that his legislation was of no authority
 with a jury1 and that they were under  
no obligation whatever to enforce it1   
unless it coincided with their own ideas
 of justice4  ,the ancient coronation   
oath is printed with the ,statutes of   
the ,realm1 vol4 i41 p4 #afh1 and is as 
follows3#fb  ,,translation4     ,form of
 the ,oath of the ,king of ,england1 on 
his ,coronation4     7,the ,archbishop  
of ,canterbury1 to whom1 of right and   
custom of the    ,church of ,canterbury1
 ancient and approved1 it pertains to   
anoint and    crown the kings of        
,england1 on the day of the coronation  
of the king1    and before the king is  
crowned1 shall propound the underwritten
    questions to the king47     ,the    
laws and customs1 conceded to the       

,english people by the ancient1    just1
 and pious ,english kings1 will you     
concede and preserve to the    same     
people1 with the confirmation of an     
oath8 and especially the    laws1       
customs1 and liberties conceded to the  
clergy and people by the    illustrious 
king ,edward8     7,and the king shall  
answer17 ,i do concede1 and will        
preserve them1    and confirm them by my
 oath4     ,will you preserve to the    
church of ,god1 the clergy1 and the     
people1    entire peace and harmony in  
,god1 according to your powers8         
7,and the king shall answer17 ,i will4  
,in all your judgments1 will you cause  
equal and right justice and             
discretion to be done1 in mercy and     
truth1 according to your powers8        
7,and the king shall answer17 ,i will4  
,do you concede that the just laws and  
customs1 which the common    people have
 chosen1 shall be preserved2 and do you 
promise that they    shall be protected 
by you1 and strengthened to the honor of

 ,god1    according to your powers8     
7,and the king shall answer17 ,i concede
 and promise4  ,the language used in the
 last of these questions1 ,do you       
concede that the just laws and customs1 
which the common people have chosen1    
7quas vulgus elegit17 shall be          
preserved8 c41 is worthy of especial    
notice1 as showing that the laws1 which 
were to be preserved1 were not          
necessarily all the laws which the kings
 enacted1 but only such of them as the  
common people had selected or approved4 
,and how had the common people made     
known their approbation or selection of 
these laws8 ,plainly1 in no other way   
than this--that the juries composed of  
the common people had voluntarily       
enforced them4 ,the common people had no
 other legal form of making known their 
approbation of particular laws4  ,the   
word concede1 too1 is an important word4
 ,in the ,english statutes it is usually
 translated grant--as if with an        
intention to indicate that the laws1    

customs1 and liberties of the ,english  
people were mere privileges1 granted to 
them by the king2 whereas it should be  
translated concede1 to indicate simply  
an acknowledgment1 on the part of the   
king1 that such were the laws1 customs1 
and liberties1 which had been chosen and
 established by the people themselves1  
and of right belonged to them1 and which
 he was bound to respect4  ,i will now  
give some authorities to show that the  
foregoing oath has1 in substance1 been  
the coronation oath from the times of   
,william the ,conqueror1 7#ajff17 down  
to the time of ,james the ,first1 and   
probably until #afhh4  ,it will be      
noticed1 in the quotation from ,kelham1 
that he says this oath 7or the oath of  
,william the ,conqueror7 is in sense and
 substance the very same with that which
 the ,saxon kings used to take at their 
coronations4  ,hale says3     ,yet the  
,english were very zealous for them1    
7that is1 for the laws    of ,edward the
 ,confessor17 no less or otherwise than 

they are at this    time for the ,great 
,charter2 insomuch that they were never 
satisfied    till the said laws were    
renforced1 and mingled1 for the most    
part1    with the coronation oath of    
king ,william ,i41 and some of his      
successors4--#a ,hale's ,history of     
,common ,law1 #aeg4     ,also1 ,william1
 on his coronation1 had sworn to govern 
by the laws of    ,edward the           
,confessor1 some of which had been      
reduced into writing1    but the greater
 part consisted of the immemorial       
customs of the    realm4--,ditto1 p4    
#bjb1 note ,l4  ,kelham says3     ,thus 
stood the laws of ,england at the entry 
of ,william ,i41 and it    seems plain  
that the laws1 commonly called the laws 
of ,edward the    ,confessor1 were at   
that time the standing laws of the      
kingdom1 and    considered the great    
rule of their rights and liberties2 and 
that the    ,english were so zealous for
 them1 'that they were never satisfied  
till the said laws were renforced1 and  

mingled1 for the most part1    with the 
coronation oath4' ,accordingly1 we find 
that this great    conqueror1 at his    
coronation on the ,christmas day        
succeeding his    victory1 took an oath 
at the altar of ,st4 ,peter1            
,westminster1 in    sense and substance 
the very same with that which the ,saxon
 kings    used to take at their         
coronations4 99 99 ,and at              
,barkhamstead1 in the    fourth year of 
his reign1 in the presence of ,lanfranc1
 ,archbishop of    ,canterbury1 for the 
quieting of the people1 he swore that he
 would    inviolably observe the good   
and approved ancient laws which had been
    made by the devout and pious kings  
of ,england1 his ancestors1 and         
chiefly by ,king ,edward2 and we are    
told that the people then departed    in
 good humor4--,kelham's ,preliminary    
,discourse to the ,laws of    ,william  
the ,conqueror4 ,see1 also1 #a ,hale's  
,history of the ,common    ,law1 #ahf4  
,crabbe says that ,william the          

,conqueror solemnly swore that he would 
observe the good and approved laws of   
,edward the ,confessor4--,crabbe's      
,history of the ,english ,law1 p4 #dc4  
,the successors of ,william1 up to the  
time of ,magna ,carta1 probably all took
 the same oath1 according to the custom 
of the kingdom2 although there may be no
 historical accounts extant of the oath 
of each separate king4 ,but history     
tells us specially that ,henry ,i41     
,stephen1 and ,henry ,,ii41 confirmed   
these ancient laws and customs4 ,it     
appears1 also1 that the barons desired  
of ,john 7what he afterwards granted by 
,magna ,carta7 that the laws and        
liberties of ,king ,edward1 with other  
privileges granted to the kingdom and   
church of ,england1 might be confirmed1 
as they were contained in the charters  
of ,henry the ,first2 further alleging1 
that at the time of his absolution1 he  
promised by his oath to observe these   
very laws and liberties4--,echard's     
,history of ,england1 p4 #aje-f4  ,it   

would appear1 from the following        
authorities1 that since ,magna ,carta   
the form of the coronation oath has been
 to maintain the law of the             
land1--meaning that law as embodied in  
,magna ,carta4 ,or perhaps it is more   
probable that the ancient form has been 
still observed1 but that1 as its        
substance and purport were to maintain  
the law of the land1 this latter form of
 expression has been used1 in the       
instances here cited1 from motives of   
brevity and convenience4 ,this          
supposition is the more probable1 from  
the fact that ,i find no statute        
prescribing a change in the form of the 
oath until #afhh4  ,that ,magna ,carta  
was considered as embodying the law of  
the land1 or common law1 is shown by a  
statute passed by ,edward ,i41 wherein  
he grants1 or concedes1     ,that the   
,charter of ,liberties and the ,charter 
of the ,forest 99 99    shall be kept in
 every point1 without breach1 99 99 and 
that our    justices1 sheriffs1 mayors1 

and other ministers1 which1 under us1   
have the laws of our land#fc to guide1  
shall allow the said    charters pleaded
 before them in judgment1 in all their  
points1 that    is1 to wit1 the ,great  
,charter as the ,common ,law1 and the   
,charter of    the ,forest for the      
wealth of the realm4     ,and we will1  
that if any judgment be given from      
henceforth1 contrary    to the points of
 the charters aforesaid1 by the         
justices1 or by any    other our        
ministers that hold plea before them    
against the points of    the charters1  
it shall be undone1 and holden for      
naught4--#be ,edward    ,i41 ch4 #a and 
#b4 7#abig47  ,blackstone also says3    
,it is agreed by all our historians that
 the ,great ,charter of ,king    ,john  
was1 for the most part1 compiled from   
the ancient customs of    the realm1 or 
the laws of ,edward the ,confessor2 by  
which they usually    mean the old      
common law which was established under  
our ,saxon    princes4--,blackstone's   

,introduction to the ,charters4 ,see    
,blackstone's ,law ,tracts1 #bhi4       
,crabbe says3     ,it is admitted1 on   
all hands1 that it 7,magna ,carta7      
contains nothing    but what was        
confirmatory of the common law1 and the 
ancient usages    of the realm1 and is1 
properly speaking1 only an enlargement  
of the    charter of ,henry ,i41 and his
 successors4--,crabbe's ,history of the 
,english ,law1 p4 #abg4  ,that the      
coronation oath of the kings subsequent 
to ,magna ,carta was1 in substance1 if  
not in form1 to maintain this law of the
 land1 or common law1 is shown by a     
statute of ,edward ,third1 commencing as
 follows3     ,edward1 by the ,grace of 
,god1 c41 c41 to the ,sheriff of        
,stafford1    ,greeting3 ,because that  
by divers complaints made to us1 we have
    perceived that the law of the land1 
which we by oath are bound to           
maintain1 c4--,st4 #bj ,edward ,,iii4   
7#acdf47  ,the following extract from   
,lord ,somers' tract on ,grand ,juries  

shows that the coronation oath continued
 the same as late as #afaf1 7four       
hundred years after ,magna ,carta47 ,he 
says3     ,king ,james1 in his speech to
 the judges1 in the ,star ,chamber1     
,anno    #afaf1 told them1 ',that he    
had1 after many years1 resolved to renew
    his oath1 made at his coronation1   
concerning justice1 and the promise     
therein contained for maintaining the   
law of the land4' ,and1 in the    next  
page save one1 says1 ',i was sworn to   
maintain the law of the    land1 and    
therefore had been perjured if ,i had   
broken it4 ,god is my    judge1 ,i never
 intended it4'--,somers on ,grand       
,juries1 p4 #hb4  ,in #afhh1 the        
coronation oath was changed by act of   
,parliament1 and the king was made to   
swear3     ,to govern the people of this
 kingdom of ,england1 and the dominions 
thereto belonging1 according to the     
statutes in ,parliament agreed    on1   
and the laws and customs of the         
same4--,st4 #a ,william and    ,mary1   

ch4 #f4 7#afhh47  ,the effect and       
legality of this oath will hereafter be 
considered4 ,for the present it is      
sufficient to show1 as has been already 
sufficiently done1 that from the ,saxon 
times until at least as lately as #afaf1
 the coronation oath has been1 in       
substance1 to maintain the law of the   
land1 or the common law1 meaning thereby
 the ancient ,saxon customs1 as embodied
 in the laws of ,alfred1 of ,edward the 
,confessor1 and finally in ,magna       
,carta4  ,it may here be repeated that  
this oath plainly proves that the       
statutes of the king were of no         
authority over juries1 if inconsistent  
with their ideas of right2 because it   
was one part of the common law that     
juries should try all causes according  
to their own consciences1 any           
legislation of the king to the contrary 
notwithstanding4#fd  ,footnote #cd3     
,hale says3     ,the trial by jury of   
twelve men was the usual trial among the
    ,normans1 in most suits2 especially 

in assizes1 et juris utrum4--#a         
,hale's ,history of the ,common ,law1   
#bai4  ,this was in ,normandy1 before   
the conquest of ,england by the         
,normans4 ,see ,ditto1 p4 #bah4  ,crabbe
 says3     ,it cannot be denied that the
 practice of submitting causes to the   
decision of twelve men was universal    
among all the northern tribes    7of    
,europe7 from the very remotest         
antiquity4--,crabbe's ,history of    the
 ,english ,law1 p4 #cb4  ,footnote #ce3 
,the people1 who in every general       
council or assembly could oppose and    
dethrone their sovereigns1 were in      
little dread of their encroachments on  
their liberties2 and kings1 who found   
sufficient employment in keeping        
possession of their crowns1 would not   
likely attack the more important        
privileges of their subjects4  ,footnote
 #cf3 ,this office was afterwards       
committed to sheriffs4 ,but even while  
the court was held by the lord1 the     
,lord was not judge1 but the ,pares     

7peers7 only4--,gilbert on the ,court of
 ,exchequer1 #fa-b4  ,footnote #cg3 ,the
 opinion expressed in the text1 that the
 ,witan had no legislative authority1 is
 corroborated by the following          
authorities3  ,from the fact that the   
new laws passed by the king and the     
,witan were laid before the shire-mote1 
7county court17 we should be almost     
justified in the inference that a second
 sanction was necessary before they     
could have the effect of law in that    
particular county4--,dunham's ,middle   
,ages1 ,sec4 #b1 ,b4 #b1 ,ch4 #a4 #eg   
,lardner's ,cab4 ,cyc41 #ec4  ,the      
second sanction required to give the    
legislation of the king and ,witan the  
effect of law1 was undoubtedly1 ,i      
think1 as a general thing1 the sanction 
of a jury4 ,i know of no evidence       
whatever that laws were ever submitted  
to popular vote in the county courts1 as
 this author seems to suppose possible4 
,another mode1 sometimes resorted to for
 obtaining the sanction of the people to

 the laws of the ,witan1 was1 it seems1 
to persuade the people themselves to    
swear to observe them4 ,mackintosh says3
  ,the preambles of the laws 7of the    
,witan7 speak of the infinite number of 
liegemen who attended1 as only          
applauding the measures of the assembly4
 ,but this applause was neither so      
unimportant to the success of the       
measures1 nor so precisely distinguished
 from a share in legislation1 as those  
who read history with a modern eye might
 imagine4 ,it appears that under        
,athelstan expedients were resorted to1 
to obtain a consent to the law from     
great bodies of the people in their     
districts1 which their numbers rendered 
impossible in a national assembly4 ,that
 monarch appears to have sent           
commissioners to hold shire-gemotes or  
county meetings1 where they proclaimed  
the laws made by the king and his       
counsellors1 which1 being acknowledged  
and sworn to at these folk-motes        
7meetings of the people7 became1 by     

their assent1 completely binding on the 
whole nation4--,mackintosh's ,hist4 of  
,england1 ,ch4 #b4 #de ,lardner's ,cab4 
,cyc41 #ge4  ,footnote #ch3 ,page #ca4  
,footnote #ci3 ,hallam says1 ,it was1   
however1 to the county court that an    
,english freeman chiefly looked for the 
maintenance of his civil rights4--#b    
,middle ,ages1 #cib4  ,also1 ,this 7the 
county court7 was the great             
constitutional judicature in all        
questions of civil right4--,ditto1 #cie4
  ,also1 ,the liberties of these        
,anglo-,saxon thanes were chiefly       
secured1 next to their swords and their 
free spirits1 by the inestimable right  
of deciding civil and criminal suits in 
their own county courts4--,ditto1 #cii4 
,footnote #dj3 ,alfred may1 in one      
sense1 be called the founder of these   
laws1 7the ,saxon17 for until his time  
they were an unwritten code1 but he     
expressly says1 'that ,i1 ,alfred1      
collected the good laws of our          
forefathers into one code1 and also ,i  

wrote them down'--which is a decisive   
fact in the history of our laws well    
worth noting4--,introduction to         
,gilbert's ,history of the ,common      
,pleas1 p4 #b1 note4  ,kelham says1 ,let
 us consult our own lawyers and         
historians1 and they will tell us 99 99 
that ,alfred1 ,edgar1 and ,edward the   
,confessor1 were the great compilers and
 restorers of the ,english              
,laws4--,kelham's ,preliminary          
,discourse to the ,laws of ,william the 
,conqueror1 p4 #ab4 ,appendix to        
,kelham's ,dictionary of the ,norman    
,language4  ,he 7,alfred7 also1 like    
another ,theodosius1 collected the      
various customs that he found dispersed 
in the kingdom1 and reduced and digested
 them into one uniform system1 or code  
of laws1 in his som-bec1 or liber       
judicialis 7judicial book74 ,this he    
compiled for the use of the court baron1
 hundred and county court1 the          
court-leet and sheriff's tourn1         
tribunals which he established for the  

trial of all causes1 civil and criminal1
 in the very districts wherein the      
complaints arose4--#d ,blackstone1 #daa4
  ,alfred himself says1 ,hence ,i1 ,king
 ,alfred1 gathered these together1 and  
commanded many of those to be written   
down which our forefathers              
observed--those which ,i liked--and     
those which ,i did not like1 by the     
advice of my ,witan1 ,i threw aside4    
,for ,i durst not venture to set down in
 writing over many of my own1 since ,i  
knew not what among them would please   
those that should come after us4 ,but   
those which ,i met with either of the   
days of me1 my kinsman1 or of ,offa1    
,king of ,mercia1 or of thelbert1 who   
was the first of the ,english who       
received baptism--those which appeared  
to me the justest--,i have here         
collected1 and abandoned the others4    
,then ,i1 ,alfred1 ,king of the ,west   
,saxons1 showed these to all my ,witan1 
and they then said that they were all   
willing to observe them4--,laws of      

,alfred1 translated by ,r4 ,price1      
prefixed to ,mackintosh's ,history of   
,england1 vol4 #a4 #de ,lardner's ,cab4 
,cyc4  ,king ,edward 99 99 projected and
 begun what his grandson1 ,king ,edward 
the ,confessor1 afterwards completed1   
viz41 one uniform digest or body of laws
 to be observed throughout the whole    
kingdom1 being probably no more than a  
revival of ,king ,alfred's code1 with   
some improvements suggested by necessity
 and experience1 particularly the       
incorporating some of the ,british1 or1 
rather1 ,mercian customs1 and also such 
of the ,danish 7customs7 as were        
reasonable and approved1 into the ,west 
,saxon ,lage1 which was still the       
ground-work of the whole4 ,and this     
appears to be the best supported and    
most plausible conjecture1 7for         
certainty is not to be expected17 of the
 rise and original of that admirable    
system of maxims and unwritten customs  
which is now known by the name of the   
common law1 as extending its authority  

universally over all the realm1 and     
which is doubtless of ,saxon            
parentage4--#d ,blackstone1 #dab4  ,by  
the ,lex ,terr and ,lex ,regni is       
understood the laws of ,edward the      
,confessor1 confirmed and enlarged as   
they were by ,william the ,conqueror2   
and this ,constitution or ,code of ,laws
 is what even to this day are called    
',the ,common ,law of the               
,land4'--,introduction to ,gilbert's    
,history of the ,common ,pleas1 p4 #bb1 
note4  ,footnote #da3 ,not the conqueror
 of the ,english people1 7as the friends
 of liberty maintain17 but only of      
,harold the usurper4--,see ,hale's      
,history of the ,common ,law1 ch4 #e4   
,footnote #db3 ,for all these codes see 
,wilkins' ,laws of the ,anglo-,saxons4  
,being regulations adapted to existing  
institutions1 the ,anglo-,saxon statutes
 are concise and technical1 alluding to 
the law which was then living and in    
vigor1 rather than defining it4 ,the    
same clauses and chapters are often     

repeated word for word1 in the statutes 
of subsequent kings1 showing that       
enactments which bear the appearance of 
novelty are merely declaratory4         
,consequently the appearance of a law1  
seemingly for the first time1 is by no  
means to be considered as a proof that  
the matter which it contains is new2 nor
 can we trace the progress of the       
,anglo-,saxon institutions with any     
degree of certainty1 by following the   
dates of the statutes in which we find  
them first noticed4 ,all arguments      
founded on the apparent chronology of   
the subjects included in the laws1 are  
liable to great fallacies4 ,furthermore1
 a considerable portion of the          
,anglo-,saxon law was never recorded in 
writing4 ,there can be no doubt but that
 the rules of inheritance were well     
established and defined2 yet we have not
 a single law1 and hardly a single      
document from which the course of the   
descent of land can be inferred4 99 99  
,positive proof cannot be obtained of   

the commencement of any institution1    
because the first written law relating  
to it may possibly be merely            
confirmatory or declaratory2 neither can
 the non-existence of any institution be
 inferred from the absence of direct    
evidence4 ,written laws were modified   
and controlled by customs of which no   
trace can be discovered1 until after the
 lapse of centuries1 although those     
usages must have been in constant vigor 
during the long interval of silence4--#a
 ,palgrave's ,rise and ,progress of the 
,english ,commonwealth1 #eh-i4          
,footnote #dc3 ,rapin says1 ,the customs
 now practised in ,england are1 for the 
most part1 the same as the              
,anglo-,saxons brought with them from   
,germany4--,rapin's ,dissertation on the
 ,government of the ,anglo-,saxons1 vol4
 #b1 ,oct4 ,ed41 p4 #aih4 ,see ,kelham's
 ,discourse before named4  ,footnote    
#dd3 ,hallam says1 ,the county of       
,sussex contains sixty-five             
7'hundreds'72 that of ,dorset           

forty-three2 while ,yorkshire has only  
twenty-six2 and ,lancashire but six4--#b
 ,middle ,ages1 #cia4  ,footnote #de3   
,excepting also matters pertaining to   
the collection of the revenue1 which    
were determined in the king's court of  
exchequer4 ,but even in this court it   
was the law that none be amerced but by 
his peers4--,mirror of ,justices1 #di4  
,footnote #df3 ,for the ,english laws1  
although not written1 may1 as it should 
seem1 and that without any absurdity1 be
 termed laws1 7since this itself is     
law--that which pleases the prince has  
the force of law17 ,i mean those laws   
which it is evident were promulgated by 
the advice of the nobles and the        
authority of the prince1 concerning     
doubts to be settled in their assembly4 
,for if from the mere want of writing   
only1 they should not be considered     
laws1 then1 unquestionably1 writing     
would seem to confer more authority upon
 laws themselves1 than either the equity
 of the persons constituting1 or the    

reason of those framing                 
them4--,glanville's ,preface1 p4 #ch4   
7,glanville was chief justice of ,henry 
,,ii41 #aahj47 #b ,turner's ,history of 
the ,anglo-,saxons1 #bhj4  ,footnote    
#dg3 ,mackintosh's ,history of ,england1
 ch4 #c4 ,lardner's ,cabinet ,cyclopdia1
 #bff4  ,footnote #dh3 ,if the laws of  
the king were received as authoritative 
by the juries1 what occasion was there  
for his appointing special commissioners
 for the trial of offences1 without the 
intervention of a jury1 as he frequently
 did1 in manifest and acknowledged      
violation of ,magna ,carta1 and the law 
of the land8 ,these appointments were   
undoubtedly made for no other reason    
than that the juries were not           
sufficiently subservient1 but judged    
according to their own notions of right1
 instead of the will of the             
king--whether the latter were expressed 
in his statutes1 or by his judges4      
,footnote #di3 ,of course1 ,mr4 ,reeve  
means to be understood that1 in the     

hundred court1 and court-leet1 the      
jurors were the judges1 as he declares  
them to have been in the county court2  
otherwise the bailiff or steward must   
have been judge4  ,footnote #ej3 ,the   
jurors were sometimes called assessors1 
because they assessed1 or determined the
 amount of fines and amercements to be  
imposed4  ,footnote #ea3 ,the barons of 
the ,hundred were the freeholders4      
,hallam says3 ,the word baro1 originally
 meaning only a man1 was of very large  
significance1 and is not unfrequently   
applied to common freeholders1 as in the
 phrase court-baron4--#c ,middle ,ages1 
#ad-ae4  ,blackstone says3 ,the         
court-baron 99 99 is a court of common  
law1 and it is the court of the barons1 
by which name the freeholders were      
sometimes anciently called2 for that it 
is held before the freeholders who owe  
suit and service to the manor4--#c      
,blackstone1 #cc4  ,footnote #eb3 ,the  
ancient jury courts kept no records1    
because those who composed the courts   

could neither make nor read records4    
,their decisions were preserved by the  
memories of the jurors and other persons
 present4  ,footnote #ec3 ,stuart says3 
,the courts1 or civil arrangements1     
which were modelled in ,germany1        
preserved the independence of the       
people2 and having followed the ,saxons 
into ,england1 and continuing their     
importance1 they supported the envied   
liberty we boast of4 99 99  ,as a       
chieftain led out his retainers to the  
field1 and governed them during war2 so 
in peace he summoned them together1 and 
exerted a civil jurisdiction4 ,he was at
 once their captain and their judge4    
,they constituted his court2 and having 
inquired with him into the guilt of     
those of their order whom justice had   
accused1 they assisted him to enforce   
his decrees4  ,this court 7the          
court-baron7 was imported into ,england2
 but the innovation which conquest      
introduced into the fashion of the times
 altered somewhat its appearance4 99 99 

,the head or lord of the manor called   
forth his attendants to his hall4 99 99 
,he inquired into the breaches of       
custom1 and of justice1 which were      
committed within the precincts of his   
territory2 and with his followers1 who  
sat with him as judges1 he determined in
 all matters of debt1 and of trespass to
 a certain amount4 ,he possessed a      
similar jurisdiction with the chieftain 
in ,germany1 and his tenants enjoyed an 
equal authority with the ,german        
retainers4  ,but a mode of              
administration which intrusted so much  
power to the great could not long be    
exercised without blame or injustice4   
,the ,german1 guided by the candor of   
his mind1 and entering into all his     
engagements with the greatest ardor1    
perceived not1 at first1 that the       
chieftain to whom he submitted his      
disputes might be swayed1 in the        
judgments he pronounced1 by partiality1 
prejudice1 or interest2 and that the    
influence he maintained with his        

followers was too strong to be          
restrained by justice4 ,experience      
instructed him of his error2 he         
acknowledged the necessity of appealing 
from his lord2 and the court of the     
,hundred was erected4  ,this            
establishment was formed both in        
,germany and ,england1 by the           
inhabitants of a certain division1 who  
extended their jurisdiction over the    
territory they occupied4#fe ,they bound 
themselves under a penalty to assemble  
at stated times2 and having elected the 
wisest to preside over them1 they       
judged1 not only all civil and criminal 
matters1 but of those also which        
regarded religion and the priesthood4   
,the judicial power thus invested in the
 people was extensive2 they were able to
 preserve their rights1 and attended    
this court in arms4  ,as the            
communication1 however1 and intercourse1
 of the individuals of a ,german        
community began to be wider1 and more   
general1 as their dealings enlarged1 and

 as disputes arose among the members of 
different hundreds1 the insufficiency of
 these courts for the preservation of   
order was gradually perceived4 ,the     
shyre mote1 therefore1 or county court1 
was instituted2 and it formed the chief 
source of justice both in ,germany and  
,england4  ,the powers1 accordingly1    
which had been enjoyed by the court of  
the hundred1 were considerably impaired4
 ,it decided no longer concerning       
capital offences2 it decided not        
concerning matters of liberty1 and the  
property of estates1 or of slaves2 its  
judgments1 in every case1 became subject
 to review2 and it lost entirely the    
decision of causes1 when it delayed too 
long to consider them4  ,every subject  
of claim or contention was brought1 in  
the first instance1 or by appeal1 to the
 county court2 and the earl1 or         
eorldorman1 who presided there1 was     
active to put the laws in execution4 ,he
 repressed the disorders which fell out 
within the circuit of his authority2 and

 the least remission in his duty1 or the
 least fraud he committed1 was          
complained of and punished4 ,he was     
elected from among the great1 and was   
above the temptation of a bribe2 but1 to
 encourage his activity1 he was         
presented with a share of the territory 
he governed1 or was entitled to a       
proportion of the fines and profits of  
justice4 ,every man1 in his district1   
was bound to inform him concerning      
criminals1 and to assist him to bring   
them to trial2 and1 as in rude and      
violent times the poor and helpless were
 ready to be oppressed by the strong1 he
 was instructed particularly to defend  
them4  ,his court was ambulatory1 and   
assembled only twice a year1 unless the 
distribution of justice required that   
its meetings should be oftener4 ,every  
freeholder in the county was obliged to 
attend it2 and should he refuse this    
service1 his possessions were seized1   
and he was forced to find surety for his
 appearance4 ,the neighboring earls held

 not their courts on the same day2 and1 
what seems very singular1 no judge was  
allowed1 after meals1 to exercise his   
office4  ,the druids also1 or priests1  
in ,germany1 as we had formerly occasion
 to remark1 and the clergy in ,england1 
exercised a jurisdiction in the hundred 
and county courts4 ,they instructed the 
people in religious duties1 and in      
matters regarding the priesthood2 and   
the princes1 earls1 or eorldormen1      
related to them the laws and customs of 
the community4 ,these judges were       
mutually a check to each other2 but it  
was expected that they should agree in  
their judgments1 and should willingly   
unite their efforts for the public      
interest4#ff  ,but the prince or earl   
performed not1 at all times1 in person1 
the obligations of his office4 ,the     
enjoyment of ease and of pleasure1 to   
which in ,germany he had delivered      
himself over1 when disengaged from war1 
and the mean idea he conceived of the   
drudgery of civil affairs1 made him     

often delegate to an inferior person the
 distribution of justice in his         
district4 ,the same sentiments were     
experienced by the ,saxon nobility2 and 
the service which they owed by their    
tenures1 and the high employments they  
sustained1 called them often from the   
management of their counties4 ,the      
progress1 too1 of commerce1 giving an   
intricacy to cases1 and swelling the    
civil code1 added to the difficulty of  
their office1 and made them averse to   
its duties4 ,sheriffs1 therefore1 or    
deputies1 were frequently appointed to  
transact their business2 and though     
these were at first under some          
subordination to the earls1 they grew at
 length to be entirely independent of   
them4 ,the connection of jurisdiction   
and territory ceasing to prevail1 and   
the civil being separated from the      
ecclesiastical power1 they became the   
sole and proper officers for the        
direction of justice in the counties4   
,the hundred1 however1 and county       

courts1 were not equal of themselves for
 the purposes of jurisdiction and order4
 ,it was necessary that a court should  
be erected1 of supreme authority1 where 
the disputes of the great should be     
decided1 where the disagreeing          
sentiments of judges should be          
reconciled1 and where protection should 
be given to the people against their    
fraud and injustice4  ,the princes      
accordingly1 or chief nobility1 in the  
,german communities1 assembled together 
to judge of such matters4 ,the ,saxon   
nobles continued this prerogative2 and  
the king1 or1 in his absence1 the chief 
justiciary1 watched over their          
deliberations4 ,but it was not on every 
trivial occasion that this court        
interested itself4 ,in smaller concerns1
 justice was refused during three       
sessions of the hundred1 and claimed    
without effect1 at four courts of the   
county1 before there could lie an appeal
 to it4  ,so gradually were these       
arrangements established1 and so        

naturally did the varying circumstances 
in the situation of the ,germans and    
,anglo-,saxons direct those successive  
improvements which the preservation of  
order1 and the advantage of society1    
called them to adopt4 ,the admission of 
the people into the courts of justice   
preserved1 among the former1 that       
equality of ranks for which they were   
remarkable2 and it helped to overturn1  
among the latter1 those envious         
distinctions which the feudal system    
tended to introduce1 and prevented that 
venality in judges1 and those arbitrary 
proceedings1 which the growing          
attachment to interest1 and the         
influence of the crown1 might otherwise 
have occasioned4--,stuart on the        
,constitution of ,england1 p4 #bbb to   
#bde4  ,in the ,anglo-,saxon period1    
accordingly1 twelve only were elected2  
and these1 together with the judge1 or  
presiding officer of the district1 being
 sworn to regard justice1 and the voice 
of reason1 or conscience1 all causes    

were submitted to them4--,ditto1 p4     
#bfj4  ,before the orders of men were   
very nicely distinguished1 the jurors   
were elected from the same rank4 ,when1 
however1 a regular subordination of     
orders was established1 and when a      
knowledge of property had inspired the  
necessitous with envy1 and the rich with
 contempt1 every man was tried by his   
equals4 ,the same spirit of liberty     
which gave rise to this regulation      
attended its progress4 ,nor could       
monarchs assume a more arbitrary method 
of proceeding4 ',i will not' 7said the  
,earl of ,cornwall to his sovereign7    
'render up my castles1 nor depart the   
kingdom1 but by judgment of my peers4'  
,of this institution1 so wisely         
calculated for the preservation of      
liberty1 all our historians have        
pronounced the eulogium4--,ditto1 p4    
#bfb-c4  ,blackstone says3  ,the policy 
of our ancient constitution1 as         
regulated and established by the great  
,alfred1 was to bring justice home to   

every man's door1 by constituting as    
many courts of judicature as there are  
manors and towns in the kingdom2 wherein
 injuries were redressed in an easy and 
expeditious manner1 by the suffrage of  
neighbors and friends4 ,these little    
courts1 however1 communicated with      
others of a larger jurisdiction1 and    
those with others of a still greater    
power2 ascending gradually from the     
lowest to the supreme courts1 which were
 respectively constituted to correct the
 errors of the inferior ones1 and to    
determine such causes as1 by reason of  
their weight and difficulty1 demanded a 
more solemn discussion4 ,the course of  
justice flowing in large streams from   
the king1 as the fountain1 to his       
superior courts of record2 and being    
then subdivided into smaller channels1  
till the whole and every part of the    
kingdom were plentifully watered and    
refreshed4 ,an institution that seems   
highly agreeable to the dictates of     
natural reason1 as well as of more      

enlightened policy4 99 99  ,these       
inferior courts1 at least the name and  
form of them1 still continue in our     
legal constitution2 but as the superior 
courts of record have1 in practice1     
obtained a concurrent original          
jurisdiction1 and as there is1 besides1 
a power of removing plaints or actions  
thither from all the inferior           
jurisdictions2 upon these accounts      
7among others7 it has happened that     
these petty tribunals have fallen into  
decay1 and almost into oblivion2 whether
 for the better or the worse may be     
matter of some speculation1 when we     
consider1 on the one hand1 the increase 
of expense and delay1 and1 on the other1
 the more able and impartial decisions  
that follow from this change of         
jurisdiction4  ,the order ,i shall      
observe in discoursing on these several 
courts1 constituted for the redress of  
civil injuries1 7for with those of a    
jurisdiction merely criminal ,i shall   
not at present concern myself1#fg7 will 

be by beginning with the lowest1 and    
those whose jurisdiction1 though public 
and generally dispersed through the     
kingdom1 is yet 7with regard to each    
particular court7 confined to very      
narrow limits2 and so ascending         
gradually to those of the most extensive
 and transcendent power4--#c            
,blackstone1 #cj to #cb4  ,the          
court-baron is a court incident to every
 manor in the kingdom1 to be holden by  
the steward within the said manor4 ,this
 court-baron is of two natures2 the one 
is a customary court1 of which we       
formerly spoke1 appertaining entirely to
 the copy-holders1 in which their       
estates are transferred by surrender and
 admittance1 and other matters          
transacted relative to their tenures    
only4 ,the other1 of which we now speak1
 is a court of common law1 and it is a  
court of the barons1 by which name the  
freeholders were sometimes anciently    
called2 for that it is held by the      
freeholders who owe suit and service to 

the manor1 the steward being rather the 
registrar than the judge4 ,these courts1
 though in their nature distinct1 are   
frequently confounded together4 ,the    
court we are now considering1 viz41 the 
freeholders court1 was composed of the  
lord's tenants1 who were the pares      
7equals7 of each other1 and were bound  
by their feudal tenure to assist their  
lord in the dispensation of domestic    
justice4 ,this was formerly held every  
three weeks2 and its most important     
business is to determine1 by writ of    
right1 all controversies relating to the
 right of lands within the manor4 ,it   
may also hold plea of any personal      
actions1 of debt1 trespass in the case1 
or the like1 where the debt or damages  
do not amount to forty shillings2 which 
is the same sum1 or three marks1 that   
bounded the jurisdiction of the ancient 
,gothic courts in their lowest instance1
 or fierding courts1 so called because  
four were instituted within every       
superior district or hundred4--#c       

,blackstone1 #cc1 #cd4  ,a hundred court
 is only a larger court-baron1 being    
held for all the inhabitants of a       
particular hundred1 instead of a manor4 
,the free suitors are here also the     
judges1 and the steward the registrar1  
as in the case of a court-baron4 ,it is 
likewise no court of record1 resembling 
the former at all points1 except that in
 point of territory it is of greater    
jurisdiction4 ,this is said by ,sir     
,edward ,coke to have been derived out  
of the county court for the ease of the 
people1 that they might have justice    
done to them at their own doors1 without
 any charge or loss of time2 but its    
institution was probably coeval with    
that of hundreds themselves1 which were 
formerly observed to have been          
introduced1 though not invented1 by     
,alfred1 being derived from the polity  
of the ancient ,germans4 ,the centeni1  
we may remember1 were the principal     
inhabitants of a district composed of   
different villages1 originally in number

 a hundred1 but afterward only called by
 that name1 and who probably gave the   
same denomination to the district out of
 which they were chosen4 ,csar speaks   
positively of the judicial power        
exercised in their hundred courts and   
courts-baron4 ',princeps regiorum atque 
pagorum' 7which we may fairly construe  
the lords of hundreds and manors7 'inter
 suos jus dicunt1 controversias que     
minuunt4' 7,the chiefs of the country   
and the villages declare the law among  
them1 and abate controversies47 ,and    
,tacitus1 who had examined their        
constitution still more attentively1    
informs us not only of the authority of 
the lords1 but that of the centeni1 the 
hundreders1 or jury1 who were taken out 
of the common freeholders1 and had      
themselves a share in the determination4
 ',eliguntur in conciliis et principes1 
qui jura per pagos vicosque reddunt1    
centeni singulis1 ex plebe comites      
concilium simul et auctoritas adsunt4'  
7,the princes are chosen in the         

assemblies1 who administer the laws     
throughout the towns and villages1 and  
with each one are associated an hundred 
companions1 taken from the people1 for  
purposes both of counsel and authority47
 ,this hundred court was denominated    
hreda in the ,gothic constitution4 ,but 
this court1 as causes are equally liable
 to removal from hence as from the      
common court-baron1 and by the same     
writs1 and may also be reviewed by writ 
of false judgment1 is therefore fallen  
into equal disuse with regard to the    
trial of actions4--#c ,blackstone1 #cd1 
#ce4  ,the county court is a court      
incident to the jurisdiction of the     
sheriff4 ,it is not a court of record1  
but may hold pleas of debt1 or damages1 
under the value of forty shillings2 over
 some of which causes these inferior    
courts have1 by the express words of the
 statute of ,gloucester1 7#f ,edward    
,i41 ch4 #h17 a jurisdiction totally    
exclusive of the king's superior courts4
 99 99 ,the county court may also hold  

plea of many real actions1 and of all   
personal actions to any amount1 by      
virtue of a special writ1 called a      
justicies1 which is a writ empowering   
the sheriff1 for the sake of despatch1  
to do the same justice in his county    
court as might otherwise be had at      
,westminster4 ,the freeholders of the   
county court are the real judges in this
 court1 and the sheriff is the          
ministerial officer4 99 99 ,in modern   
times1 as proceedings are removable from
 hence into the king's superior courts1 
by writ of pone or recordari1 in the    
same manner as from hundred courts and  
courts-baron1 and as the same writ of   
false judgment may be had in nature of a
 writ of error1 this has occasioned the 
same disuse of bringing actions         
therein4--#c ,blackstone1 #cf1 #cg4     
,upon the whole1 we cannot but admire   
the wise economy and admirable provision
 of our ancestors in settling the       
distribution of justice in a method so  
well calculated for cheapness1          

expedition1 and ease4 ,by the           
constitution which they established1 all
 trivial debts1 and injuries of small   
consequence1 were to be recovered or    
redressed in every man's own county1    
hundred1 or perhaps parish4--#c         
,blackstone1 #ei4  ,footnote #ed3 #a    
,blackstone1 #fc-fg4  ,footnote #ee3    
,this quaint and curious book 7,smith's 
,commonwealth of ,england7 describes the
 minuti of trials1 giving in detail the 
mode of impanelling the jury1 and then  
the conduct of the lawyers1 witnesses1  
and court4 ,i give the following        
extracts1 tending to show that the      
judges impose no law upon the juries1 in
 either civil or criminal cases1 but    
only require them to determine the      
causes according to their consciences4  
,in civil causes he says3     ,when it  
is thought that it is enough pleaded    
before them1 and the    witnesses have  
said what they can1 one of the judges1  
with a brief    and pithy               
recapitulation1 reciteth to the twelve  

in sum the arguments    of the sergeants
 of either side1 that which the         
witnesses have    declared1 and the     
chief points of the evidence showed in  
writing1 and    once again putteth them 
in mind of the issue1 and sometime      
giveth it    them in writing1 delivering
 to them the evidence which is showed on
    either part1 if any be1 7evidence   
here is called writings of    contracts1
 authentical after the manner of        
,england1 that is to say1    written1   
sealed1 and delivered17 and biddeth them
 go together4--p4    #gd4  ,this is the 
whole account given of the charge to the
 jury4  ,in criminal cases1 after the   
witnesses have been heard1 and the      
prisoner has said what he pleases in his
 defence1 the book proceeds3     ,when  
the judge hath heard them say enough1 he
 asketh if they can say    any more3 ,if
 they say no1 then he turneth his speech
 to the inquest4    ',good men1 7saith  
he17 ye of the inquest1 ye have heard   
what these    men say against the       

prisoner4 ,you have also heard what the 
prisoner    can say for himself4 ,have  
an eye to your oath1 and to your duty1  
and    do that which ,god shall put in  
your minds to the discharge of your     
consciences1 and mark well what is      
said4'--p4 #ib4  ,this is the whole     
account given of the charge in a        
criminal case4  ,the following statement
 goes to confirm the same idea1 that    
jurors in ,england have formerly        
understood it to be their right and duty
 to judge only according to their       
consciences1 and not to submit to any   
dictation from the court1 either as to  
law or fact4     ,if having pregnant    
evidence1 nevertheless1 the twelve do   
acquit the    malefactor1 which they    
will do sometime1 especially if they    
perceive    either one of the justices  
or of the judges1 or some other man1 to 
pursue too much and too maliciously the 
death of the prisoner1 99 99    the     
prisoner escapeth2 but the twelve 7are7 
not only rebuked by the    judges1 but  

also threatened of punishment2 and many 
times commanded    to appear in the     
,star-,chamber1 or before the ,privy    
,council for the    matter4 ,but this   
threatening chanceth oftener than the   
execution    thereof2 and the twelve    
answer with most gentle words1 they did 
it    according to their consciences1   
and pray the judges to be good unto     
them1 they did as they thought right1   
and as they accorded all1 and    so it  
passeth away for the most part4--p4     
#ajj4  ,the account given of the trial  
of a peer of the realm corroborates the 
same point3     ,if any duke1 marquis1  
or any other of the degrees of a baron1 
or    above1 lord of the ,parliament1 be
 appeached of treason1 or any other     
capital crime1 he is judged by his peers
 and equals2 that is1 the    yeomanry   
doth not go upon him1 but an inquest of 
the ,lords of    ,parliament1 and they  
give their voice not one for all1 but   
each    severally as they do in         
,parliament1 being 7beginning7 at the   

youngest    lord4 ,and for judge one    
lord sitteth1 who is constable of       
,england for    that day4 ,the judgment 
once given1 he breaketh his staff1 and  
abdicateth his office4 ,in the rest     
there is no difference from that        
above written1 7that is1 in the case of 
a freeman47--p4 #ih4  ,footnote #ef3    
,the present form of the jurors' oath is
 that they shall 'give a true verdict   
according to the evidence4' ,at what    
time this form was introduced is        
uncertain2 but for several centuries    
after the ,conquest1 the jurors1 both in
 civil and criminal cases1 were sworn   
merely to speak the truth4 7,glanville1 
lib4 #b1 cap4 #ag2 ,bracton1 lib4 #c1   
cap4 #bb2 lib4 #d1 p4 #bhg1 #bia2       
,britton1 p4 #ace47 ,hence their        
decision was accurately termed          
veredictum1 or verdict1 that is1 'a     
thing truly said'2 whereas the phrase   
'true verdict' in the modern oath is not
 an accurate expression4--,political    
,dictionary1 word ,jury4  ,footnote #eg3

 ,of course1 there can be no legal trial
 by jury1 in either civil or criminal   
cases1 where the jury are sworn to try  
the cases according to law4  ,footnote  
#eh3 ,coke1 as late as #aehh1 admits    
that amercements must be fixed by the   
peers 7#h ,coke's ,rep4 #ch1 #b ,inst4  
#bg72 but he attempts1 wholly without   
success1 as it seems to me1 to show a   
difference between fines and            
amercements4 ,the statutes are very     
numerous1 running through the three or  
four hundred years immediately          
succeeding ,magna ,carta1 in which      
fines1 ransoms1 and amercements are     
spoken of as if they were the common    
punishments of offences1 and as if they 
all meant the same thing4 ,if1 however1 
any technical difference could be made  
out between them1 there is clearly none 
in principle2 and the word amercement1  
as used in ,magna ,carta1 must be taken 
in its most comprehensive sense4        
,footnote #ei3 ,common right was the    
common law4 #a ,coke's ,inst4 #adb a4 #b

 do4 #ee1 #f4  ,footnote #fj3 ,the oath 
of the justices is in these words3  ,ye 
shall swear1 that well and lawfully ye  
shall serve our lord the king and his   
people1 in the office of justice1 and   
that lawfully ye shall counsel the king 
in his business1 and that ye shall not  
counsel nor assent to anything which may
 turn him in damage or disherison in any
 manner1 way1 or color4 ,and that ye    
shall not know the damage or disherison 
of him1 whereof ye shall not cause him  
to be warned by yourself1 or by other2  
and that ye shall do equal law and      
execution of right to all his subjects1 
rich and poor1 without having regard to 
any person4 ,and that ye take not by    
yourself1 or by other1 privily nor      
apertly1 gift nor reward of gold nor    
silver1 nor of any other thing that may 
turn to your profit1 unless it be meat  
or drink1 and that of small value1 of   
any man that shall have any plea or     
process hanging before you1 as long as  
the same process shall be so hanging1   

nor after for the same cause4 ,and that 
ye take no fee1 as long as ye shall be  
justice1 nor robe of any man great or   
small1 but of the king himself4 ,and    
that ye give none advice or counsel to  
no man great or small1 in no case where 
the king is party4 ,and in case that    
any1 of what estate or condition they   
be1 come before you in your sessions    
with force and arms1 or otherwise       
against the peace1 or against the form  
of the statute thereof made1 to disturb 
execution of the common law1 7mark the  
term1 common law17 or to menace the     
people that they may not pursue the law1
 that ye shall cause their bodies to be 
arrested and put in prison2 and in case 
they be such that ye cannot arrest them1
 that ye certify the king of their      
names1 and of their misprision1 hastily1
 so that he may thereof ordain a        
convenable remedy4 ,and that ye by      
yourself1 nor by other1 privily nor     
apertly1 maintain any plea or quarrel   
hanging in the king's court1 or         

elsewhere in the country4 ,and that ye  
deny no man common right by the king's  
letters1 nor none other man's1 nor for  
none other cause2 and in case any       
letters come to you contrary to the law1
 7that is1 the common law before        
mentioned17 that ye do nothing by such  
letters1 but certify the king thereof1  
and proceed to execute the law1 7the    
common law before mentioned17           
notwithstanding the same letters4 ,and  
that ye shall do and procure the profit 
of the king and of his crown1 with all  
things where ye may reasonably do the   
same4 ,and in case ye be from henceforth
 found in default in any of the points  
aforesaid1 ye shall be at the king's    
will of body1 lands1 and goods1 thereof 
to be done as shall please him1 as ,god 
you help and all saints4--#ah ,edward   
,,iii41 st4 #d4 7#acdd47  ,footnote #fa3
 ,that the terms ,law and ,right1 as    
used in this statute1 mean the common   
law1 is shown by the preamble1 which    
declares the motive of the statute to be

 that the ,law of the ,land1 7the common
 law17 which we 7the king7 by our oath  
are bound to maintain1 may be the better
 kept1 c4  ,footnote #fb3 ,the following
 is a copy of the original3     ,forma  
,juramenti ,regis ,angli in ,coronacione
 sua3     7,archiepiscopus ,cantuari1 ad
 quo de jure et consuetudine ,ecclesi   
,cantuari1 antiqua et approbata1        
pertinet ,reges ,angli inungere et      
coronare1 die coronacionis ,regis1      
anteque ,rex coronetur1 faciet ,regi    
,interrogationes subscriptas47     ,si  
leges et consuetudines ab antiquis      
justis et ,deo devotis ,regibus    plebi
 ,anglicano concessas1 cum sacramenti   
confirmacione eidem plebi    concedere  
et servare 7volueris37 ,et prsertim     
leges et consuetudines    et libertates 
a glorioso ,rege ,edwardo clero         
populoque concessas8     7,et respondeat
 ,rex17 ,concedo et servare volo1 et    
sacramento    confirmare4     ,servabis 
,ecclesi ,dei1 ,cleroque1 et ,populo1   
pacem ex integro et    concordiam in    

,deo secundum vires tuas8     7,et      
respondeat ,rex17 ,servabo4     ,facies 
fieri in omnibus ,judiciis tuis equam et
 rectam justiciam1 et    discrecionem1  
in misericordia et veritate1 secundum   
vires tuas8     7,et respondeat ,rex17  
,faciam4     ,concedis justas1 leges et 
consuetudines esse tenendas1 et         
promittis    per te eas esse            
protegendas1 et ad honorem ,dei         
corroborandas1 quas    vulgus elegit1   
secundum vires tuas8     7,et respondeat
 ,rex17 ,concedo et promitto4  ,footnote
 #fc3 ,it would appear1 from the text1  
that the ,charter of ,liberties and the 
,charter of the ,forest were sometimes  
called laws of the land4  ,footnote #fd3
 ,as the ancient coronation oath1 given 
in the text1 has come down from the     
,saxon times1 the following remarks of  
,palgrave will be pertinent1 in         
connection with the oath1 as            
illustrating the fact that1 in those    
times1 no special authority attached to 
the laws of the king3  ,the ,imperial   

,witenagemot was not a legislative      
assembly1 in the strict sense of the    
term1 for the whole ,anglo-,saxon       
empire4 ,promulgating his edicts amidst 
his peers and prelates1 the king uses   
the language of command2 but the        
theoretical prerogative was modified by 
usage1 and the practice of the          
constitution required that the law      
should be accepted by the legislatures  
7courts7 of the several kingdoms4 99 99 
,the ',basileus' speaks in the tone of  
prerogative3 ,edgar does not merely     
recommend1 he commands that the law     
shall be adopted by all the people1     
whether ,english1 ,danes1 or ,britons1  
in every part of his empire4 ,let this  
statute be observed1 he continues1 by   
,earl ,oslac1 and all the host who dwell
 under his government1 and let it be    
transmitted by writ to the ealdormen of 
the other subordinate states4 ,and yet1 
in defiance of this positive injunction1
 the laws of ,edgar were not accepted in
 ,mercia until the reign of ,canute the 

,dane4 ,it might be said that the course
 so adopted may have been an exception  
to the general rule2 but in the scanty  
and imperfect annals of ,anglo-,saxon   
legislation1 we shall be able to find so
 many examples of similar proceedings1  
that this mode of enactment must be     
considered as dictated by the           
constitution of the empire4 ,edward was 
the supreme lord of the ,northumbrians1 
but more than a century elapsed before  
they obeyed his decrees4 ,the laws of   
the glorious ,athelstane had no effect  
in ,kent1 7county17 the dependent       
appanage of his crown1 until sanctioned 
by the ,witan of the shire 7county      
court74 ,and the power of ,canute       
himself1 the ',king of all ,england1'   
does not seem to have compelled the     
,northumbrians to receive his code1     
until the reign of the ,confessor1 when 
such acceptance became a part of the    
compact upon the accession of a new     
earl4  ,legislation constituted but a   
small portion of the ordinary business  

transacted by the ,imperial             
,witenagemot4 ,the wisdom of the        
assembly was shown in avoiding          
unnecessary change4 ,consisting         
principally of traditionary usages and  
ancestorial customs1 the law was upheld 
by opinion4 ,the people considered their
 jurisprudence as a part of their       
inheritance4 ,their privileges and their
 duties were closely conjoined2 most    
frequently1 the statutes themselves were
 only affirmances of ancient customs1 or
 declaratory enactments4 ,in the        
,anglo-,saxon commonwealth1 therefore1  
the legislative functions of the        
,witenagemot were of far less importance
 than the other branches of its         
authority4 99 99 ,the members of the    
,witenagemot were the ',pares ,curi'    
7,peers of ,court7 of the kingdom4 ,how 
far1 on these occasions1 their opinion  
or their equity controlled the power of 
the crown1 cannot be ascertained4 ,but  
the form of inserting their names in the
 ',testing ,clause' was retained under  

the ,anglo-,norman reigns2 and the      
sovereign1 who submitted his ,charter to
 the judgment of the ,proceres1         
professed to be guided by the opinion   
which they gave4 ,as the ',pares' of the
 empire1 the ,witenagemot decided the   
disputes between the great vassals of   
the crown4 99 99 ,the jurisdiction      
exercised in the ,parliament of ,edward 
,i41 when the barony of a ,lord-,marcher
 became the subject of litigation1 is   
entirely analogous to the proceedings   
thus adopted by the great council of    
,edward1 the son of ,alfred1 the        
,anglo-,saxon king4  ,in this assembly1 
the king1 the prelates1 the dukes1 the  
ealdormen1 and the optimates passed     
judgment upon all great offenders4 99 99
  ,the sovereign could not compel the   
obedience of the different nations      
composing the ,anglo-,saxon empire4     
,hence1 it became more necessary for him
 to conciliate their opinions1 if he    
solicited any service from a vassal     
prince or a vassal state beyond the     

ordinary terms of the compact2 still    
more so1 when he needed the support of a
 free burgh or city4 ,and we may view   
the assembly 7the ,witenagemot7 as      
partaking of the character of a         
political congress1 in which the        
liegemen of the crown1 or the           
communities protected by the            
',basileus1' 7sovereign17 were asked or 
persuaded to relieve the exigences of   
the state1 or to consider those measures
 which might be required for the common 
weal4 ,the sovereign was compelled to   
parley with his dependents4  ,it may be 
doubted whether any one member of the   
empire had power to legislate for any   
other member4 ,the ,regulus of ,cumbria 
was unaffected by the vote of the ,earl 
of ,east ,angli1 if he chose to stand   
out against it4 ,these dignitaries      
constituted a congress1 in which the    
sovereign could treat more conveniently 
and effectually with his vassals than by
 separate negotiations4 99 99 ,but the  
determinations of the ,witan bound those

 only who were present1 or who concurred
 in the proposition2 and a vassal       
denying his assent to the grant1 might  
assert that the engagement which he had 
contracted with his superior did not    
involve any pecuniary subsidy1 but only 
rendered him liable to perform service  
in the field4--#a ,palgrave's ,rise and 
,progress of the ,english ,commonwealth1
 #fcg to #fdb4  ,footnote #fe3 ,it was  
the freemen in ,germany1 and the        
possessors of land in ,england1 who were
 suitors 7jurors7 in the hundred court4 
,these ranks of men were the same4 ,the 
alteration which had happened in        
relation to property had invested the   
,german freemen with land or territory4 
,footnote #ff3 ,it would be wholly      
erroneous1 ,i think1 to infer from this 
statement of ,stuart1 that either the   
priests1 princes1 earls1 or eorldormen  
exercised any authority over the jury in
 the trial of causes1 in the way of     
dictating the law to them4 ,henry's     
account of this matter doubtless gives a

 much more accurate representation of   
the truth4 ,he says that anciently      
,the meeting 7the county court7 was     
opened with a discourse by the          
bishop1 explaining1 out of the          
,scriptures and ecclesiastical canons1  
their several duties as good ,christians
 and members of the church4    ,after   
this1 the alderman1 or one of his       
assessors1 made a discourse    on the   
laws of the land1 and the duties of good
 subjects and good    citizens4 ,when   
these preliminaries were over1 they     
proceeded to try    and determine1 first
 the causes of the church1 next the     
pleas of the    crown1 and last of all  
the controversies of private            
parties4--#c    ,henry's ,history of    
,great ,britain1 #cdh4  ,this view is   
corroborated by ,tyrrell's ,introduction
 to the ,history of ,england1 p4 #hc-hd1
 and by ,spence's ,origin of the ,laws  
and ,political ,institutions of ,modern 
,europe1 p4 #ddg1 and the note on the   
same page4 ,also by a law of ,canute to 

this effect1 ,in every county let there 
be twice a year an assembly1 whereat the
 bishop and the earl shall be present1  
the one to instruct the people in       
divine1 the other in human1             
laws4--,wilkins1 p4 #acf4  ,footnote    
#fg3 ,there was no distinction between  
the civil and criminal counts1 as to the
 rights or powers of juries4            
,,chapter ,,iv4  ,,the ,,rights ,,and   
,,duties ,,of ,,juries ,,in ,,civil     
,,suits4   ,the evidence already given  
in the preceding chapters proves that   
the rights and duties of jurors1 in     
civil suits1 were anciently the same as 
in criminal ones2 that the laws of the  
king were of no obligation upon the     
consciences of the jurors1 any further  
than the laws were seen by them to be   
just2 that very few laws were enacted   
applicable to civil suits2 that when a  
new law was enacted1 the nature of it   
could have been known to the jurors only
 by report1 and was very likely not to  
be known to them at all2 that nearly all

 the law involved in civil suits was    
unwritten2 that there was usually no one
 in attendance upon juries who could    
possibly enlighten them1 unless it were 
sheriffs1 stewards1 and bailiffs1 who   
were unquestionably too ignorant and    
untrustworthy to instruct them          
authoritatively2 that the jurors must   
therefore necessarily have judged for   
themselves of the whole case2 and that1 
as a general rule1 they could judge of  
it by no law but the law of nature1 or  
the principles of justice as they       
existed in their own minds4  ,the       
ancient oath of jurors in civil suits1  
viz41 that they would make known the    
truth according to their consciences1   
implies that the jurors were above the  
authority of all legislation4 ,the      
modern oath1 in ,england1 viz41 that    
they will well and truly try the issue  
between the parties1 and a true verdict 
give1 according to the evidence1 implies
 the same thing4 ,if the laws of the    
king had been binding upon a jury1 they 

would have been sworn to try the cases  
according to law1 or according to the   
laws4  ,the ancient writs1 in civil     
suits1 as given in ,glanville1 7within  
the half century before ,magna ,carta17 
to wit1 ,summon twelve free and legal   
men1 7or sometimes twelve knights17 to  
be in court1 prepared upon their oaths  
to declare whether ,a or ,b have the    
greater right to the land in question1  
indicate that the jurors judged of the  
whole matter on their consciences only4 
,the language of ,magna ,carta1 already 
discussed1 establishes the same point2  
for1 although some of the words1 such as
 outlawed1 and exiled1 would apply only 
to criminal cases1 nearly the whole     
chapter applies as well to civil as to  
criminal suits4 ,for example1 how could 
the payment of a debt ever be enforced  
against an unwilling debtor1 if he could
 neither be arrested1 imprisoned1 nor   
deprived of his freehold1 and if the    
king could neither proceed against him1 
nor send any one against him1 by force  

or arms8 ,yet ,magna ,carta as much     
forbids that any of these things shall  
be done against a debtor1 as against a  
criminal1 except according to1 or in    
execution of1 a judgment of his peers1  
or the law of the land1--a provision    
which1 it has been shown1 gave the jury 
the free and absolute right to give or  
withhold judgment according to their    
consciences1 irrespective of all        
legislation4  ,the following provisions1
 in the ,magna ,carta of ,john1         
illustrate the custom of referring the  
most important matters of a civil       
nature1 even where the king was a party1
 to the determination of the peers1 or  
of twelve men1 acting by no rules but   
their own consciences4 ,these examples  
at least show that there is nothing     
improbable or unnatural in the idea that
 juries should try all civil suits      
according to their own judgments1       
independently of all laws of the king4  
,chap4 #fe4 ,if we have disseized or    
dispossessed the ,welsh of any    lands1

 liberties1 or other things1 without the
 legal judgment of    their peers1 they 
shall be immediately restored to them4  
,and if any    dispute arises upon this 
head1 the matter shall be determined in 
the    ,marches1#fh by the judgment of  
their peers1 c4     ,chap4 #fh4 ,we     
shall treat with ,alexander1 king of    
,scots1 concerning    the restoring of  
his sisters1 and hostages1 and rights   
and liberties1    in the same form and  
manner as we shall do to the rest of our
 barons    of ,england2 unless by the   
engagements1 which his father ,william1 
late    king of ,scots1 hath entered    
into with us1 it ought to be otherwise2 
and this shall be left to the           
determination of his peers in our       
court4     ,chap4 #ef4 ,all evil customs
 concerning forests1 warrens1 and       
foresters1 warreners1 sheriffs1 and     
their officers1 rivers and their        
keepers1 shall forthwith be inquired    
into in each county1 by twelve          
knights of the same shire1 chosen by the

 most creditable persons in    the same 
county1 and upon oath2 and within forty 
days after the    said inquest1 be      
utterly abolished1 so as never to be    
restored4  ,there is substantially the  
same reason why a jury ought to judge of
 the justice of laws1 and hold all      
unjust laws invalid1 in civil suits1 as 
in criminal ones4 ,that reason is the   
necessity of guarding against the       
tyranny of the government4 ,nearly the  
same oppressions can be practised in    
civil suits as in criminal ones4 ,for   
example1 individuals may be deprived of 
their liberty1 and robbed of their      
property1 by judgments rendered in civil
 suits1 as well as in criminal ones4 ,if
 the laws of the king were imperative   
upon a jury in civil suits1 the king    
might enact laws giving one man's       
property to another1 or confiscating it 
to the king himself1 and authorizing    
civil suits to obtain possession of it4 
,thus a man might be robbed of his      
property at the arbitrary pleasure of   

the king4 ,in fact1 all the property of 
the kingdom would be placed at the      
arbitrary disposal of the king1 through 
the judgments of juries in civil suits1 
if the laws of the king were imperative 
upon a jury in such suits4#fi           
,furthermore1 it would be absurd and    
inconsistent to make a jury paramount to
 legislation in criminal suits1 and     
subordinate to it in civil suits2       
because an individual1 by resisting the 
execution of a civil judgment1 founded  
upon an unjust law1 could give rise to a
 criminal suit1 in which the jury would 
be bound to hold the same law invalid4  
,so that1 if an unjust law were binding 
upon a jury in civil suits1 a defendant1
 by resisting the execution of the      
judgment1 could1 in effect1 convert the 
civil action into a criminal one1 in    
which the jury would be paramount to the
 same legislation1 to which1 in the     
civil suit1 they were subordinate4 ,in  
other words1 in the criminal suit1 the  
jury would be obliged to justify the    

defendant in resisting a law1 which1 in 
the civil suit1 they had said he was    
bound to submit to4  ,to make this point
 plain to the most common mind--suppose 
a law be enacted that the property of ,a
 shall be given to ,b4 ,b brings a civil
 action to obtain possession of it4 ,if 
the jury1 in this civil suit1 are bound 
to hold the law obligatory1 they render 
a judgment in favor of ,b1 that he be   
put in possession of the property2      
thereby declaring that ,a is bound to   
submit to a law depriving him of his    
property4 ,but when the execution of    
that judgment comes to be               
attempted--that is1 when the sheriff    
comes to take the property for the      
purpose of delivering it to ,b--,a      
acting1 as he has a natural right to do1
 in defence of his property1 resists and
 kills the sheriff4 ,he is thereupon    
indicted for murder4 ,on this trial his 
plea is1 that in killing the sheriff1 he
 was simply exercising his natural right
 of defending his property against an   

unjust law4 ,the jury1 not being bound1 
in a criminal case1 by the authority of 
an unjust law1 judge the act on its     
merits1 and acquit the defendant--thus  
declaring that he was not bound to      
submit to the same law which the jury1  
in the civil suit1 had1 by their        
judgment1 declared that he was bound to 
submit to4 ,here is a contradiction     
between the two judgments4 ,in the civil
 suit1 the law is declared to be        
obligatory upon ,a2 in the criminal     
suit1 the same law is declared to be of 
no obligation4  ,it would be a solecism 
and absurdity in government to allow    
such consequences as these4 ,besides1 it
 would be practically impossible to     
maintain government on such principles2 
for no government could enforce its     
civil judgments1 unless it could support
 them by criminal ones1 in case of      
resistance4 ,a jury must therefore be   
paramount to legislation in both civil  
and criminal cases1 or in neither4 ,if  
they are paramount in neither1 they are 

no protection to liberty4 ,if they are  
paramount in both1 then all legislation 
goes only for what it may chance to be  
worth in the estimation of a jury4      
,another reason why ,magna ,carta makes 
the discretion and consciences of juries
 paramount to all legislation in civil  
suits1 is1 that if legislation were     
binding upon a jury1 the jurors--7by    
reason of their being unable to read1 as
 jurors in those days were1 and also by 
reason of many of the statutes being    
unwritten1 or at least not so many      
copies written as that juries could be  
supplied with them7--would have been    
necessitated--at least in those courts  
in which the king's justices sat--to    
take the word of those justices as to   
what the laws of the king really were4  
,in other words1 they would have been   
necessitated to take the law from the   
court1 as jurors do now4  ,now there    
were two reasons why1 as we may         
rationally suppose1 the people did not  
wish juries to take their law from the  

king's judges4 ,one was1 that1 at that  
day1 the people probably had sense      
enough to see1 7what we1 at this day1   
have not sense enough to see1 although  
we have the evidence of it every day    
before our eyes17 that those judges1    
being dependent upon the legislative    
power1 7the king17 being appointed by   
it1 paid by it1 and removable by it at  
pleasure1 would be mere tools of that   
power1 and would hold all its           
legislation obligatory1 whether it were 
just or unjust4 ,this was one reason1   
doubtless1 why ,magna ,carta made       
juries1 in civil suits1 paramount to all
 instructions of the king's judges4 ,the
 reason was precisely the same as that  
for making them paramount to all        
instructions of judges in criminal      
suits1 viz41 that the people did not    
choose to subject their rights of       
property1 and all other rights involved 
in civil suits1 to the operation of such
 laws as the king might please to enact4
 ,it was seen that to allow the king's  

judges to dictate the law to the jury   
would be equivalent to making the       
legislation of the king imperative upon 
the jury4  ,another reason why the      
people did not wish juries1 in civil    
suits1 to take their law from the king's
 judges1 doubtless was1 that1 knowing   
the dependence of the judges upon the   
king1 and knowing that the king would1  
of course1 tolerate no judges who were  
not subservient to his will1 they       
necessarily inferred that the king's    
judges would be as corrupt1 in the      
administration of justice1 as was the   
king himself1 or as he wished them to   
be4 ,and how corrupt that was1 may be   
inferred from the following historical  
facts4  ,hume says3    ,it appears that 
the ancient kings of ,england put       
themselves entirely    upon the footing 
of the barbarous ,eastern princes1 whom 
no man must    approach without a       
present1 who sell all their good        
offices1 and who    intrude themselves  
into every business that they may have a

 pretence    for extorting money4 ,even 
justice was avowedly bought and sold2   
the    king's court itself1 though the  
supreme judicature of the kingdom1      
was open to none that brought not       
presents to the king2 the bribes        
given for expedition1 delay1 suspension1
 and doubtless for the    perversion of 
justice1 were entered in the public     
registers of the    royal revenue1 and  
remain as monuments of the perpetual    
iniquity and    tyranny of the times4   
,the barons of the exchequer1 for       
instance1 the    first nobility of the  
kingdom1 were not ashamed to insert1 as 
an    article in their records1 that the
 county of ,norfolk paid a sum that     
they might be fairly dealt with2 the    
borough of ,yarmouth1 that the    king's
 charters1 which they have for their    
liberties1 might not be    violated2    
,richard1 son of ,gilbert1 for the      
king's helping him to    recover his    
debt from the ,jews2 99 99 ,serlo1 son  
of ,terlavaston1 that    he might be    

permitted to make his defence1 in case  
he were accused of    a certain         
homicide2 ,walter de ,burton1 for free  
law1 if accused of    wounding another2 
,robert de ,essart1 for having an       
inquest to find    whether ,roger1 the  
butcher1 and ,wace and ,humphrey1       
accused him of    robbery and theft out 
of envy and ill-will1 or not2 ,william  
,buhurst1    for having an inquest to   
find whether he were accused of the     
death of    one ,godwin1 out of         
ill-will1 or for just cause4 ,i have    
selected these    few instances from a  
great number of the like kind1 which    
,madox had    selected from a still     
greater number1 preserved in the ancient
 rolls    of the exchequer4             
,sometimes a party litigant offered the 
king a certain portion1 a    half1 a    
third1 a fourth1 payable out of the     
debts which he1 as the    executor of   
justice1 should assist in recovering4   
,theophania de    ,westland agreed to   
pay the half of two hundred and twelve  

marks1 that    she might recover that   
sum against ,james de ,fughleston2      
,solomon1 the    ,jew1 engaged to pay   
one mark out of every seven that he     
should    recover against ,hugh de la   
,hose2 ,nicholas ,morrel promised to pay
    sixty pounds1 that the ,earl of     
,flanders might be distrained to pay    
him three hundred and forty-three       
pounds1 which the earl had taken    from
 him2 and these sixty pounds were to be 
paid out of the first    money that     
,nicholas should recover from the       
earl4--,hume1 ,appendix    #b4     ,in  
the reign of ,henry ,,ii41 the best and 
most just of these 7the    ,norman7     
princes1 99 99 ,peter1 of ,blois1 a     
judicious and even elegant    writer1 of
 that age1 gives a pathetic description 
of the venality of    justice1 and the  
oppressions of the poor1 99 99 and he   
scruples not to    complain to the king 
himself of these abuses4 ,we may judge  
what the    case would be under the     
government of worse princes4--,hume1    

,appendix #b4  ,carte says3     ,the    
crown exercised in those days an        
exorbitant and inconvenient    power1   
ordering the justices of the king's     
court1 in suits about    lands1 to turn 
out1 put1 and keep in possession1 which 
of the    litigants they pleased2 to    
send contradictory orders2 and take     
large    sums of money from each2 to    
respite proceedings2 to direct          
sentences2    and the judges1 acting by 
their commission1 conceived themselves  
bound to observe such orders1 to the    
great delay1 interruption1 and          
preventing of justice2 at least1 this   
was ,john's practice4--,carte's         
,history of ,england1 vol4 #a1 p4 #hcb4 
,hallam says3     ,but of all the abuses
 that deformed the ,anglo-,saxon        
government1 none    was so flagitious as
 the sale of judicial redress4 ,the     
king1 we are    often told1 is the      
fountain of justice2 but in those ages  
it was one    which gold alone could    
unseal4 ,men fined 7paid fines7 to have 

right    done them2 to sue in a certain 
court2 to implead a certain person2 to  
have restitution of land which they had 
recovered at law4 ,from the    sale of  
that justice which every citizen has a  
right to demand1 it    was an easy      
transition to withhold or deny it4      
,fines were received    for the king's  
help against the adverse suitor2 that   
is1 for    perversion of justice1 or for
 delay4 ,sometimes they were paid by    
opposite parties1 and1 of course1 for   
opposite ends4--#b ,middle    ,ages1    
#dch4  ,in allusion to the provision of 
,magna ,carta on this subject1 ,hallam  
says3     ,a law which enacts that      
justice shall neither be sold1 denied1  
nor    delayed1 stamps with infamy that 
government under which it had become    
necessary4--#b ,middle ,ages1 #dea4     
,lingard1 speaking of the times of      
,henry ,,ii41 7say #aahd17 says3     ,it
 was universally understood that money  
possessed greater influence    than     
justice in the royal courts1 and        

instances are on record1 in    which one
 party has made the king a present to   
accelerate1 and the    other by a more  
valuable offer has succeeded in         
retarding a decision4    99 99 ,but     
besides the fines paid to the           
sovereigns1 the judges often    exacted 
presents for themselves1 and loud       
complaints existed against    their     
venality and injustice4--#b ,lingard1   
#bca4  ,in the narrative of ,the costs  
and charges which ,i1 ,richard de       
,anesty1 bestowed in recovering the land
 of ,william1 my uncle1 7some fifty     
years before ,magna ,carta17 are the    
following items3     ,to ,ralph1 the    
king's physician1 ,i gave thirty-six    
marks and one    half2 to the king an   
hundred marks2 and to the queen one mark
 of    gold4 ,the result is thus stated4
 ,at last1 thanks to our lord the       
king1 and by judgment of his court1 my  
uncle's land was adjudged to    me4--#b 
,palgrave's ,rise and ,progress of the  
,english ,commonwealth1    p4 #i and    

#bd4  ,palgrave also says3     ,the     
precious ore was cast into the scales of
 justice1 even when held    by the most 
conscientious of our ,anglo-,saxon      
kings4 ,a single case    will exemplify 
the practices which prevailed4 ,alfric1 
the heir of    ',aylwin1 the black1'    
seeks to set aside the death-bed        
bequest1 by    which his kinsman        
bestowed four rich and fertile manors   
upon ,st4    ,benedict4 ,alfric1 the    
claimant1 was supported by extensive and
    powerful connexions2 and ,abbot     
,alfwine1 the defendant1 was well aware 
that there would be danger in the       
discussion of the dispute in    public1 
or before the ,folkmoot1 7people's      
meeting1 or county court72    or1 in    
other words1 that the ,thanes of the    
shire would do their best    to give a  
judgment in favor of their compeer4 ,the
 plea being removed    into the ,royal  
,court1 the abbot acted with that       
prudence which so    often calls forth  
the praises of the monastic scribe4 ,he 

gladly    emptied twenty marks of gold  
into the sleeve of the ,confessor1      
7,edward17 and five marks of gold       
presented to ,edith1 the ,fair1         
encouraged her to aid the bishop1 and to
 exercise her gentle    influence in his
 favor4 ,alfric1 with equal wisdom1     
withdrew from    prosecuting the        
hopeless cause1 in which his opponent   
might possess    an advocate in the     
royal judge1 and a friend in the king's 
consort4    ,both parties1 therefore1   
found it desirable to come to an        
agreement4--#a ,palgrave's ,rise and    
,progress1 c41 p4 #fej4  ,but ,magna    
,carta has another provision for the    
trial of civil suits1 that obviously had
 its origin in the corruption of the    
king's judges4 ,the provision is1 that  
four knights1 to be chosen in every     
county1 by the people of the county1    
shall sit with the king's judges1 in the
 ,common ,pleas1 in jury trials1        
7assizes17 on the trial of three certain
 kinds of suits1 that were among the    

most important that were tried at all4  
,the reason for this provision          
undoubtedly was1 that the corruption and
 subserviency of the king's judges were 
so well known1 that the people would not
 even trust them to sit alone in a jury 
trial of any considerable importance4   
,the provision is this3     ,chap4 #bb1 
7of ,john's ,charter47 ,common ,pleas   
shall not follow our    court1 but shall
 be holden in some certain place4       
,trials upon the    writ of novel       
disseisin1 and of ,mort d',ancester1 and
 of ,darrein    ,presentment1 shall be  
taken but in their proper counties1 and 
after    this manner3 ,we1 or1 if we    
should be out of our realm1 our chief   
justiciary1 shall send two justiciaries 
through every county four    times a    
year2#gj who1 with four knights chosen  
out of every shire1    by the people1   
shall hold the assizes 7juries7 in the  
county1 on    the day and at the place  
appointed4  ,it would be very           
unreasonable to suppose that the king's 

judges were allowed to dictate the law  
to the juries1 when the people would not
 even suffer them to sit alone in jury  
trials1 but themselves chose four men to
 sit with them1 to keep them honest4#ga 
,this practice of sending the king's    
judges into the counties to preside at  
jury trials1 was introduced by the      
,norman kings4 ,under the ,saxons it was
 not so4 ,no officer of the king was    
allowed to preside at a jury trial2 but 
only magistrates chosen by the          
people4#gb  ,but the following chapter  
of ,john's charter1 which immediately   
succeeds the one just quoted1 and refers
 to the same suits1 affords very strong1
 not to say conclusive1 proof1 that     
juries judged of the law in civil       
suits--that is1 made the law1 so far as 
their deciding according to their own   
notions of justice could make the law4  
,chap4 #bc4 ,and if1 on the county day1 
the aforesaid assizes cannot    be      
taken1 so many knights and freeholders  
shall remain1 of those who    shall have

 been present on said day1 as that the  
judgments may be    rendered by them1   
whether the business be more or less4   
,the meaning of this chapter is1 that so
 many of the civil suits1 as could not  
be tried on the day when the king's     
justices were present1 should be tried  
afterwards1 by the four knights before  
mentioned1 and the freeholders1 that is1
 the jury4 ,it must be admitted1 of     
course1 that the juries1 in these cases1
 judged the matters of law1 as well as  
fact1 unless it be presumed that the    
knights dictated the law to the jury--a 
thing of which there is no evidence at  
all4  ,as a final proof on this point1  
there is a statute enacted seventy years
 after ,magna ,carta1 which1 although it
 is contrary to the common law1 and     
therefore void1 is nevertheless good    
evidence1 inasmuch as it contains an    
acknowledgment1 on the part of the king 
himself1 that juries had a right to     
judge of the whole matter1 law and fact1
 in civil suits4 ,the provision is this3

     ,it is ordained1 that the justices 
assigned to take the assizes1    shall  
not compel the jurors to say precisely  
whether it be disseisin1    or not1 so  
that they do show the truth of the deed1
 and seek aid of    the justices4 ,but  
if they will1 of their own accord1 say  
that it is    disseisin1 or not1 their  
verdict shall be admitted at their own  
peril4--#ac ,edward ,i41 st4 #a1 ch4 #c1
 sec4 #b4 7#abhe47  ,the question of    
disseisin1 or not1 was a question of    
law1 as well as fact4 ,this statute1    
therefore1 admits that the law1 as well 
as the fact1 was in the hands of the    
jury4 ,the statute is nevertheless void1
 because the king had no authority to   
give jurors a dispensation from the     
obligation imposed upon them by their   
oaths and the law of the land1 that they
 should make known the truth according  
their 7own7 consciences4 ,this they were
 bound to do1 and there was no power in 
the king to absolve them from the duty4 
,and the attempt of the king thus to    

absolve them1 and authorize them to     
throw the case into the hands of the    
judges for decision1 was simply an      
illegal and unconstitutional attempt to 
overturn the law of the land1 which he  
was sworn to maintain1 and gather power 
into his own hands1 through his judges4 
,he had just as much constitutional     
power to enact that the jurors should   
not be compelled to declare the facts1  
but that they might leave them to be    
determined by the king's judges1 as he  
had to enact that they should not be    
compelled to declare the law1 but might 
leave it to be decided by the king's    
judges4 ,it was as much the legal duty  
of the jury to decide the law as to     
decide the fact2 and no law of the king 
could affect their obligation to do     
either4 ,and this statute is only one   
example of the numberless contrivances  
and usurpations which have been resorted
 to1 for the purpose of destroying the  
original and genuine trial by jury4     
,footnote #fh3 ,marches1 the limits1 or 

boundaries1 between ,england and ,wales4
  ,footnote #fi3 ,that the kings would  
have had no scruples to enact laws for  
the special purpose of plundering the   
people1 by means of the judgments of    
juries1 if they could have got juries to
 acknowledge the authority of their     
laws1 is evident from the audacity with 
which they plundered them1 without any  
judgments of juries to authorize them4  
,it is not necessary to occupy space    
here to give details as to these        
robberies2 but only some evidence of the
 general fact4     ,hallam says1 that   
,for the first three reigns 7of the     
,norman kings7 99    99 the intolerable 
exactions of tribute1 the rapine of     
purveyance1 the    iniquity of royal    
courts1 are continually in the mouths of
 the    historians4 ',god sees the      
wretched people1' says the ,saxon       
,chronicler1 'most unjustly oppressed2  
first they are despoiled of    their    
possessions1 and then butchered4' ,this 
was a grievous year    7#aabd74 ,whoever

 had any property1 lost it by heavy     
taxes and unjust    decrees4--#b ,middle
 ,ages1 #dce-f4     ,in the succeeding  
reign of ,john1 all the rapacious       
exactions usual    to these ,norman     
kings were not only redoubled1 but      
mingled with    outrages of tyranny     
still more intolerable4 99 99     ,in   
#abjg ,john took a seventh of the       
movables of lay and spiritual           
persons1 all murmuring1 but none daring 
to speak against    it4--,ditto1 #ddf4  
,in ,hume's account of the extortions of
 those times1 the following paragraph   
occurs3     ,but the most barefaced acts
 of tyranny and oppression were         
practised    against the ,jews1 who were
 entirely out of the protection of the  
law1    and were abandoned to the       
immeasurable rapacity of the king and   
his    ministers4 ,besides many other   
indignities1 to which they were         
continually exposed1 it appears that    
they were once all thrown into          
prison1 and the sum of #ff1jjj marks    

exacted for their liberty4 ,at          
another time1 ,isaac1 the ,jew1 paid    
alone #eajj marks2 ,brun1 #cjjj         
marks2 ,jurnet1 #bjjj2 ,bennet1 #ejj4   
,at another1 ,licorica1 widow of        
,david1 the ,jew of ,oxford1 was        
required to pay #fjjj marks4--,hume's   
,hist4 ,eng41 ,appendix #b4  ,further   
accounts of the extortions and          
oppressions of the kings may be found in
 ,hume's ,history1 ,appendix #b1 and in 
,hallam's ,middle ,ages1 vol4 #b1 p4    
#dce to #ddf4  ,by ,magna ,carta ,john  
bound himself to make restitution for   
some of the spoliations he had committed
 upon individuals without the legal     
judgment of their peers4--,see ,magna   
,carta of ,john1 ch4 #fj1 #fa1 #fe and  
#ff4  ,one of the great charges1 on     
account of which the nation rose against
 ,john1 was1 that he plundered          
individuals of their property1 without  
legal judgment of their peers4 ,now it  
was evidently very weak and             
short-sighted in ,john to expose himself

 to such charges1 if his laws were      
really obligatory upon the peers2       
because1 in that case1 he could have    
enacted any laws that were necessary for
 his purpose1 and then1 by civil suits1 
have brought the cases before juries for
 their judgment1 and thus have          
accomplished all his robberies in a     
perfectly legal manner4  ,there would   
evidently have been no sense in these   
complaints1 that he deprived men of     
their property without legal judgment of
 their peers1 if his laws had been      
binding upon the peers2 because he could
 then have made the same spoliations as 
well with the judgment of the peers as  
without it4 ,taking the judgment of the 
peers in the matter1 would have been    
only a ridiculous and useless formality1
 if they were to exercise no discretion 
or conscience of their own1             
independently of the laws of the king4  
,it may here be mentioned1 in passing1  
that the same would be true in criminal 
matters1 if the king's laws were        

obligatory upon juries4  ,as an         
illustration of what tyranny the kings  
would sometimes practise1 ,hume says3   
,it appears from the ,great ,charter    
itself1 that not only ,john1 a          
tyrannical prince1 and ,richard1 a      
violent one1 but their father    ,henry1
 under whose reign the prevalence of    
gross abuses is the least    to be      
suspected1 were accustomed1 from their  
sole authority1 without    process of   
law1 to imprison1 banish1 and attaint   
the freemen of their    kingdom4--,hume1
 ,appendix #b4  ,the provision1 also1 in
 the #fdth chapter of ,magna ,carta1    
that all unjust and illegal fines1 and  
all amercements1 imposed unjustly1 and  
contrary to the ,law of the ,land1 shall
 be entirely forgiven1 c42 and the      
provision1 in chapter #fa1 that the king
 will cause full justice to be          
administered in regard to all those     
things1 of which any person has1 without
 legal judgment of his peers1 been      
dispossessed or deprived1 either by     

,king ,henry1 our father1 or our        
brother1 ,king ,richard1 indicate the   
tyrannical practices that prevailed4    
,we are told also that ,john himself had
 dispossessed several great    men      
without any judgment of their peers1    
condemned others to cruel    deaths1 99 
99 insomuch that his tyrannical will    
stood instead of a    law4--,echard's   
,history of ,england1 #ajf4  ,now all   
these things were very unnecessary and  
foolish1 if his laws were binding upon  
juries2 because1 in that case1 he could 
have procured the conviction of these   
men in a legal manner1 and thus have    
saved the necessity of such usurpation4 
,in short1 if the laws of the king had  
been binding upon juries1 there is no   
robbery1 vengeance1 or oppression1 which
 he could not have accomplished through 
the judgments of juries4 ,this          
consideration is sufficient1 of itself1 
to prove that the laws of the king were 
of no authority over a jury1 in either  
civil or criminal cases1 unless the     

juries regarded the laws as just in     
themselves4  ,footnote #gj3 ,by the     
,magna ,carta of ,henry ,,iii4 this is  
changed to once a year4  ,footnote #ga3 
,from the provision of ,magna ,carta1   
cited in the text1 it must be inferred  
that there can be no legal trial by     
jury1 in civil cases1 if only the king's
 justices preside2 that1 to make the    
trial legal1 there must be other        
persons1 chosen by the people1 to sit   
with them2 the object being to prevent  
the jury's being deceived by the        
justices4 ,i think we must also infer   
that the king's justices could sit only 
in the three actions specially          
mentioned4 ,we cannot go beyond the     
letter of ,magna ,carta1 in making      
innovations upon the common law1 which  
required all presiding officers in jury 
trials to be elected by the people4     
,footnote #gb3 ,the earls1 sheriffs1 and
 head-boroughs were annually elected in 
the full folcmote1 7people's            
meeting74--,introduction to ,gilbert's  

,history of the ,common ,pleas1 p4 #b1  
note4  ,it was the especial province of 
the earldomen or earl to attend the     
shyre-meeting1 7the county court17 twice
 a year1 and there officiate as the     
county judge in expounding the secular  
laws1 as appears by the fifth of        
,edgar's laws4--,same1 p4 #b1 note4     
,every ward had its proper alderman1 who
 was chosen1 and not imposed by the     
prince4--,same1 p4 #d1 text4  ,as the   
aldermen1 or earls1 were always chosen  
7by the people7 from among the greatest 
thanes1 who in those times were         
generally more addicted to arms than to 
letters1 they were but ill-qualified for
 the administration of justice1 and     
performing the civil duties of their    
office4--#c ,henry's ,history of ,great 
,britain1 #cdc4  ,but none of these     
thanes were annually elected in the full
 folcmote1 7people's meeting17 as the   
earls1 sheriffs1 and head-boroughs were2
 nor did ,king ,alfred 7as this author  
suggests7 deprive the people of the     

election of those last mentioned        
magistrates and nobles1 much less did he
 appoint them himself4--,introd4 to     
,gilbert's ,hist4 ,com4 ,pleas1 p4 #b1  
note4  ,the sheriff was usually not     
appointed by the lord1 but elected by   
the freeholders of the                  
district4--,political ,dictionary1 word 
,sheriff4  ,among the most remarkable of
 the ,saxon laws we may reckon 99 99 the
 election of their magistrates by the   
people1 originally even that of their   
kings1 till dear-bought experience      
evinced the convenience and necessity of
 establishing an hereditary succession  
to the crown4 ,but that 7the election7  
of all subordinate magistrates1 their   
military officers or heretochs1 their   
sheriffs1 their conservators of the     
peace1 their coroners1 their portreeves1
 7since changed into mayors and         
bailiffs17 and even their tithing-men   
and borsholders at the last1 continued1 
some1 till the ,norman conquest1 others 
for two centuries after1 and some remain

 to this day4--#d ,blackstone1 #dac4    
,the election of sheriffs was left to   
the people1 according to ancient        
usage4--,st4 ,west4 #a1 c4              
#bg4--;,crabbe's ,history of ,english   
,law1 #aha4     ,,chapter ,v4           
,,objections ,,answered   ,the following
 objections will be made to the         
doctrines and the evidence presented in 
the preceding chapters4  #a4 ,that it is
 a maxim of the law1 that the judges    
respond to the question of law1 and     
juries only to the question of fact4    
,the answer to this objection is1 that1 
since ,magna ,carta1 judges have had    
more than six centuries in which to     
invent and promulgate pretended maxims  
to suit themselves2 and this is one of  
them4 ,instead of expressing the law1 it
 expresses nothing but the ambitious and
 lawless will of the judges themselves1 
and of those whose instruments they     
are4#gc  #b4 ,it will be asked1 ,of what
 use are the justices1 if the jurors    
judge both of law and fact8  ,the answer

 is1 that they are of use1 #a4 ,to      
assist and enlighten the jurors1 if they
 can1 by their advice and information2  
such advice and information to be       
received only for what they may chance  
to be worth in the estimation of the    
jurors4 #b4 ,to do anything that may be 
necessary in regard to granting appeals 
and new trials4  #c4 ,it is said that it
 would be absurd that twelve ignorant   
men should have power to judge of the   
law1 while justices learned in the law  
should be compelled to sit by and see   
the law decided erroneously4  ,one      
answer to this objection is1 that the   
powers of juries are not granted to them
 on the supposition that they know the  
law better than the justices2 but on the
 ground that the justices are           
untrustworthy1 that they are exposed to 
bribes1 are themselves fond of power and
 authority1 and are also the dependent  
and subservient creatures of the        
legislature2 and that to allow them to  
dictate the law1 would not only expose  

the rights of parties to be sold for    
money1 but would be equivalent to       
surrendering all the property1 liberty1 
and rights of the people1 unreservedly  
into the hands of arbitrary power1 7the 
legislature17 to be disposed of at its  
pleasure4 ,the powers of juries1        
therefore1 not only place a curb upon   
the powers of legislators and judges1   
but imply also an imputation upon their 
integrity and trustworthiness2 and these
 are the reasons why legislators and    
judges have formerly entertained the    
intensest hatred of juries1 and1 so fast
 as they could do it without alarming   
the people for their liberties1 have1 by
 indirection1 denied1 undermined1 and   
practically destroyed their power4 ,and 
it is only since all the real power of  
juries has been destroyed1 and they have
 become mere tools in the hands of      
legislators and judges1 that they have  
become favorites with them4             
,legislators and judges are necessarily 
exposed to all the temptations of money1

 fame1 and power1 to induce them to     
disregard justice between parties1 and  
sell the rights1 and violate the        
liberties of the people4 ,jurors1 on the
 other hand1 are exposed to none of     
these temptations4 ,they are not liable 
to bribery1 for they are unknown to the 
parties until they come into the        
jury-box4 ,they can rarely gain either  
fame1 power1 or money1 by giving        
erroneous decisions4 ,their offices are 
temporary1 and they know that when they 
shall have executed them1 they must     
return to the people1 to hold all their 
own rights in life subject to the       
liability of such judgments1 by their   
successors1 as they themselves have     
given an example for4 ,the laws of human
 nature do not permit the supposition   
that twelve men1 taken by lot from the  
mass of the people1 and acting under    
such circumstances1 will all prove      
dishonest4 ,it is a supposable case that
 they may not be sufficiently           
enlightened to know and do their whole  

duty1 in all cases whatsoever2 but that 
they should all prove dishonest1 is not 
within the range of probability4 ,a     
jury1 therefore1 insures to us--what no 
other court does--that first and        
indispensable requisite in a judicial   
tribunal1 integrity4  #d4 ,it is alleged
 that if juries are allowed to judge of 
the law1 they decide the law absolutely2
 that their decision must necessarily   
stand1 be it right or wrong2 and that   
this power of absolute decision would be
 dangerous in their hands1 by reason of 
their ignorance of the law4  ,one answer
 is1 that this power1 which juries have 
of judging of the law1 is not a power of
 absolute decision in all cases4 ,for   
example1 it is a power to declare       
imperatively that a man's property1     
liberty1 or life1 shall not be taken    
from him2 but it is not a power to      
declare imperatively that they shall be 
taken from him4  ,magna ,carta does not 
provide that the judgments of the peers 
shall be executed2 but only that no     

other than their judgments shall ever be
 executed1 so far as to take a party's  
goods1 rights1 or person1 thereon4  ,a  
judgment of the peers may be reviewed1  
and invalidated1 and a new trial        
granted4 ,so that practically a jury has
 no absolute power to take a party's    
goods1 rights1 or person4 ,they have    
only an absolute veto upon their being  
taken by the government4 ,the government
 is not bound to do everything that a   
jury may adjudge4 ,it is only prohibited
 from doing anything--7that is1 from    
taking a party's goods1 rights1 or      
person7--unless a jury have first       
adjudged it to be done4  ,but it will1  
perhaps1 be said1 that if an erroneous  
judgment of one jury should be          
reaffirmed by another1 on a new trial1  
it must then be executed4 ,but ,magna   
,carta does not command even            
this--although it might1 perhaps1 have  
been reasonably safe for it to have done
 so--for if two juries unanimously      
affirm the same thing1 after all the    

light and aid that judges and lawyers   
can afford them1 that fact probably     
furnishes as strong a presumption in    
favor of the correctness of their       
opinion1 as can ordinarily be obtained  
in favor of a judgment1 by any measures 
of a practical character for the        
administration of justice4 ,still1 there
 is nothing in ,magna ,carta that       
compels the execution of even a second  
judgment of a jury4 ,the only injunction
 of ,magna ,carta upon the government1  
as to what it shall do1 on this point1  
is that it shall do justice and right1  
without sale1 denial1 or delay4 ,but    
this leaves the government all power of 
determining what is justice and right1  
except that it shall not consider       
anything as justice and right--so far as
 to carry it into execution against the 
goods1 rights1 or person of a           
party--unless it be something which a   
jury have sanctioned4  ,if the          
government had no alternative but to    
execute all judgments of a jury         

indiscriminately1 the power of juries   
would unquestionably be dangerous2 for  
there is no doubt that they may         
sometimes give hasty and erroneous      
judgments4 ,but when it is considered   
that their judgments can be reviewed1   
and new trials granted1 this danger is1 
for all practical purposes1 obviated4   
,if it be said that juries may          
successively give erroneous judgments1  
and that new trials cannot be granted   
indefinitely1 the answer is1 that so far
 as ,magna ,carta is concerned1 there is
 nothing to prevent the granting of new 
trials indefinitely1 if the judgments of
 juries are contrary to justice and     
right4 ,so that ,magna ,carta does not  
require any judgment whatever to be     
executed--so far as to take a party's   
goods1 rights1 or person1               
thereon--unless it be concurred in by   
both court and jury4  ,nevertheless1 we 
may1 for the sake of the argument1      
suppose the existence of a practical1 if
 not legal1 necessity1 for executing    

some judgment or other1 in cases where  
juries persist in disagreeing with the  
courts4 ,in such cases1 the principle of
 ,magna ,carta unquestionably is1 that  
the uniform judgments of successive     
juries shall prevail over the opinion of
 the court4 ,and the reason of this     
principle is obvious1 viz41 that it is  
the will of the country1 and not the    
will of the court1 or the government1   
that must determine what laws shall be  
established and enforced2 that the      
concurrent judgments of successive      
juries1 given in opposition to all the  
reasoning which judges and lawyers can  
offer to the contrary1 must necessarily 
be presumed to be a truer exposition of 
the will of the country1 than are the   
opinions of the judges4  ,but it may be 
said that1 unless jurors submit to the  
control of the court1 in matters of law1
 they may disagree among themselves1 and
 never come to any judgment2 and thus   
justice fail to be done4  ,such a case  
is perhaps possible2 but1 if possible1  

it can occur but rarely2 because1       
although one jury may disagree1 a       
succession of juries are not likely to  
disagree--that is1 on matters of natural
 law1 or abstract justice4#gd ,if such a
 thing should occur1 it would almost    
certainly be owing to the attempt of the
 court to mislead them4 ,it is hardly   
possible that any other cause should be 
adequate to produce such an effect2     
because justice comes very near to being
 a self-evident principle4 ,the mind    
perceives it almost intuitively4 ,if1 in
 addition to this1 the court be         
uniformly on the side of justice1 it is 
not a reasonable supposition that a     
succession of juries should disagree    
about it4 ,if1 therefore1 a succession  
of juries do disagree on the law of any 
case1 the presumption is1 not that      
justice fails of being done1 but that   
injustice is prevented--that injustice1 
which would be done1 if the opinion of  
the court were suffered to control the  
jury4  ,for the sake of the argument1   

however1 it may be admitted to be       
possible that justice should sometimes  
fail of being done through the          
disagreements of jurors1 notwithstanding
 all the light which judges and lawyers 
can throw upon the question in issue4   
,if it be asked what provision the trial
 by jury makes for such cases1 the      
answer is1 it makes none2 and justice   
must fail of being done1 from the want  
of its being made sufficiently          
intelligible4  ,under the trial by jury1
 justice can never be done--that is1 by 
a judgment that shall take a party's    
goods1 rights1 or person--until that    
justice can be made intelligible or     
perceptible to the minds of all the     
jurors2 or1 at least1 until it obtain   
the voluntary assent of all--an assent1 
which ought not to be given until the   
justice itself shall have become        
perceptible to all4  ,the principles of 
the trial by jury1 then1 are these3  #a4
 ,that1 in criminal cases1 the accused  
is presumed innocent4  #b4 ,that1 in    

civil cases1 possession is presumptive  
proof of property2 or1 in other words1  
every man is presumed to be the rightful
 proprietor of whatever he has in his   
possession4  #c4 ,that these            
presumptions shall be overcome1 in a    
court of justice1 only by evidence1 the 
sufficiency of which1 and by law1 the   
justice of which1 are satisfactory to   
the understanding and consciences of all
 the jurors4  ,these are the bases on   
which the trial by jury places the      
property1 liberty1 and rights of every  
individual4  ,but some one will say1 if 
these are the principles of the trial by
 jury1 then it is plain that justice    
must often fail to be done4 ,admitting1 
for the sake of the argument1 that this 
may be true1 the compensation for it is1
 that positive injustice will also often
 fail to be done2 whereas otherwise it  
would be done frequently4 ,the very     
precautions used to prevent injustice   
being done1 may often have the effect to
 prevent justice being done4 ,but are   

we1 therefore1 to take no precautions   
against injustice8 ,by no means1 all    
will agree4 ,the question then          
arises--,does the trial by jury1 as here
 explained1 involve such extreme and    
unnecessary precautions against         
injustice1 as to interpose unnecessary  
obstacles to the doing of justice8 ,men 
of different minds may very likely      
answer this question differently1       
according as they have more or less     
confidence in the wisdom and justice of 
legislators1 the integrity and          
independence of judges1 and the         
intelligence of jurors4 ,this much1     
however1 may be said in favor of these  
precautions1 viz41 that the history of  
the past1 as well as our constant       
present experience1 prove how much      
injustice may1 and certainly will1 be   
done1 systematically and continually1   
for the want of these precautions--that 
is1 while the law is authoritatively    
made and expounded by legislators and   
judges4 ,on the other hand1 we have no  

such evidence of how much justice may   
fail to be done1 by reason of these     
precautions--that is1 by reason of the  
law being left to the judgments and     
consciences of jurors4 ,we can determine
 the former point--that is1 how much    
positive injustice is done under the    
first of these two systems--because the 
system is in full operation2 but we     
cannot determine how much justice would 
fail to be done under the latter system1
 because we have1 in modern times1 had  
no experience of the use of the         
precautions themselves4 ,in ancient     
times1 when these precautions were      
nominally in force1 such was the tyranny
 of kings1 and such the poverty1        
ignorance1 and the inability of concert 
and resistance1 on the part of the      
people1 that the system had no full or  
fair operation4 ,it1 nevertheless1 under
 all these disadvantages1 impressed     
itself upon the understandings1 and     
imbedded itself in the hearts1 of the   
people1 so as no other system of civil  

liberty has ever done4  ,but this view  
of the two systems compares only the    
injustice done1 and the justice omitted 
to be done1 in the individual cases     
adjudged1 without looking beyond them4  
,and some persons might1 on first       
thought1 argue that1 if justice failed  
of being done under the one system1     
oftener than positive injustice were    
done under the other1 the balance was in
 favor of the latter system4 ,but such a
 weighing of the two systems against    
each other gives no true idea of their  
comparative merits or demerits2 for1    
possibly1 in this view alone1 the       
balance would not be very great in favor
 of either4 ,to compare1 or rather to   
contrast1 the two1 we must consider     
that1 under the jury system1 the        
failures to do justice would be only    
rare and exceptional cases2 and would be
 owing either to the intrinsic          
difficulty of the questions1 or to the  
fact that the parties had transacted    
their business in a manner              

unintelligible to the jury1 and the     
effects would be confined to the        
individual or individuals interested in 
the particular suits4 ,no permanent law 
would be established thereby destructive
 of the rights of the people in other   
like cases4 ,and the people at large    
would continue to enjoy all their       
natural rights as before4 ,but under the
 other system1 whenever an unjust law is
 enacted by the legislature1 and the    
judge imposes it upon the jury as       
authoritative1 and they give a judgment 
in accordance therewith1 the authority  
of the law is thereby established1 and  
the whole people are thus brought under 
the yoke of that law2 because they then 
understand that the law will be enforced
 against them in future1 if they presume
 to exercise their rights1 or refuse to 
comply with the exactions of the law4   
,in this manner all unjust laws are     
established1 and made operative against 
the rights of the people4  ,the         
difference1 then1 between the two       

systems is this3 ,under the one system1 
a jury1 at distant intervals1 would 7not
 enforce any positive injustice1 but    
only7 fail of enforcing justice1 in a   
dark and difficult case1 or in          
consequence of the parties not having   
transacted their business in a manner   
intelligible to a jury2 and the         
plaintiff would thus fail of obtaining  
what was rightfully due him4 ,and there 
the matter would end1 for evil1 though  
not for good2 for thenceforth parties1  
warned of the danger of losing their    
rights1 would be careful to transact    
their business in a more clear and      
intelligible manner4 ,under the other   
system--the system of legislative and   
judicial authority--positive injustice  
is not only done in every suit arising  
under unjust laws1--that is1 men's      
property1 liberty1 or lives are not only
 unjustly taken on those particular     
judgments1--but the rights of the whole 
people are struck down by the authority 
of the laws thus enforced1 and a        

wide-sweeping tyranny at once put in    
operation4  ,but there is another ample 
and conclusive answer to the argument   
that justice would often fail to be     
done1 if jurors were allowed to be      
governed by their own consciences1      
instead of the direction of the         
justices1 in matters of law4 ,that      
answer is this3  ,legitimate government 
can be formed only by the voluntary     
association of all who contribute to its
 support4 ,as a voluntary association1  
it can have for its objects only those  
things in which the members of the      
association are all agreed4 ,if1        
therefore1 there be any justice1 in     
regard to which all the parties to the  
government are not agreed1 the objects  
of the association do not extend to     
it4#ge  ,if any of the members wish more
 than this1--if they claim to have      
acquired a more extended knowledge of   
justice than is common to all1 and wish 
to have their pretended discoveries     
carried into effect1 in reference to    

themselves1--they must either form a    
separate association for that purpose1  
or be content to wait until they can    
make their views intelligible to the    
people at large4 ,they cannot claim or  
expect that the whole people shall      
practise the folly of taking on trust   
their pretended superior knowledge1 and 
of committing blindly into their hands  
all their own interests1 liberties1 and 
rights1 to be disposed of on principles1
 the justness of which the people       
themselves cannot comprehend4  ,a       
government of the whole1 therefore1 must
 necessarily confine itself to the      
administration of such principles of law
 as all the people1 who contribute to   
the support of the government1 can      
comprehend and see the justice of4 ,and 
it can be confined within those limits  
only by allowing the jurors1 who        
represent all the parties to the        
compact1 to judge of the law1 and the   
justice of the law1 in all cases        
whatsoever4 ,and if any justice be left 

undone1 under these circumstances1 it is
 a justice for which the nature of the  
association does not provide1 which the 
association does not undertake to do1   
and which1 as an association1 it is     
under no obligation to do4  ,the people 
at large1 the unlearned and common      
people1 have certainly an indisputable  
right to associate for the establishment
 and maintenance of such a government as
 they themselves see the justice of1 and
 feel the need of1 for the promotion of 
their own interests1 and the safety of  
their own rights1 without at the same   
time surrendering all their property1   
liberty1 and rights into the hands of   
men1 who1 under the pretence of a       
superior and incomprehensible knowledge 
of justice1 may dispose of such         
property1 liberties1 and rights1 in a   
manner to suit their own selfish and    
dishonest purposes4  ,if a government   
were to be established and supported    
solely by that portion of the people who
 lay claim to superior knowledge1 there 

would be some consistency in their      
saying that the common people should not
 be received as jurors1 with power to   
judge of the justice of the laws4 ,but  
so long as the whole people 7or all the 
male adults7 are presumed to be         
voluntary parties to the government1 and
 voluntary contributors to its support1 
there is no consistency in refusing to  
any one of them more than to another the
 right to sit as juror1 with full power 
to decide for himself whether any law   
that is proposed to be enforced in any  
particular case1 be within the objects  
of the association4  ,the conclusion1   
therefore1 is1 that1 in a government    
formed by voluntary association1 or on  
the theory of voluntary association1 and
 voluntary support1 7as all the ,north  
,american governments are17 no law can  
rightfully be enforced by the           
association in its corporate capacity1  
against the goods1 rights1 or person of 
any individual1 except it be such as all
 the members of the association agree   

that it may enforce4 ,to enforce any    
other law1 to the extent of taking a    
man's goods1 rights1 or person1 would be
 making some of the parties to the      
association accomplices in what they    
regard as acts of injustice4 ,it would  
also be making them consent to what they
 regard as the destruction of their own 
rights4 ,these are things which no      
legitimate system or theory of          
government can require of any of the    
parties to it4  ,the mode adopted1 by   
the trial by jury1 for ascertaining     
whether all the parties to the          
government do approve of a particular   
law1 is to take twelve men at random    
from the whole people1 and accept their 
unanimous decision as representing the  
opinions of the whole4 ,even this mode  
is not theoretically accurate2 for      
theoretical accuracy would require that 
every man1 who was a party to the       
government1 should individually give his
 consent to the enforcement of every law
 in every separate case4 ,but such a    

thing would be impossible in practice4  
,the consent of twelve men is therefore 
taken instead2 with the privilege of    
appeal1 and 7in case of error found by  
the appeal court7 a new trial1 to guard 
against possible mistakes4 ,this system1
 it is assumed1 will ascertain the sense
 of the whole people--the country--with 
sufficient accuracy for all practical   
purposes1 and with as much accuracy as  
is practicable without too great        
inconvenience and expense4  #e4 ,another
 objection that will perhaps be made to 
allowing jurors to judge of the law1 and
 the justice of the law1 is1 that the   
law would be uncertain4  ,if1 by this   
objection1 it be meant that the law     
would be uncertain to the minds of the  
people at large1 so that they would not 
know what the juries would sanction and 
what condemn1 and would not therefore   
know practically what their own rights  
and liberties were under the law1 the   
objection is thoroughly baseless and    
false4 ,no system of law that was ever  

devised could be so entirely            
intelligible and certain to the minds of
 the people at large as this4 ,compared 
with it1 the complicated systems of law 
that are compounded of the law of       
nature1 of constitutional grants1 of    
innumerable and incessantly changing    
legislative enactments1 and of countless
 and contradictory judicial decisions1  
with no uniform principle of reason or  
justice running through them1 are among 
the blindest of all the mazes in which  
unsophisticated minds were ever         
bewildered and lost4 ,the uncertainty of
 the law under these systems has become 
a proverb4 ,so great is this            
uncertainty1 that nearly all men1       
learned as well as unlearned1 shun the  
law as their enemy1 instead of resorting
 to it for protection4 ,they usually go 
into courts of justice1 so called1 only 
as men go into battle--when there is no 
alternative left for them4 ,and even    
then they go into them as men go into   
dark labyrinths and caverns--with no    

knowledge of their own1 but trusting    
wholly to their guides4 ,yet1 less      
fortunate than other adventurers1 they  
can have little confidence even in their
 guides1 for the reason that the guides 
themselves know little of the mazes they
 are threading4 ,they know the mode and 
place of entrance2 but what they will   
meet with on their way1 and what will be
 the time1 mode1 place1 or condition of 
their exit2 whether they will emerge    
into a prison1 or not2 whether wholly   
naked and destitute1 or not2 whether    
with their reputations left to them1 or 
not2 and whether in time or eternity2   
experienced and honest guides rarely    
venture to predict4 ,was there ever such
 fatuity as that of a nation of men     
madly bent on building up such          
labyrinths as these1 for no other       
purpose than that of exposing all their 
rights of reputation1 property1 liberty1
 and life1 to the hazards of being lost 
in them1 instead of being content to    
live in the light of the open day of    

their own understandings8  ,what honest1
 unsophisticated man ever found himself 
involved in a lawsuit1 that he did not  
desire1 of all things1 that his cause   
might be judged of on principles of     
natural justice1 as those principles    
were understood by plain men like       
himself8 ,he would then feel that he    
could foresee the result4 ,these plain  
men are the men who pay the taxes1 and  
support the government4 ,why should they
 not have such an administration of     
justice as they desire1 and can         
understand8  ,if the jurors were to     
judge of the law1 and the justice of the
 law1 there would be something like     
certainty in the administration of      
justice1 and in the popular knowledge of
 the law1 and men would govern          
themselves accordingly4 ,there would be 
something like certainty1 because every 
man has himself something like definite 
and clear opinions1 and also knows      
something of the opinions of his        
neighbors1 on matters of justice4 ,and  

he would know that no statute1 unless it
 were so clearly just as to command the 
unanimous assent of twelve men1 who     
should be taken at random from the whole
 community1 could be enforced so as to  
take from him his reputation1 property1 
liberty1 or life4 ,what greater         
certainty can men require or need1 as to
 the laws under which they are to live8 
,if a statute were enacted by a         
legislature1 a man1 in order to know    
what was its true interpretation1       
whether it were constitutional1 and     
whether it would be enforced1 would not 
be under the necessity of waiting for   
years until some suit had arisen and    
been carried through all the stages of  
judicial proceeding1 to a final         
decision4 ,he would need only to use his
 own reason as to its meaning and its   
justice1 and then talk with his         
neighbors on the same points4 ,unless he
 found them nearly unanimous in their   
interpretation and approbation of it1 he
 would conclude that juries would not   

unite in enforcing it1 and that it would
 consequently be a dead letter4 ,and he 
would be safe in coming to this         
conclusion4  ,there would be something  
like certainty in the administration of 
justice1 and in the popular knowledge of
 the law1 for the further reason that   
there would be little legislation1 and  
men's rights would be left to stand     
almost solely upon the law of nature1 or
 what was once called in ,england the   
common law1 7before so much legislation 
and usurpation had become incorporated  
into the common law17--in other words1  
upon the principles of natural justice4 
,of the certainty of this law of nature1
 or the ancient ,english common law1 ,i 
may be excused for repeating here what  
,i have said on another occasion4       
,natural law1 so far from being         
uncertain1 when compared with           
statutory and constitutional law1 is the
 only thing that gives any    certainty 
at all to a very large portion of our   
statutory and    constitutional law4    

,the reason is this4 ,the words in which
 statutes    and constitutions are      
written are susceptible of so many      
different    meanings1--meanings widely 
different from1 often directly opposite 
to1 each other1 in their bearing upon   
men's rights1--that1 unless    there    
were some rule of interpretation for    
determining which of these    various   
and opposite meanings are the true ones1
 there could be no    certainty at all  
as to the meaning of the statutes and   
constitutions    themselves4 ,judges    
could make almost anything they should  
please out    of them4 ,hence the       
necessity of a rule of interpretation4  
,and this    rule is1 that the language 
of statutes and constitutions shall be  
construed1 as nearly as possible1       
consistently with natural law4     ,the 
rule assumes1 what is true1 that natural
 law is a thing certain    in itself2   
also that it is capable of being        
learned4 ,it assumes1    furthermore1   
that it actually is understood by the   

legislators and    judges who make and  
interpret the written law4 ,of          
necessity1    therefore1 it assumes     
further1 that they 7the legislators and 
judges7    are incompetent to make and  
interpret the written law1 unless       
they previously understand the natural  
law applicable to the same    subject4  
,it also assumes that the people must   
understand the    natural law1 before   
they can understand the written law4    
,it is a principle perfectly familiar to
 lawyers1 and one that must be          
perfectly obvious to every other man    
that will reflect a moment1    that1 as 
a general rule1 no one can know what the
 written law is1    until he knows what 
it ought to be2 that men are liable to  
be    constantly misled by the various  
and conflicting senses of the same      
words1 unless they perceive the true    
legal sense in which the words    ought 
to be taken4 ,and this true legal sense 
is the sense that is    most nearly     
consistent with natural law of any that 

the words can be    made to bear1       
consistently with the laws of language1 
and    appropriately to the subjects to 
which they are applied4     ,though the 
words contain the law1 the words        
themselves are not    the law4 ,were the
 words themselves the law1 each single  
written law    would be liable to       
embrace many different laws1 to wit1 as 
many    different laws as there were    
different senses1 and different         
combinations of senses1 in which each   
and all the words were capable    of    
being taken4     ,take1 for example1 the
 ,constitution of the ,united ,states4  
,by adopting    one or another sense of 
the single word free1 the whole         
instrument is changed4 ,yet the word    
free is capable of some ten or    twenty
 different senses4 ,so that1 by changing
 the sense of that    single word1 some 
ten or twenty different constitutions   
could be made    out of the same written
 instrument4 ,but there are1 we will    
suppose1 a    thousand other words in   

the constitution1 each of which is      
capable of    from two to ten different 
senses4 ,so that1 by changing the sense 
of    only a single word at a time1     
several thousands of different          
constitutions would be made4 ,but this  
is not all4 ,variations could    also be
 made by changing the senses of two or  
more words at a time1    and these      
variations could be run through all the 
changes and    combinations of senses   
that these thousand words are capable   
of4 ,we    see1 then1 that it is no more
 than a literal truth1 that out of that 
single instrument1 as it now stands1    
without altering the location of    a   
single word1 might be formed1 by        
construction and interpretation1    more
 different constitutions than figures   
can well estimate4     ,but each written
 law1 in order to be a law1 must be     
taken only in    some one definite and  
distinct sense2 and that definite and   
distinct sense must be selected from the
 almost infinite variety of    senses   

which its words are capable of4 ,how is 
this selection to be    made8 ,it can be
 only by the aid of that perception of  
natural law1 or    natural justice1     
which men naturally possess4     ,such1 
then1 is the comparative certainty of   
the natural and the    written law4     
,nearly all the certainty there is in   
the latter1 so far    as it relates to  
principles1 is based upon1 and derived  
from1 the    still greater certainty of 
the former4 ,in fact1 nearly all the    
uncertainty of the laws under which we  
live1--which are a mixture of    natural
 and written laws1--arises from the     
difficulty of construing1    or1 rather1
 from the facility of misconstruing1 the
 written law2    while natural law has  
nearly or quite the same certainty as   
mathematics4 ,on this point1 ,sir       
,william ,jones1 one of the most        
learned judges that have ever lived1    
learned in ,asiatic as well as          
,european law1 says1--and the fact      
should be kept forever in mind1 as      

one of the most important of all        
truths3--,it is pleasing to remark      
the similarity1 or1 rather1 the identity
 of those conclusions which    pure1    
unbiassed reason1 in all ages and       
nations1 seldom fails to    draw1 in    
such juridical inquiries as are not     
fettered and manacled by    positive    
institutions4#gf ,in short1 the simple  
fact that the    written law must be    
interpreted by the natural1 is1 of      
itself1 a    sufficient confession of   
the superior certainty of the latter4   
,the written law1 then1 even where it   
can be construed consistently    with   
the natural1 introduces labor and       
obscurity1 instead of shutting    them  
out4 ,and this must always be the case1 
because words do not    create ideas1   
but only recall them2 and the same word 
may recall many    different ideas4 ,for
 this reason1 nearly all abstract       
principles can    be seen by the single 
mind more clearly than they can be      
expressed by    words to another4 ,this 

is owing to the imperfection of         
language1 and    the different senses1  
meanings1 and shades of meaning1 which  
different individuals attach to the same
 words1 in the same    circumstances4#gg
     ,where the written law cannot be   
construed consistently with the         
natural1 there is no reason why it      
should ever be enacted at all4 ,it      
may1 indeed1 be sufficiently plain and  
certain to be easily    understood2 but 
its certainty and plainness are but a   
poor    compensation for its injustice4 
,doubtless a law forbidding men to      
drink water1 on pain of death1 might be 
made so intelligible as to    cut off   
all discussion as to its meaning2 but   
would the    intelligibleness of such a 
law be any equivalent for the right to  
drink water8 ,the principle is the same 
in regard to all unjust laws4    ,few   
persons could reasonably feel           
compensated for the arbitrary           
destruction of their rights1 by having  
the order for their    destruction made 

known beforehand1 in terms so distinct  
and    unequivocal as to admit of       
neither mistake nor evasion4 ,yet this  
is    all the compensation that such    
laws offer4     ,whether1 therefore1    
written laws correspond with1 or differ 
from1 the    natural1 they are to be    
condemned4 ,in the first case1 they are 
useless repetitions1 introducing labor  
and obscurity4 ,in the latter    case1  
they are positive violations of men's   
rights4     ,there would be             
substantially the same reason in        
enacting mathematics    by statute1 that
 there is in enacting natural law4      
,whenever the    natural law is         
sufficiently certain to all men's minds 
to justify its    being enacted1 it is  
sufficiently certain to need no         
enactment4 ,on    the other hand1 until 
it be thus certain1 there is danger of  
doing    injustice by enacting it2 it   
should1 therefore1 be left open to be   
discussed by anybody who may be disposed
 to question it1 and to be    judged of 

by the proper tribunal1 the             
judiciary4#gh     ,it is not necessary  
that legislators should enact natural   
law in    order that it may be known to 
the people1 because that would be       
presuming that the legislators already  
understand it better than the           
people1--a fact of which ,i am not aware
 that they have ever    heretofore given
 any very satisfactory evidence4 ,the   
same sources of    knowledge on the     
subject are open to the people that are 
open to the    legislators1 and the     
people must be presumed to know it as   
well as    they4     ,the objections    
made to natural law1 on the ground of   
obscurity1 are    wholly unfounded4 ,it 
is true1 it must be learned1 like any   
other    science2 but it is equally true
 that it is very easily learned4        
,although as illimitable in its         
applications as the infinite relations  
of men to each other1 it is1            
nevertheless1 made up of simple         
elementary principles1 of the truth and 

justice of which every    ordinary mind 
has an almost intuitive perception4 ,it 
is the science    of justice1--and      
almost all men have the same perceptions
 of what    constitutes justice1 or of  
what justice requires1 when they        
understand alike the facts from which   
their inferences are to be    drawn4    
,men living in contact with each other1 
and having intercourse    together1     
cannot avoid learning natural law1 to a 
very great    extent1 even if they      
would4 ,the dealings of men with men1   
their    separate possessions1 and their
 individual wants1 are continually      
forcing upon their minds the            
questions1--,is this act just8 or is it 
unjust8 ,is this thing mine8 or is it   
his8 ,and these are questions of        
natural law2 questions1 which1 in regard
 to the great mass of cases1    are     
answered alike by the human mind        
everywhere4     ,children learn many    
principles of natural law at a very     
early age4    ,for example3 they learn  

that when one child has picked up an    
apple or    a flower1 it is his1 and    
that his associates must not take it    
from    him against his will4 ,they also
 learn that if he voluntarily exchange  
his apple or flower with a playmate1 for
 some other article of    desire1 he has
 thereby surrendered his right to it1   
and must not    reclaim it4 ,these are  
fundamental principles of natural law1  
which    govern most of the greatest    
interests of individuals and society2   
yet    children learn them earlier than 
they learn that three and three are     
six1 or five and five1 ten4 ,talk of    
enacting natural law by statute1    that
 it may be known6 ,it would hardly be   
extravagant to say1 that1 in    nine    
cases in ten1 men learn it before they  
have learned the language    by which we
 describe it4 ,nevertheless1 numerous   
treatises are written    on it1 as on   
other sciences4 ,the decisions of       
courts1 containing    their opinions    
upon the almost endless variety of cases

 that have    come before them1 are     
reported2 and these reports are         
condensed1    codified1 and digested1 so
 as to give1 in a small compass1 the    
facts1    and the opinions of the courts
 as to the law resulting from them4 ,and
    these treatises1 codes1 and digests 
are open to be read of all men4    ,and 
a man has the same excuse for being     
ignorant of arithmetic1 or    any other 
science1 that he has for being ignorant 
of natural law4 ,he    can learn it as  
well1 if he will1 without its being     
enacted1 as he    could if it were4     
,if our governments would but themselves
 adhere to natural law1 there    would  
be little occasion to complain of the   
ignorance of the people    in regard to 
it4 ,the popular ignorance of law is    
attributable mainly    to the           
innovations that have been made upon    
natural law by    legislation2 whereby  
our system has become an incongruous    
mixture of    natural and statute law1  
with no uniform principle pervading it4 

,to    learn such a system1--if system  
it can be called1 and if learned it     
can be1--is a matter of very similar    
difficulty to what it would be    to    
learn a system of mathematics1 which    
should consist of the    mathematics of 
nature1 interspersed with such other    
mathematics as    might be created by   
legislation1 in violation of all the    
natural    principles of numbers and    
quantities4     ,but whether the        
difficulties of learning natural law be 
greater or    less than here            
represented1 they exist in the nature of
 things1 and    cannot be removed4      
,legislation1 instead of removing1 only 
increases    them4 ,this it does by     
innovating upon natural truths and      
principles1    and introducing jargon   
and contradiction1 in the place of      
order1    analogy1 consistency1 and     
uniformity4     ,further than this2     
legislation does not even profess to    
remove the    obscurity of natural law4 
,that is no part of its object4 ,it only

    professes to substitute something   
arbitrary in the place of natural       
law4 ,legislators generally have the    
sense to see that legislation    will   
not make natural law any clearer than it
 is4 ,neither is it the    object of    
legislation to establish the authority  
of natural law4    ,legislators have the
 sense to see that they can add nothing 
to the    authority of natural law1 and 
that it will stand on its own           
authority1 unless they overturn it4     
,the whole object of legislation1       
excepting that legislation which        
merely makes regulations1 and provides  
instrumentalities for carrying    other 
laws into effect1 is to overturn natural
 law1 and substitute    for it the      
arbitrary will of power4 ,in other      
words1 the whole object    of it is to  
destroy men's rights4 ,at least1 such is
 its only effect2    and its designs    
must be inferred from its effect4       
,taking all the    statutes in the      
country1 there probably is not one in a 

hundred1--except the auxiliary ones just
 mentioned1--that does not    violate   
natural law2 that does not invade some  
right or other4     ,yet the advocates  
of arbitrary legislation are continually
 practising    the fraud of pretending  
that unless the legislature make the    
laws1    the laws will not be known4    
,the whole object of the fraud is to    
secure to the government the authority  
of making laws that never    ought to be
 known4  ,in addition to the authority  
already cited1 of ,sir ,william ,jones1 
as to the certainty of natural law1 and 
the uniformity of men's opinions in     
regard to it1 ,i may add the following3 
,there is that great simplicity and     
plainness in the ,common ,law1 that     
,lord ,coke has gone so far as to       
assert1 7and ,lord ,bacon nearly        
seconds him in observing17 that 'he     
never knew two questions arise    merely
 upon common law2 but that they were    
mostly owing to statutes    ill-penned  
and overladen with provisos4'--#c       

,eunomus1 #aeg-h4  ,if it still be said 
that juries would disagree1 as to what  
was natural justice1 and that one jury  
would decide one way1 and another jury  
another2 the answer is1 that such a     
thing is hardly credible1 as that twelve
 men1 taken at random from the people at
 large1 should unanimously decide a     
question of natural justice one way1 and
 that twelve other men1 selected in the 
same manner1 should unanimously decide  
the same question the other way1 unless 
they were misled by the justices4 ,if1  
however1 such things should sometimes   
happen1 from any cause whatever1 the    
remedy is by appeal1 and new trial4     
,footnote #gc3 ,judges do not even live 
up to that part of their own maxim1     
which requires jurors to try the matter 
of fact4 ,by dictating to them the laws 
of evidence1--that is1 by dictating what
 evidence they may hear1 and what they  
may not hear1 and also by dictating to  
them rules for weighing such evidence as
 they permit them to hear1--they of     

necessity dictate the conclusion to     
which they shall arrive4 ,and thus the  
court really tries the question of fact1
 as well as the question of law1 in     
every cause4 ,it is clearly impossible1 
in the nature of things1 for a jury to  
try a question of fact1 without trying  
every question of law on which the fact 
depends4  ,footnote #gd3 ,most          
disagreements of juries are on matters  
of fact1 which are admitted to be within
 their province4 ,we have little or no  
evidence of their disagreements on      
matters of natural justice4 ,the        
disagreements of courts on matters of   
law1 afford little or no evidence that  
juries would also disagree on matters of
 law--that is1 of justice2 because the  
disagreements of courts are generally on
 matters of legislation1 and not on     
those principles of abstract justice1 by
 which juries would be governed1 and in 
regard to which the minds of men are    
nearly unanimous4  ,footnote #ge3 ,this 
is the principle of all voluntary       

associations whatsoever4 ,no voluntary  
association was ever formed1 and in the 
nature of things there never can be one 
formed1 for the accomplishment of any   
objects except those in which all the   
parties to the association are agreed4  
,government1 therefore1 must be kept    
within these limits1 or it is no longer 
a voluntary association of all who      
contribute to its support1 but a mere   
tyranny established by a part over the  
rest4  ,all1 or nearly all1 voluntary   
associations give to a majority1 or to  
some other portion of the members less  
than the whole1 the right to use some   
limited discretion as to the means to be
 used to accomplish the ends in view2   
but the ends themselves to be           
accomplished are always precisely       
defined1 and are such as every member   
necessarily agrees to1 else he would not
 voluntarily join the association4      
,justice is the object of government1   
and those who support the government1   
must be agreed as to the justice to be  

executed by it1 or they cannot          
rightfully unite in maintaining the     
government itself4  ,footnote #gf3      
,jones on ,bailments1 #acc4  ,footnote  
#gg3 ,kent1 describing the difficulty of
 construing the written law1 says3      
,such is the imperfection of language1  
and the want of technical skill in the  
makers of the law1 that statutes often  
give occasion to the most perplexing and
 distressing doubts and discussions1    
arising from the ambiguity that attends 
them4 ,it requires great experience1 as 
well as the command of a perspicuous    
diction1 to frame a law in such clear   
and precise terms1 as to secure it from 
ambiguous expressions1 and from all     
doubts and criticisms upon its          
meaning4--,kent1 #dfj4  ,the following  
extract from a speech of ,lord          
,brougham1 in the ,house of ,lords1     
confesses the same difficulty3  ,there  
was another subject1 well worthy of the 
consideration of government during the  
recess1--the expediency1 or rather the  

absolute necessity1 of some arrangement 
for the preparation of bills1 not merely
 private1 but public bills1 in order    
that legislation might be consistent and
 systematic1 and that the courts might  
not have so large a portion of their    
time occupied in endeavoring to construe
 acts of ,parliament1 in many cases     
unconstruable1 and in most cases        
difficult to be construed4--,law        
,reporter1 #ahdh1 p4 #ebe4  ,footnote   
#gh3 ,this condemnation of written laws 
must1 of course1 be understood as       
applying only to cases where principles 
and rights are involved1 and not as     
condemning any governmental             
arrangements1 or instrumentalities1 that
 are consistent with natural right1 and 
which must be agreed upon for the       
purpose of carrying natural law into    
effect4 ,these things may be varied1 as 
expediency may dictate1 so only that    
they be allowed to infringe no principle
 of justice4 ,and they must1 of course1 
be written1 because they do not exist as

 fixed principles1 or laws in nature4   
,,chapter ,,vi4  ,,juries ,,of ,,the    
,,present ,,day ,,illegal4   ,it may    
probably be safely asserted that there  
are1 at this day1 no legal juries1      
either in ,england or ,america4 ,and if 
there are no legal juries1 there is1 of 
course1 no legal trial1 nor judgment1 by
 jury4  ,in saying that there are       
probably no legal juries1 ,i mean that  
there are probably no juries appointed  
in conformity with the principles of the
 common law4  ,the term jury is a       
technical one1 derived from the common  
law2 and when the ,american             
constitutions provide for the trial by  
jury1 they provide for the common law   
trial by jury2 and not merely for any   
trial by jury that the government itself
 may chance to invent1 and call by that 
name4 ,it is the thing1 and not merely  
the name1 that is guarantied4 ,any      
legislation1 therefore1 that infringes  
any essential principle of the common   
law1 in the selection of jurors1 is     

unconstitutional2 and the juries        
selected in accordance with such        
legislation are1 of course1 illegal1 and
 their judgments void4  ,it will also be
 shown1 in a subsequent chapter1#gi that
 since ,magna ,carta1 the legislative   
power in ,england 7whether king or      
parliament7 has never had any           
constitutional authority to infringe1 by
 legislation1 any essential principle of
 the common law in the selection of     
jurors4 ,all such legislation is as much
 unconstitutional and void1 as though it
 abolished the trial by jury altogether4
 ,in reality it does abolish it4  ,what1
 then1 are the essential principles of  
the common law1 controlling the         
selection of jurors8  ,they are two4    
#a4 ,that all the freemen1 or adult male
 members of the state1 shall be eligible
 as jurors4#hj  ,any legislation which  
requires the selection of jurors to be  
made from a less number of freemen than 
the whole1 makes the jury selected an   
illegal one4  ,if a part only of the    

freemen1 or members of the state1 are   
eligible as jurors1 the jury no longer  
represent the country1 but only a part  
of the country4  ,if the selection of   
jurors can be restricted to any less    
number of freemen than the whole1 it can
 be restricted to a very small          
proportion of the whole2 and thus the   
government be taken out of the hands of 
the country1 or the whole people1 and be
 thrown into the hands of a few4  ,that1
 at common law1 the whole body of       
freemen were eligible as jurors is      
sufficiently proved1 not only by the    
reason of the thing1 but by the         
following evidence3  #a4 ,everybody must
 be presumed eligible1 until the        
contrary be shown4 ,we have no evidence1
 that ,i am aware of1 of a prior date to
 ,magna ,carta1 to disprove that all    
freemen were eligible as jurors1 unless 
it be the law of ,ethelred1 which       
requires that they be elderly#ha men4   
,since no specific age is given1 it is  
probable1 ,i think1 that this statute   

meant nothing more than that they be    
more than twenty-one years old4 ,if it  
meant anything more1 it was probably    
contrary to the common law1 and         
therefore void4  #b4 ,since ,magna      
,carta1 we have evidence showing quite  
conclusively that all freemen1 above the
 age of twenty-one years1 were eligible 
as jurors4  ,the ,mirror of ,justices1  
7written within a century after ,magna  
,carta17 in the section ,of             
,judges--that is1 jurors--says3     ,all
 those who are not forbidden by law may 
be judges 7jurors74 ,to    women it is  
forbidden by law that they be judges2   
and thence it is1    that feme coverts  
are exempted to do suit in inferior     
courts4 ,on the    other part1 a villein
 cannot be a judge1 by reason of the two
    estates1 which are repugnants2      
persons attainted of false judgments    
cannot be judges1 nor infants1 nor any  
under the age of twenty-one    years1   
nor infected persons1 nor idiots1 nor   
madmen1 nor deaf1 nor    dumb1 nor      

parties in the pleas1 nor men           
excommunicated by the bishop1    nor    
criminal persons4 99 99 ,and those who  
are not of the ,christian    faith      
cannot be judges1 nor those who are out 
of the king's    allegiance4--,mirror of
 ,justices1 #ei-fj4  ,in the section ,of
 ,inferior ,courts1 it is said3         
,from the first assemblies came         
consistories1 which we now call         
courts1 and that in divers places1 and  
in divers manners2 whereof the          
sheriffs held one monthly1 or every five
 weeks1 according to the    greatness or
 largeness of the shires4 ,and these    
courts are called    county courts1     
where the judgment is by the suitors1 if
 there be no    writ1 and is by warrant 
of jurisdiction ordinary4 ,the other    
inferior    courts are the courts of    
every lord of the fee1 to the likeness  
of    the hundred courts4 99 99 ,there  
are other inferior courts which the     
bailiffs hold in every hundred1 from    
three weeks to three weeks1 by    the   

suitors of the freeholders of the       
hundred4 ,all the tenants within    the 
fees are bounden to do their suit there1
 and that not for the    service of     
their persons1 but for the service of   
their fees4 ,but    women1 infants      
within the age of twenty-one years1     
deaf1 dumb1    idiots1 those who are    
indicted or appealed of mortal felony1  
before    they be acquitted1 diseased   
persons1 and excommunicated persons are 
exempted from doing suit4--,mirror of   
,justices1 #ej-ea4  ,in the section ,of 
the ,sheriff's ,turns1 it is said3      
,the sheriffs by ancient ordinances hold
 several meetings twice in    the year  
in every hundred2 where all the         
freeholders within the    hundred are   
bound to appear for the service of their
 fees4--,mirror    of ,justices1 #ej4   
,the following statute was passed by    
,edward ,i41 seventy years after ,magna 
,carta3     ,forasmuch also as sheriffs1
 hundreders1 and bailiffs of liberties1 
have used to grieve those which be      

placed under them1 putting in    assizes
 and juries men diseased and decrepit1  
and having continual or    sudden       
disease2 and men also that dwelled not  
in the country at the    time of the    
summons2 and summon also an unreasonable
 number of    jurors1 for to extort     
money from some of them1 for letting    
them go    in peace1 and so the assizes 
and juries pass many times by poor men1 
and the rich abide at home by reason of 
their bribes2 it is ordained    that    
from henceforth in one assize no more   
shall be summoned than    four and      
twenty2 and old men above three score   
and ten years1 being    continually     
sick1 or being diseased at the time of  
the summons1 or    not dwelling in that 
country1 shall not be put in juries of  
petit    assizes4--,st4 #ac ,edward ,i41
 ch4 #ch4 7#abhe47  ,although this      
command to the sheriffs and other       
officers1 not to summon1 as jurors1     
those who1 from age and disease1 were   
physically incapable of performing the  

duties1 may not1 of itself1 afford any  
absolute or legal implication1 by which 
we can determine precisely who were1 and
 who were not1 eligible as jurors at    
common law1 yet the exceptions here made
 nevertheless carry a seeming confession
 with them that1 at common law1 all male
 adults were eligible as jurors4  ,but  
the main principle of the feudal system 
itself shows that all the full and free 
adult male members of the state--that   
is1 all who were free born1 and had not 
lost their civil rights by crime1 or    
otherwise--must1 at common law1 have    
been eligible as jurors4 ,what was that 
principle8 ,it was1 that the state      
rested for support upon the land1 and   
not upon taxation levied upon the people
 personally4 ,the lands of the country  
were considered the property of the     
state1 and were made to support the     
state in this way4 ,a portion of them   
was set apart to the king1 the rents of 
which went to pay his personal and      
official expenditures1 not including the

 maintenance of armies1 or the          
administration of justice4 ,war and the 
administration of justice were provided 
for in the following manner4 ,the       
freemen1 or the freeborn adult male     
members of the state--who had not       
forfeited their political rights--were  
entitled to land of right1 7until all   
the land was taken up17 on condition of 
their rendering certain military and    
civil services to the state4 ,the       
military services consisted in serving  
personally as soldiers1 or contributing 
an equivalent in horses1 provisions1 or 
other military supplies4 ,the civil     
services consisted1 among other things1 
in serving as jurors 7and1 it would     
appear1 as witnesses7 in the courts of  
justice4 ,for these services they       
received no compensation other than the 
use of their lands4 ,in this way the    
state was sustained2 and the king had no
 power to levy additional burdens or    
taxes upon the people4 ,the persons     
holding lands on these terms were called

 freeholders--in later times            
freemen--meaning free and full members  
of the state4  ,now1 as the principle of
 the system was that the freeholders    
held their lands of the state1 on the   
condition of rendering these military   
and civil services as rents for their   
lands1 the principle implies that all   
the freeholders were liable to these    
rents1 and were therefore eligible as   
jurors4 ,indeed1 ,i do not know that it 
has ever been doubted that1 at common   
law1 all the freeholders were eligible  
as jurors4 ,if all had not been         
eligible1 we unquestionably should have 
had abundant evidence of the exceptions4
 ,and if anybody1 at this day1 allege   
any exceptions1 the burden will be on   
him to prove them4 ,the presumption     
clearly is that all were eligible4  ,the
 first invasion1 which ,i find made1 by 
the ,english statutes1 upon this common 
law principle1 was made in #abhe1       
seventy years after ,magna ,carta4 ,it  
was then enacted as follows3     ,nor   

shall any be put in assizes or juries1  
though they ought to be    taken in     
their own shire1 that hold a tenement of
 less than the value    of twenty       
shillings yearly4 ,and if such assizes  
and juries be taken    out of the shire1
 no one shall be placed in them who     
holds a tenement    of less value than  
forty shillings yearly at the least1    
except such    as be witnesses in deeds 
or other writings1 whose presence is    
necessary1 so that they be able to      
travel4--,st4 #ac ,edward ,i41 ch4      
#ch4 7#abhe47  ,the next invasion of the
 common law1 in this particular1 was    
made in #adad1 about two hundred years  
after ,magna ,carta1 when it was        
enacted3     ,that no person shall be   
admitted to pass in any inquest upon    
trial    of the death of a man1 nor in  
any inquest betwixt party and party in  
plea real1 nor in plea personal1 whereof
 the debt or the damage    declared     
amount to forty marks1 if the same      
person have not lands or    tenements of

 the yearly value of forty shillings    
above all charges    of the same4--#b   
,henry ,v41 st4 #b1 ch4 #c4 7#adad47    
,other statutes on this subject of the  
property qualifications of jurors1 are  
given in the note4#hb  ,from these      
statutes it will be seen that1 since    
#abhe1 seventy years after ,magna       
,carta1 the common law right of all free
 ,british subjects to eligibility as    
jurors has been abolished1 and the      
qualifications of jurors have been made 
a subject of arbitrary legislation4 ,in 
other words1 the government has usurped 
the authority of selecting the jurors   
that were to sit in judgment upon its   
own acts4 ,this is destroying the vital 
principle of the trial by jury itself1  
which is that the legislation of the    
government shall be subjected to the    
judgment of a tribunal1 taken           
indiscriminately from the whole people1 
without any choice by the government1   
and over which the government can       
exercise no control4 ,if the government 

can select the jurors1 it will1 of      
course1 select those whom it supposes   
will be favorable to its enactments4    
,and an exclusion of any of the freemen 
from eligibility is a selection of those
 not excluded4  ,it will be seen1 from  
the statutes cited1 that the most       
absolute authority over the jury        
box--that is1 over the right of the     
people to sit in juries--has been       
usurped by the government2 that the     
qualifications of jurors have been      
repeatedly changed1 and made to vary    
from a freehold of ten shillings yearly1
 to one of twenty pounds by the year at 
least above reprises4 ,they have also   
been made different1 in the counties of 
,southampton1 ,surrey1 and ,sussex1 from
 what they were in the other counties2  
different in ,wales from what they were 
in ,england2 and different in the city  
of ,london1 and in the county of        
,middlesex1 from what they were in any  
other part of the kingdom4  ,but this is
 not all4 ,the government has not only  

assumed arbitrarily to classify the     
people1 on the basis of property1 but it
 has even assumed to give to some of its
 judges entire and absolute personal    
discretion in the selection of the      
jurors to be impanelled in criminal     
cases1 as the following statutes show4  
,be it also ordained and enacted by the 
same authority1 that all    panels      
hereafter to be returned1 which be not  
at the suit of any    party1 that shall 
be made and put in afore any justice of 
gaol    delivery or justices of peace in
 their open sessions to inquire for     
the king1 shall hereafter be reformed by
 additions and taking out of    names of
 persons by discretion of the same      
justices before whom such    panel shall
 be returned2 and the same justices     
shall hereafter    command the sheriff1 
or his ministers in his absence1 to put 
other    persons in the same panel by   
their discretions2 and that panel so    
hereafter to be made1 to be good and    
lawful4 ,this act to endure only    to  

the next ,parliament4--#aa ,henry       
,,vii41 ch4 #bd1 sec4 #f4 7#adie47      
,this act was continued in force by #a  
,henry ,,viii41 ch4 #aa1 7#aeji17 to the
 end of the then next ,parliament4  ,it 
was renacted1 and made perpetual1 by #c 
,henry ,,viii41 ch4 #ab4 7#aeaa47       
,these acts gave unlimited authority to 
the king's justices to pack juries at   
their discretion2 and abolished the last
 vestige of the common law right of the 
people to sit as jurors1 and judge of   
their own liberties1 in the courts to   
which the acts applied4  ,yet1 as       
matters of law1 these statutes were no  
more clear violations of the common law1
 the fundamental and paramount law of   
the land1 than were those statutes which
 affixed the property qualifications    
before named2 because1 if the king1 or  
the government1 can select the jurors on
 the ground of property1 it can select  
them on any other ground whatever4  ,any
 infringement or restriction of the     
common law right of the whole body of   

the freemen of the kingdom to           
eligibility as jurors1 was legally an   
abolition of the trial by jury itself4  
,the juries no longer represented the   
country1 but only a part of the country2
 that part1 too1 on whose favor the     
government chose to rely for the        
maintenance of its power1 and which it  
therefore saw fit to select as being the
 most reliable instruments for its      
purposes of oppression towards the rest4
 ,and the selection was made on the same
 principle1 on which tyrannical         
governments generally select their      
supporters1 viz41 that of conciliating  
those who would be most dangerous as    
enemies1 and most powerful as           
friends--that is1 the wealthy4#hc       
,these restrictions1 or indeed any one  
of them1 of the right of eligibility as 
jurors1 was1 in principle1 a complete   
abolition of the ,english constitution2 
or1 at least1 of its most vital and     
valuable part4 ,it was1 in principle1 an
 assertion of a right1 on the part of   

the government1 to select the           
individuals who were to determine the   
authority of its own laws1 and the      
extent of its own powers4 ,it was1      
therefore1 in effect1 the assertion of a
 right1 on the part of the government   
itself1 to determine its own powers1 and
 the authority of its own legislation1  
over the people2 and a denial of all    
right1 on the part of the people1 to    
judge of or determine their own         
liberties against the government4 ,it   
was1 therefore1 in reality1 a           
declaration of entire absolutism on the 
part of the government4 ,it was an act  
as purely despotic1 in principle1 as    
would have been the express abolition of
 all juries whatsoever4 ,by the law of  
the land1 which the kings were sworn to 
maintain1 every free adult male ,british
 subject was eligible to the jury box1  
with full power to exercise his own     
judgment as to the authority and        
obligation of every statute of the king1
 which might come before him4 ,but the  

principle of these statutes 7fixing the 
qualifications of jurors7 is1 that      
nobody is to sit in judgment upon the   
acts or legislation of the king1 or the 
government1 except those whom the       
government itself shall select for that 
purpose4 ,a more complete subversion of 
the essential principles of the ,english
 constitution could not be devised4     
,the juries of ,england are illegal for 
another reason1 viz41 that the statutes 
cited require the jurors 7except in     
,london and a few other places7 to be   
freeholders4 ,all the other free        
,british subjects are excluded2 whereas1
 at common law1 all such subjects are   
eligible to sit in juries1 whether they 
be freeholders or not4  ,it is true1 the
 ancient common law required the jurors 
to be freeholders2 but the term         
freeholder no longer expresses the same 
idea that it did in the ancient common  
law2 because no land is now holden in   
,england on the same principle1 or by   
the same tenure1 as that on which all   

the land was held in the early times of 
the common law4  ,as has heretofore been
 mentioned1 in the early times of the   
common law the land was considered the  
property of the state2 and was all      
holden by the tenants1 so called1 7that 
is1 holders17 on the condition of their 
rendering certain military and civil    
services to the state1 7or to the king  
as the representative of the state17    
under the name of rents4 ,those who held
 lands on these terms were called free  
tenants1 that is1 free holders--meaning 
free persons1 or members of the state1  
holding lands--to distinguish them from 
villeins1 or serfs1 who were not members
 of the state1 but held their lands by a
 more servile tenure1 and also to       
distinguish them from persons of foreign
 birth1 outlaws1 and all other persons1 
who were not members of the state4      
,every freeborn adult male ,englishman  
7who had not lost his civil rights by   
crime or otherwise7 was entitled to land
 of right2 that is1 by virtue of his    

civil freedom1 or membership of the body
 politic4 ,every member of the state was
 therefore a freeholder2 and every      
freeholder was a member of the state4   
,and the members of the state were      
therefore called freeholders4 ,but what 
is material to be observed1 is1 that a  
man's right to land was an incident to  
his civil freedom2 not his civil freedom
 an incident to his right to land4 ,he  
was a freeholder because he was a       
freeborn member of the state2 and not a 
freeborn member of the state because he 
was a freeholder2 for this last would be
 an absurdity4  ,as the tenures of lands
 changed1 the term freeholder lost its  
original significance1 and no longer    
described a man who held land of the    
state by virtue of his civil freedom1   
but only one who held it in             
fee-simple--that is1 free of any        
liability to military or civil services4
 ,but the government1 in fixing the     
qualifications of jurors1 has adhered to
 the term freeholder after that term has

 ceased to express the thing originally 
designated by it4  ,the principle1 then1
 of the common law1 was1 that every     
freeman1 or freeborn male ,englishman1  
of adult age1 c41 was eligible to sit in
 juries1 by virtue of his civil freedom1
 or his being a member of the state1 or 
body politic4 ,but the principle of the 
present ,english statutes is1 that a man
 shall have a right to sit in juries    
because he owns lands in fee-simple4 ,at
 the common law a man was born to the   
right to sit in juries4 ,by the present 
statutes he buys that right when he buys
 his land4 ,and thus this1 the greatest 
of all the political rights of an       
,englishman1 has become a mere article  
of merchandise2 a thing that is bought  
and sold in the market for what it will 
bring4  ,of course1 there can be no     
legality in such juries as these2 but   
only in juries to which every free or   
natural born adult male ,englishman is  
eligible4  ,the second essential        
principle of the common law1 controlling

 the selection of jurors1 is1 that when 
the selection of the actual jurors comes
 to be made1 7from the whole body of    
male adults17 that selection shall be   
made in some mode that excludes the     
possibility of choice on the part of the
 government4  ,of course1 this principle
 forbids the selection to be made by any
 officer of the government4  ,there seem
 to have been at least three modes of   
selecting the jurors1 at the common law4
 #a4 ,by lot4#hd #b4 ,two knights1 or   
other freeholders1 were appointed1      
7probably by the sheriff17 to select the
 jurors4 #c4 ,by the sheriff1 bailiff1  
or other person1 who held the court1 or 
rather acted as its ministerial officer4
 ,probably the latter mode may have been
 the most common1 although there may be 
some doubt on this point4  ,at the      
common law the sheriffs1 bailiffs1 and  
other officers were chosen by the       
people1 instead of being appointed by   
the king4 7#d ,blackstone1 #dac4        
,introduction to ,gilbert's ,history of 

the ,common ,pleas1 p4 #b1 note1 and p4 
#d47 ,this has been shown in a former   
chapter4#he ,at common law1 therefore1  
jurors selected by these officers were  
legally selected1 so far as the         
principle now under discussion is       
concerned2 that is1 they were not       
selected by any officer who was         
dependent on the government4  ,but in   
the year #acae1 one hundred years after 
,magna ,carta1 the choice of sheriffs   
was taken from the people1 and it was   
enacted3     ,that the sheriffs shall   
henceforth be assigned by the           
chancellor1    treasurer1 barons of the 
exchequer1 and by the justices4 ,and in 
the    absence of the chancellor1 by the
 treasurer1 barons and    justices4--#i 
,edward ,,ii41 st4 #b4 7#acae47  ,these 
officers1 who appointed the sheriffs1   
were themselves appointed by the king1  
and held their offices during his       
pleasure4 ,their appointment of sheriffs
 was1 therefore1 equivalent to an       
appointment by the king himself4 ,and   

the sheriffs1 thus appointed1 held their
 offices only during the pleasure of the
 king1 and were of course mere tools of 
the king2 and their selection of jurors 
was really a selection by the king      
himself4 ,in this manner the king       
usurped the selection of the jurors who 
were to sit in judgment upon his own    
laws4  ,here1 then1 was another         
usurpation1 by which the common law     
trial by jury was destroyed1 so far as  
related to the county courts1 in which  
the sheriffs presided1 and which were   
the most important courts of the        
kingdom4 ,from this cause alone1 if     
there were no other1 there has not been 
a legal jury in a county court in       
,england1 for more than five hundred    
years4  ,in nearly or quite all the     
,states of the ,united ,states the      
juries are illegal1 for one or the other
 of the same reasons that make the      
juries in ,england illegal4  ,in order  
that the juries in the ,united ,states  
may be legal--that is1 in accordance    

with the principles of the common       
law--it is necessary that every adult   
male member of the state should have his
 name in the jury box1 or be eligible as
 a juror4 ,yet this is the case in      
hardly a single state4  ,in ,new        
,jersey1 ,maryland1 ,north ,carolina1   
,tennessee1 and ,mississippi1 the jurors
 are required to be freeholders4 ,but   
this requirement is illegal1 for the    
reason that the term freeholder1 in this
 country1 has no meaning analogous to   
the meaning it had in the ancient common
 law4  ,in ,arkansas1 ,missouri1        
,indiana1 and ,alabama1 jurors are      
required to be freeholders or           
householders4 ,each of these            
requirements is illegal4  ,in ,florida1 
they are required to be householders4   
,in ,connecticut1 ,maine1 ,ohio1 and    
,georgia1 jurors are required to have   
the qualifications of electors4  ,in    
,virginia1 they are required to have a  
property qualification of one hundred   
dollars4  ,in ,maine1 ,massachusetts1   

,vermont1 ,connecticut1 ,new ,york1     
,ohio1 ,indiana1 ,michigan1 and         
,wisconsin1 certain civil authorities of
 the towns1 cities1 and counties are    
authorized to select1 once in one1 two1 
or three years1 a certain number of the 
people--a small number compared with the
 whole--from whom jurors are to be taken
 when wanted2 thus disfranchising all   
except the few thus selected4  ,in      
,maine and ,vermont1 the inhabitants1 by
 vote in town meeting1 have a veto upon 
the jurors selected by the authorities  
of the town4  ,in ,massachusetts1 the   
inhabitants1 by vote in town meeting1   
can strike out any names inserted by the
 authorities1 and insert others2 thus   
making jurors elective by the people1   
and1 of course1 representatives only of 
a majority of the people4  ,in          
,illinois1 the jurors are selected1 for 
each term of court1 by the county       
commissioners4  ,in ,north ,carolina1   
the courts of pleas and quarter sessions
 99 99 shall select the names of such   

persons only as are freeholders1 and as 
are well qualified to act as jurors1 c42
 thus giving the courts power to pack   
the juries4--7,revised ,statutes1 #adg47
  ,in ,arkansas1 too1 ,it shall be the  
duty of the county court of each county 
99 99 to make out and cause to be       
delivered to the sheriff a list of not  
less than sixteen1 nor more than        
twenty-three persons1 qualified to serve
 as grand jurors2 and the sheriff is to 
summon such persons to serve as grand   
jurors4  ,in ,tennessee1 also1 the      
jurors are to be selected by the county 
courts4  ,in ,georgia1 the jurors are to
 be selected by the justices of the     
inferior courts of each county1 together
 with the sheriff and clerk1 or a       
majority of them4  ,in ,alabama1 the    
sheriff1 judge of the county court1 and 
clerks of the circuit and county courts1
 or a majority of them1 select the      
jurors4  ,in ,virginia1 the jurors are  
selected by the sheriffs2 but the       
sheriffs are appointed by the governor  

of the state1 and that is enough to make
 the juries illegal4 ,probably the same 
objection lies against the legality of  
the juries in some other states4  ,how  
jurors are appointed1 and what are their
 qualifications1 in ,new ,hampshire1    
,rhode ,island1 ,pennsylvania1          
,delaware1 ,south ,carolina1 ,kentucky1 
,iowa1 ,texas1 and ,california1 ,i know 
not4 ,there is little doubt that there  
is some valid objection to them1 of the 
kinds already suggested1 in all these   
states4  ,in regard to jurors in the    
courts of the ,united ,states1 it is    
enacted1 by act of ,congress3     ,that 
jurors to serve in the courts of the    
,united ,states1 in each    state       
respectively1 shall have the like       
qualifications1 and be    entitled to   
the like exemptions1 as jurors of the   
highest court of    law of such state   
now have and are entitled to1 and shall 
hereafter1    from time to time1 have   
and be entitled to1 and shall be        
designated    by ballot1 lot1 or        

otherwise1 according to the mode of     
forming such    juries now practised and
 hereafter to be practised therein1 in  
so far    as such mode may be           
practicable by the courts of the ,united
 ,states1    or the officers thereof2   
and for this purpose1 the said courts   
shall    have power to make all         
necessary rules and regulations for     
conforming    the designation and       
empanelling of jurors1 in substance1 to 
the laws    and usages now in force in  
such state2 and1 further1 shall have    
power1 by rule or order1 from time to   
time1 to conform the same to    any     
change in these respects which may be   
hereafter adopted by the    legislatures
 of the respective states for the state 
courts4--,st4    #ahdj1 ch4 #dg1        
,statutes at ,large1 vol4 #e1 p4 #cid4  
,in this corrupt and lawless manner1    
,congress1 instead of taking care to    
preserve the trial by jury1 so far as   
they might1 by providing for the        
appointment of legal                    

juries--incomparably the most important 
of all our judicial tribunals1 and the  
only ones on which the least reliance   
can be placed for the preservation of   
liberty--have given the selection of    
them over entirely to the control of an 
indefinite number of state legislatures1
 and thus authorized each state         
legislature to adapt the juries of the  
,united ,states to the maintenance of   
any and every system of tyranny that may
 prevail in such state4  ,congress have 
as much constitutional right to give    
over all the functions of the ,united   
,states government into the hands of the
 state legislatures1 to be exercised    
within each state in such manner as the 
legislature of such state shall please  
to exercise them1 as they have to thus  
give up to these legislatures the       
selection of juries for the courts of   
the ,united ,states4  ,there has1       
probably1 never been a legal jury1 nor a
 legal trial by jury1 in a single court 
of the ,united ,states1 since the       

adoption of the constitution4  ,these   
facts show how much reliance can be     
placed in written constitutions1 to     
control the action of the government1   
and preserve the liberties of the       
people4  ,if the real trial by jury had 
been preserved in the courts of the     
,united ,states--that is1 if we had had 
legal juries1 and the jurors had known  
their rights--it is hardly probable that
 one tenth of the past legislation of   
,congress would ever have been enacted1 
or1 at least1 that1 if enacted1 it could
 have been enforced4  ,probably the best
 mode of appointing jurors would be     
this3 ,let the names of all the adult   
male members of the state1 in each      
township1 be kept in a jury box1 by the 
officers of the township2 and when a    
court is to be held for a county or     
other district1 let the officers of a   
sufficient number of townships be       
required 7without seeing the names7 to  
draw out a name from their boxes        
respectively1 to be returned to the     

court as a juror4 ,this mode of         
appointment would guard against         
collusion and selection2 and juries so  
appointed would be likely to be a fair  
epitome of the country4  ,footnote #gi3 
,on the ,english ,constitution4         
,footnote #hj3 ,although all the freemen
 are legally eligible as jurors1 any one
 may nevertheless be challenged and set 
aside1 at the trial1 for any special    
personal disqualification2 such as      
mental or physical inability to perform 
the duties2 having been convicted1 or   
being under charge1 of crime2 interest1 
bias1 c4 ,but it is clear that the      
common law allows none of these points  
to be determined by the court1 but only 
by triers4  ,footnote #ha3 ,what was the
 precise meaning of the ,saxon word1    
which ,i have here called elderly1 ,i do
 not know4 ,in the ,latin translations  
it is rendered by seniores1 which may   
perhaps mean simply those who have      
attained their majority4  ,footnote #hb3
 ,in #adhc it was enacted1 by a statute 

entitled ,of what credit and estate     
those jurors must be which shall be     
impanelled in the ,sheriff's ,turn4     
,that no bailiff nor other officer from 
henceforth return or impanel    any such
 person in any shire of ,england1 to be 
taken or put in or    upon any inquiry  
in any of the said ,turns1 but such as  
be of good    name and fame1 and having 
lands and tenements of freehold within  
the    same shires1 to the yearly value 
of twenty shillings at the least1    or 
else lands and tenements holden by      
custom of manor1 commonly    called     
copy-hold1 within the said shires1 to   
the yearly value of    twenty-six       
shillings eight pence over all charges  
at the least4--#a    ,richard ,,iii41   
ch4 #d4 7#adhc47     ,in #adhf it was   
enacted1 ,that the justices of the peace
 of every    shire of this realm for the
 time being may take1 by their          
discretion1    an inquest1 whereof every
 man shall have lands and tenements to  
the    yearly value of forty shillings  

at the least1 to inquire of the         
concealments of others1 c41 c4--#c      
,henry ,,vii41 ch4 #a 7#adhf47  ,a      
statute passed in #adid1 in regard to   
jurors in the city of ,london1 enacts3  
,that no person nor persons hereafter be
 impanelled1 summoned1 or    sworn in   
any jury or inquest in courts within the
 same city1 7of    ,london17 except he  
be of lands1 tenements1 or goods and    
chattels1 to    the value of forty      
marks2#hf and that no person or persons 
hereafter be impanelled1 summoned1 nor  
sworn in any jury or inquest    in any  
court within the said city1 for lands or
 tenements1 or action    personal1      
wherein the debt or damage amounteth to 
the sum of forty    marks1 or above1    
except he be in lands1 tenements1 goods1
 or    chattels1 to the value of one    
hundred marks4--#aa ,henry ,,vii41 ch4  
#ba4 7#adid47  ,the statute #d ,henry   
,,viii41 ch4 #c1 sec4 #d1 7#aeab7       
requires jurors in ,london to have goods
 to the value of one hundred marks4     

,in #adid it was enacted that ,it shall 
be lawful to every sheriff of    the    
counties of ,southampton1 ,surrey1 and  
,sussex1 to impanel and    summons      
twenty-four lawful men of such1         
inhabiting within the    precinct of his
 or their turns1 as owe suit to the same
 turn1 whereof    every one hath lands  
or freehold to the yearly value of ten  
shillings1 or copy-hold lands to the    
yearly value of thirteen    shillings   
four pence1 above all charges within any
 of the said    counties1 or men of less
 livelihood1 if there be not so many    
there1    notwithstanding the statute of
 #a ,richard ,,iii41 ch4 #d4 ,to endure 
to    the next parliament4--#aa ,henry  
,,vii41 ch4 #bf4 7#adid47  ,this statute
 was continued in force by #ai ,henry   
,,vii41 ch4 #af4 7#aejc47     ,in #aeca 
it was enacted1 ,that every person or   
persons1 being the    king's natural    
subject born1 which either by the name  
of citizen1 or    of a freeman1 or any  
other name1 doth enjoy and use the      

liberties and    privileges of any city1
 borough1 or town corporate1 where he   
dwelleth    and maketh his abode1 being 
worth in movable goods and substance to 
the clear value of forty pounds1 be     
henceforth admitted in trials    of     
murders and felonies in every sessions  
and gaol delivery1 to be    kept and    
holden in and for the liberty of such   
cities1 boroughs1 and    towns          
corporate1 albeit they have no freehold2
 any act1 statute1 use1    custom1 or   
ordinance to the contrary hereof        
notwithstanding4--#bc    ,henry ,,viii41
 ch4 #ac4 7#aeca47     ,in #aehe it was 
enacted1 ,that in all cases where any   
jurors to be    returned for trial of   
any issue or issues joined in any of the
    ,queen's majesty's courts of ,king's
 ,bench1 ,common ,pleas1 and the        
,exchequer1 or before justices of       
assize1 by the laws of this realm    now
 in force1 ought to have estate of      
freehold in lands1 tenements1    or     
hereditaments1 of the clear yearly value

 of forty shillings1    that in every   
such case the jurors that shall be      
returned from and    after the end of   
this present session of parliament1     
shall every of    them have estate of   
freehold in lands1 tenements1 or        
hereditaments1    to the clear yearly   
value of four pounds at the least4--#bg 
,elizabeth1 ch4 #f4 7#aehe47     ,in    
#affd-e it was enacted1 ,that all jurors
 7other than strangers upon    trials   
per medietatem lingu7 who are to be     
returned for the trials    of issues    
joined in any of 7his7 majesty's courts 
of king's bench1    common pleas1 or the
 exchequer1 or before justices of       
assize1 or nisi    prius1 oyer and      
terminer1 gaol delivery1 or general or  
quarter    sessions of the peace1 from  
and after the twentieth day of ,april1  
which shall be in the year of our ,lord 
one thousand six hundred and            
sixty-five1 in any county of this realm 
of ,england1 shall every of    them thon
 have1 in their own name1 or in trust   

for them1 within the    same county1    
twenty pounds by the year1 at least1    
above reprises1    in their own or their
 wives' right1 of freehold lands1 or of 
ancient    demesne1 or of rents in fee1 
fee-tail1 or for life4 ,and that in     
every    county within the dominion of  
,wales every such juror shall then have1
    within the same1 eight pounds by the
 year1 at the least1 above    reprises1 
in manner aforesaid4 ,all which persons 
having such estate    as aforesaid are  
hereby enabled and made liable to be    
returned and    serve as jurors for the 
trial of issues before the justices     
aforesaid1 any law or statute to the    
contrary in any wise                    
notwithstanding4--#af and #ag ,charles  
,,ii41 ch4 #c4 7#affd-e47  ,by a statute
 passed in #afib1 jurors in ,england are
 to have landed estates of the value of 
ten pounds a year2 and jurors in ,wales 
to have similar estates of the realm of 
six pounds a year4--#d and #e ,william  
and ,mary1 ch4 #bd1 sec4 #ad4 7#afib47  

,by the same statute1 7sec4 #ah17       
persons may be returned to serve upon   
the tales in any county of ,england1 who
 shall have1 within the same county1    
five pounds by the year1 above reprises1
 in the manner aforesaid4  ,by ,st4 #c  
,george ,,ii41 ch4 #be1 sec4 #ai1 #bj1  
no one is to be a juror in ,london1 who 
shall not be an householder within the  
said city1 and have lands1 tenements1 or
 personal estate1 to the value of one   
hundred pounds4  ,by another statute1   
applicable only to the county of        
,middlesex1 it is enacted1     ,that all
 leaseholders1 upon leases where the    
improved rents or value    shall amount 
to fifty pounds or upwards per annum1   
over and above    all ground rents or   
other reservations payable by virtue of 
the said    leases1 shall be liable and 
obliged to serve upon juries when they  
shall be legally summoned for that      
purpose4--#d ,george ,,ii41 ch4 #g1     
sec4 #c4 7#agca47  ,footnote #hc3       
,suppose these statutes1 instead of     

disfranchising all whose freeholds were 
of less than the standard value fixed by
 the statutes1 had disfranchised all    
whose freeholds were of greater value   
than the same standard--would anybody   
ever have doubted that such legislation 
was inconsistent with the ,english      
constitution2 or that it amounted to an 
entire abolition of the trial by jury8  
,certainly not4 ,yet it was as clearly  
inconsistent with the common law1 or the
 ,english constitution1 to disfranchise 
those whose freeholds fell below any    
arbitrary standard fixed by the         
government1 as it would have been to    
disfranchise all whose freeholds rose   
above that standard4  ,footnote #hd3    
,lingard says3 ,these compurgators or   
jurors 99 99 were sometimes 99 99 drawn 
by lot4--#a ,lingard's ,history of      
,england1 p4 #cjj4  ,footnote #he3      
,chapter #d1 p4 #abj1 note4  ,footnote  
#hf3 ,a mark was thirteen shillings and 
four pence4     ,,chapter ,,vii4        
,,illegal ,,judges4   ,it is a principle

 of ,magna ,carta1 and therefore of the 
trial by jury1 7for all parts of ,magna 
,carta must be construed together17 that
 no judge or other officer appointed by 
the king1 shall preside in jury trials1 
in criminal cases1 or pleas of the      
crown4  ,this provision is contained in 
the great charters of both ,john and    
,henry1 and is second in importance only
 to the provision guaranteeing the trial
 by jury1 of which it is really a part4 
,consequently1 without the observance of
 this prohibition1 there can be no      
genuine or legal--that is1 common       
law--trial by jury4  ,at the common law1
 all officers who held jury trials1     
whether in civil or criminal cases1 were
 chosen by the people4#hg  ,but previous
 to ,magna ,carta1 the kings had adopted
 the practice of sending officers of    
their own appointment1 called justices1 
into the counties1 to hold jury trials  
in some cases2 and ,magna ,carta        
authorizes this practice to be continued
 so far as it relates to three kinds of 

civil actions1 to wit3 novel disseisin1 
mort de ancestor1 and darrein           
presentment2#hh but specially forbids   
its being extended to criminal cases1 or
 pleas of the crown4  ,this prohibition 
is in these words3     ,nullus          
vicecomes1 constabularius1 coronator1   
vel alii balivi    nostri1 teneant      
placita coron nostr4 7,no sheriff1      
constable1    coroner1 or other our     
bailiffs1 shall hold pleas of our       
crown47--,john's ,charter1 ch4 #ec4     
,henry's ditto1 ch4 #ag4  ,some persons 
seem to have supposed that this was a   
prohibition merely upon officers bearing
 the specific names of sheriffs1        
constables1 coroners and bailiffs1 to   
hold criminal trials4 ,but such is not  
the meaning4 ,if it were1 the name could
 be changed1 and the thing retained2 and
 thus the prohibition be evaded4 ,the   
prohibition applies 7as will presently  
be seen7 to all officers of the king    
whatsoever2 and it sets up a distinction
 between officers of the king1 7our     

bailiffs17 and officers chosen by the   
people4  ,the prohibition upon the      
king's justices sitting in criminal     
trials1 is included in the words vel    
alii balivi nostri1 7or other our       
bailiffs47 ,the word bailiff was        
anciently a sort of general name for    
judicial officers and persons employed  
in and about the administration of      
justice4 ,in modern times its use1 as   
applied to the higher grades of judicial
 officers1 has been superseded by other 
words2 and it therefore now1 more       
generally1 if not universally1 signifies
 an executive or police officer1 a      
servant of courts1 rather than one whose
 functions are purely judicial4  ,the   
word is a ,french word1 brought into    
,england by the ,normans4     ,coke     
says1 ,baylife is a ,french word1 and   
signifies an officer    concerned in the
 administration of justice of a certain 
province2 and    because a sheriff hath 
an office concerning the administration 
of    justice within his county1 or     

bailiwick1 therefore he called his      
county baliva sua1 7his bailiwick47     
,i have heard great question made what  
the true exposition of this    word     
balivus is4 ,in the statute of ,magna   
,carta1 cap4 #bh1 the letter    of that 
statute is1 nullus balivus de ctero     
ponat aliquem ad legem    manifestam nec
 ad juramentum simplici loquela sua sine
 testibus    fidelibus ad hoc inductis4 
7,no bailiff from henceforth shall put  
any one to his open law1 nor to an oath 
7of self-exculpation7 upon    his own   
simple accusation1 or complaint1 without
 faithful witnesses    brought in for   
the same47 ,and some have said that     
balivus in this    statute signifieth   
any judge2 for the law must be waged and
 made    before the judge4 ,and this    
statute 7say they7 extends to the courts
    of common pleas1 king's bench1 c41  
for they must bring with them    fideles
 testes1 7faithful witnesses17 c41 and  
so hath been the    usage to this       
day4--#a ,coke's ,inst41 #afh b4  ,coke 

makes various references1 in his margin 
to ,bracton1 ,fleta1 and other          
authorities1 which ,i have not examined1
 but which1 ,i presume1 support the     
opinion expressed in this quotation4    
,coke also1 in another place1 under the 
head of the chapter just cited from     
,magna ,carta1 that no bailiff shall put
 any man to his open law1 c41 gives the 
following commentary upon it1 from the  
,mirror of ,justices1 from which it     
appears that in the time of ,edward ,i41
 7#abgb to #acjg17 this word balivus was
 understood to include all judicial1 as 
well as all other1 officers of the king4
     ,the ,mirror says3 ,the point which
 forbiddeth that no bailiff put a       
freeman to his oath without suit1 is to 
be understood in this    manner1--that  
no justice1 no minister of the king1 nor
 other    steward1 nor bailiff1 have    
power to make a freeman make oath1 7of  
self-exculpation17 without the king's   
command1#hi nor receive any    plaint1  
without witnesses present who testify   

the plaint to be    true4--,mirror of   
,justices1 ch4 #e1 sec4 #b1 p4 #beg4    
,coke quotes this commentary1 7in the   
original ,french17 and then endorses it 
in these words3     ,by this it         
appeareth1 that under this word balivus1
 in this act1    is comprehended every  
justice1 minister of the king1 steward1 
and    bailiff4--#b ,inst41 #dd4  ,coke 
also1 in his commentary upon this very  
chapter of ,magna ,carta1 that provides 
that no sheriff1 constable1 coroner1 or 
other our bailiffs1 shall hold pleas of 
our crown1 expresses the opinion that it
 is a general law1 7that is1 applicable 
to all officers of the king17 by reason 
of the words vel alii balivi nostri1 7or
 other our bailiffs17 under which words 
are comprehended all judges or justices 
of any courts of justice4 ,and he cites 
a decision in the king's bench1 in the  
#agth year of ,edward ,i41 7#abhi17 as  
authority2 which decision he calls a    
notable and leading judgment4--#b       
,inst41 #cj--a4  ,and yet ,coke1 in flat

 contradiction of this decision1 which  
he quotes with such emphasis and        
approbation1 and in flat contradiction  
also of the definition he repeatedly    
gives of the word balivus1 showing that 
it embraced all ministers of the king   
whatsoever1 whether high or low1        
judicial or executive1 fabricates an    
entirely gratuitous interpretation of   
this chapter of ,magna ,carta1 and      
pretends that after all it only required
 that felonies should be tried before   
the king's justices1 on account of their
 superior learning2 and that it         
permitted all lesser offences to be     
tried before inferior officers1 7meaning
 of course the king's inferior          
officers47--#b ,inst41 #cj4  ,and thus  
this chapter of ,magna ,carta1 which1   
according to his own definition of the  
word balivus1 applies to all officers of
 the king2 and which1 according to the  
common and true definition of the term  
pleas of the crown1 applies to all      
criminal cases without distinction1 and 

which1 therefore1 forbids any officer or
 minister of the king to preside in a   
jury trial in any criminal case         
whatsoever1 he coolly and gratuitously  
interprets into a mere senseless        
provision for simply restricting the    
discretion of the king in giving names  
to his own officers who should preside  
at the trials of particular offences2 as
 if the king1 who made and unmade all   
his officers by a word1 could not defeat
 the whole object of the prohibition1 by
 appointing such individuals as he      
pleased1 to try such causes as he       
pleased1 and calling them by such names 
as he pleased1 if he were but permitted 
to appoint and name such officers at    
all2 and as if it were of the least     
importance what name an officer bore1   
whom the king might appoint to a        
particular duty4#ij  ,coke evidently    
gives this interpretation solely        
because1 as he was giving a general     
commentary on ,magna ,carta1 he was     
bound to give some interpretation or    

other to every chapter of it2 and for   
this chapter he could invent1 or        
fabricate1 7for it is a sheer           
fabrication17 no interpretation better  
suited to his purpose than this4 ,it    
seems never to have entered his mind1   
7or if it did1 he intended that it      
should never enter the mind of anybody  
else17 that the object of the chapter   
could be to deprive the king of the     
power of putting his creatures into     
criminal courts1 to pack1 cheat1 and    
browbeat juries1 and thus maintain his  
authority by procuring the conviction of
 those who should transgress his laws1  
or incur his displeasure4  ,this example
 of ,coke tends to show how utterly     
blind1 or how utterly corrupt1 ,english 
judges1 7dependent upon the crown and   
the legislature71 have been in regard to
 everything in ,magna ,carta1 that went 
to secure the liberties of the people1  
or limit the power of the government4   
,coke's interpretation of this chapter  
of ,magna ,carta is of a piece with his 

absurd and gratuitous interpretation of 
the words nec super eum ibimus1 nec     
super eum mittemus1 which was pointed   
out in a former article1 and by which he
 attempted to give a judicial power to  
the king and his judges1 where ,magna   
,carta had given it only to a jury4 ,it 
is also of a piece with his pretence    
that there was a difference between fine
 and amercement1 and that fines might be
 imposed by the king1 and that juries   
were required only for fixing           
amercements4  ,these are some of the    
innumerable frauds by which the ,english
 people have been cheated out of the    
trial by jury4  ,ex uno disce omnes4    
,from one judge learn the characters of 
all4#ia  ,i give in the note additional 
and abundant authorities for the meaning
 ascribed to the word bailiff4 ,the     
importance of the principle involved    
will be a sufficient excuse for such an 
accumulation of authorities as would    
otherwise be tedious and perhaps        
unnecessary4#ib  ,the foregoing         

interpretation of the chapter of ,magna 
,carta now under discussion1 is         
corroborated by another chapter of      
,magna ,carta1 which specially provides 
that the king's justices shall go       
through every county to take the assizes
 7hold jury trials7 in three kinds of   
civil actions1 to wit1 novel disseisin1 
mort de ancestor1 and darrein           
presentment2 but makes no mention       
whatever of their holding jury trials in
 criminal cases1--an omission wholly    
unlikely to be made1 if it were designed
 they should attend the trial of such   
causes4 ,besides1 the chapter here      
spoken of 7in ,john's charter7 does not 
allow these justices to sit alone in    
jury trials1 even in civil actions2 but 
provides that four knights1 chosen by   
the county1 shall sit with them to keep 
them honest4 ,when the king's justices  
were known to be so corrupt and servile 
that the people would not even trust    
them to sit alone1 in jury trials1 in   
civil actions1 how preposterous is it to

 suppose that they would not only suffer
 them to sit1 but to sit alone1 in      
criminal ones4  ,it is entirely         
incredible that ,magna ,carta1 which    
makes such careful provision in regard  
to the king's justices sitting in civil 
actions1 should make no provision       
whatever as to their sitting in criminal
 trials1 if they were to be allowed to  
sit in them at all4 ,yet ,magna ,carta  
has no provision whatever on the        
subject4#ic  ,but what would appear to  
make this matter absolutely certain is1 
that unless the prohibition that no     
bailiff1 c41 of ours shall hold pleas of
 our crown1 apply to all officers of the
 king1 justices as well as others1 it   
would be wholly nugatory for any        
practical or useful purpose1 because the
 prohibition could be evaded by the     
king1 at any time1 by simply changing   
the titles of his officers4 ,instead of 
calling them sheriffs1 coroners1        
constables and bailiffs1 he could call  
them justices1 or anything else he      

pleased2 and this prohibition1 so       
important to the liberty of the people1 
would then be entirely defeated4 ,the   
king also could make and unmake justices
 at his pleasure2 and if he could       
appoint any officers whatever to preside
 over juries in criminal trials1 he     
could appoint any tool that he might at 
any time find adapted to his purpose4   
,it was as easy to make justices of     
,jeffreys and ,scroggs1 as of any other 
material2 and to have prohibited all the
 king's officers1 except his justices1  
from presiding in criminal trials1 would
 therefore have been mere fool's play4  
,we can all perhaps form some idea1     
though few of us will be likely to form 
any adequate idea1 of what a different  
thing the trial by jury would have been 
in practice1 and of what would have been
 the difference to the liberties of     
,england1 for five hundred years last   
past1 had this prohibition of ,magna    
,carta1 upon the king's officers sitting
 in the trial of criminal cases1 been   

observed4  ,the principle of this       
chapter of ,magna ,carta1 as applicable 
to the governments of the ,united       
,states of ,america1 forbids that any   
officer appointed either by the         
executive or legislative power1 or      
dependent upon them for their salaries1 
or responsible to them by impeachment1  
should preside over a jury in criminal  
trials4 ,to have the trial a legal 7that
 is1 a common law7 and true trial by    
jury1 the presiding officers must be    
chosen by the people1 and be entirely   
free from all dependence upon1 and all  
accountability to1 the executive and    
legislative branches of the             
government4#id  ,footnote #hg3 ,the     
proofs of this principle of the common  
law have already been given on page     
#abj1 note4  ,there is much confusion   
and contradiction among authors as to   
the manner in which sheriffs and other  
officers were appointed2 some           
maintaining that they were appointed by 
the king1 others that they were elected 

by the people4 ,i imagine that both     
these opinions are correct1 and that    
several of the king's officers bore the 
same official names as those chosen by  
the people2 and that this is the cause  
of the confusion that has arisen on the 
subject4  ,it seems to be a perfectly   
well established fact that1 at common   
law1 several magistrates1 bearing the   
names of aldermen1 sheriffs1 stewards1  
coroners and bailiffs1 were chosen by   
the people2 and yet it appears1 from    
,magna ,carta itself1 that some of the  
king's officers 7of whom he must have   
had many7 were also called sheriffs1    
constables1 coroners1 and bailiffs4     
,but ,magna ,carta1 in various          
instances1 speaks of sheriffs and       
bailiffs as our sheriffs and bailiffs2  
thus apparently intending to recognize  
the distinction between officers of the 
king1 bearing those names1 and other    
officers1 bearing the same official     
names1 but chosen by the people4 ,thus  
it says that no sheriff or bailiff of   

ours1 or any other 7officer71 shall take
 horses or carts of any freeman for     
carriage1 unless with the consent of the
 freeman himself4--,john's ,charter1 ch4
 #cf4  ,in a kingdom subdivided into so 
many counties1 hundreds1 tithings1      
manors1 cities and boroughs1 each having
 a judicial or police organization of   
its own1 it is evident that many of the 
officers must have been chosen by the   
people1 else the government could not   
have maintained its popular character4  
,on the other hand1 it is evident that  
the king1 the executive power of the    
nation1 must have had large numbers of  
officers of his own in every part of the
 kingdom4 ,and it is perfectly natural  
that these different sets of officers   
should1 in many instances1 bear the same
 official names2 and1 consequently that 
the king1 when speaking of his own      
officers1 as distinguished from those   
chosen by the people1 should call them  
our sheriffs1 bailiffs1 c41 as he does  
in ,magna ,carta4  ,i apprehend that    

inattention to these considerations has 
been the cause of all the confusion of  
ideas that has arisen on this           
subject1--a confusion very evident in   
the following paragraph from ,dunham1   
which may be given as an illustration of
 that which is exhibited by others on   
the same points4     ,subordinate to the
 ealdormen were the gerefas1 the        
sheriffs1 or    reeves1 of whom there   
were several in every shire1 or county4 
,there was one in every borough1 as a   
judge4 ,there was one at every    gate1 
who witnessed purchases outside the     
walls2 and there was one1    higher than
 either1--the high sheriff1--who was    
probably the reeve of    the shire4     
,this last appears to have been         
appointed by the king4    ,their        
functions were to execute the decrees of
 the king1 or    ealdormen1 to arrest   
prisoners1 to require bail for their    
appearance    at the sessions1 to       
collect fines or penalties levied by the
 court of    the shire1 to preserve the 

public peace1 and to preside in a       
subordinate tribunal of their           
own4--,dunham's ,middle ,ages1 sec4 #b1 
,b4 #b1 ch4 #a4 #eg ,lardner's ,cab4    
,cyc41 p4 #da4  ,the confusion of duties
 attributed to these officers indicates 
clearly enough that different officers1 
bearing1 the same official names1 must  
have had different duties1 and have     
derived their authority from different  
sources1--to wit1 the king1 and the     
people4  ,footnote #hh3 ,darrein        
presentment was an inquest to discover  
who presented the last person to a      
church2 mort de ancestor1 whether the   
last possessor was seized of land in    
demesne of his own fee2 and novel       
disseisin1 whether the claimant had been
 unjustly disseized of his freehold4    
,footnote #hi3 ,he has no power to do   
it1 either with1 or without1 the king's 
command4 ,the prohibition is absolute1  
containing no such qualification as is  
here interpolated1 viz41 without the    
king's command4 ,if it could be done    

with the king's command1 the king would 
be invested with arbitrary power in the 
matter4  ,footnote #ij3 ,the absurdity  
of this doctrine of ,coke is made more  
apparent by the fact that1 at that time1
 the justices and other persons         
appointed by the king to hold courts    
were not only dependent upon the king   
for their offices1 and removable at his 
pleasure1 but that the usual custom was1
 not to appoint them with any view to   
permanency1 but only to give them       
special commissions for trying a single 
cause1 or for holding a single term of a
 court1 or for making a single circuit2 
which1 being done1 their commissions    
expired4 ,the king1 therefore1 could1   
and undoubtedly did1 appoint any        
individual he pleased1 to try any cause 
he pleased1 with a special view to the  
verdicts he desired to obtain in the    
particular cases4  ,this custom of      
commissioning particular persons to hold
 jury trials1 in criminal cases1 7and   
probably also in civil ones17 was of    

course a usurpation upon the common law1
 but had been practised more or less    
from the time of ,william the           
,conqueror4 ,palgrave says3     ,the    
frequent absence of ,william from his   
insular dominions    occasioned another 
mode of administration1 which ultimately
 produced    still greater changes in   
the law4 ,it was the practice of        
appointing    justiciars to represent   
the king's person1 to hold his court1 to
    decide his pleas1 to dispense       
justice on his behalf1 to command the   
military levies1 and to act as          
conservators of the peace in the        
king's name4#ie 444 ,the justices who   
were assigned in the name of    the     
sovereign1 and whose powers were        
revocable at his pleasure1    derived   
their authority merely from their       
grant4444 ,some of those    judges were 
usually deputed for the purpose of      
relieving the king    from the burden of
 his judicial functions4444 ,the number 
as well as    the variety of names of   

the justices appearing in the early     
chirographs of ',concords1' leave reason
 for doubting whether1    anterior to   
the reign of ,henry ,,iii41 7#abaf to   
#abgb17 a court1 whose    members were  
changing at almost every session1 can be
 said to have    been permanently       
constituted4 ,it seems more probable    
that the    individuals who composed the
 tribunal were selected as suited the   
pleasure of the sovereign1 and the      
convenience of the clerks and    barons2
 and the history of our legal           
administration will be much             
simplified1 if we consider all those    
courts which were afterwards            
denominated the ,exchequer1 the ,king's 
,bench1 the ,common ,pleas1 and    the  
,chancery1 as being originally          
committees1 selected by the king    when
 occasion required1 out of a large body1
 for the despatch of    peculiar        
branches of business1 and which         
committees1 by degrees1    assumed an   
independent and permanent existence4444 

,justices    itinerant1 who1 despatched 
throughout the land1 decided the ',pleas
 of    the ,crown1' may be obscurely    
traced in the reign of the ,conqueror2  
not1 perhaps1 appointed with much       
regularity1 but despatched upon         
peculiar occasions and emergencies4--#a 
,palgrave's ,rise and    ,progress1 c41 
p4 #bhi to #bic4  ,the following        
statute1 passed in #aced1 7#aci years   
after ,magna ,carta17 shows that even   
after this usurpation of appointing     
justices of his own1 to try criminal    
cases1 had probably become somewhat     
established in practice1 in defiance of 
,magna ,carta1 the king was in the habit
 of granting special commissions to     
still other persons1 7especially to     
sheriffs1--his sheriffs1 no doubt17 to  
try particular cases3     ,because that 
the people of the realm have suffered   
many evils and    mischiefs1 for that   
sheriffs of divers counties1 by virtue  
of    commissions and general writs     
granted to them at their own suit1 for  

their singular profit to gain of the    
people1 have made and taken    divers   
inquests to cause to indict the people  
at their will1 and have    taken fine   
and ransom of them to their own use1 and
 have delivered    them2 whereas such   
persons indicted were not brought before
 the    king's justices to have their   
deliverance1 it is accorded and         
established1 for to eschew all such     
evils and mischiefs1 that such          
commissions and writs before this time  
made shall be utterly    repealed1 and  
that from henceforth no such commissions
 shall be    granted4--,st4 #bh ,edward 
,,iii41 ch4 #i1 7#aced47  ,how silly to 
suppose that the illegality of these    
commissions to try criminal cases1 could
 have been avoided by simply granting   
them to persons under the title of      
justices1 instead of granting them to   
sheriffs4 ,the statute was evidently a  
cheat1 or at least designed as such1    
inasmuch as it virtually asserts the    
right of the king to appoint his tools1 

under the name of justices1 to try      
criminal cases1 while it disavows his   
right to appoint them under the name of 
sheriffs4     ,millar says3 ,when the   
king's bench came to have its usual     
residence    at ,westminster1 the       
sovereign was induced to grant special  
commissions1 for trying particular      
crimes1 in such parts of the    country 
as were found most convenient2 and this 
practice was    gradually modelled into 
a regular appointment of certain        
commissioners1 empowered1 at stated     
seasons1 to perform circuits over    the
 kingdom1 and to hold courts in         
particular towns1 for the trial of      
all sorts of crimes4 ,these judges of   
the circuit1 however1 never    obtained 
an ordinary jurisdiction1 but continued1
 on every occasion1    to derive their  
authority from two special commissions3 
that of    oyer and terminer1 by which  
they were appointed to hear and         
determine all treasons1 felonies and    
misdemeanors1 within certain            

districts2 and that of gaol delivery1 by
 which they were directed    to try     
every prisoner confined in the gaols of 
the several towns    falling under their
 inspection4--,millar's ,hist4 ,view of 
,eng4 ,gov41    vol4 #b1 ch4 #g1 p4     
#bhb4  ,the following extract from      
,gilbert shows to what lengths of       
usurpation the kings would sometimes go1
 in their attempts to get the judicial  
power out of the hands of the people1   
and entrust it to instruments of their  
own choosing3     ,from the time of the 
,saxons1 7that is1 from the commencement
 of    the reign of ,william the        
,conqueror17 till the reign of ,edward  
the    first1 7#abgb to #acjg17 the     
several county courts and sheriffs      
courts    did decline in their interest 
and authority4 ,the methods by which    
they were broken were two-fold4 ,first1 
by granting commissions to    the       
sheriffs by writ of ,,justicies1 whereby
 the sheriff had a    particular        
jurisdiction granted him to be judge of 

a particular    cause1 independent of   
the suitors of the county court1 7that  
is1    without a jury27 and these       
commissions were after the ,norman form1
    by which 7according to which7 all   
power of judicature was immediately     
derived from the king4--,gilbert on the 
,court of ,chancery1 p4 #a4  ,the       
several authorities now given show that 
it was the custom of the ,norman kings1 
not only to appoint persons to sit as   
judges in jury trials1 in criminal      
cases1 but that they also commissioned  
individuals to sit in singular and      
particular cases1 as occasion required2 
and that they therefore readily could1  
and naturally would1 and therefore      
undoubtedly did1 commission individuals 
with a special view to their adaptation 
or capacity to procure such judgments as
 the kings desired4  ,the extract from  
,gilbert suggests also the usurpation of
 the ,norman kings1 in their assumption 
that they1 7and not the people1 as by   
the common law17 were the fountains of  

justice4 ,it was only by virtue of this 
illegal assumption that they could claim
 to appoint their tools to hold courts4 
,all these things show how perfectly    
lawless and arbitrary the kings were    
both before and after ,magna ,carta1 and
 how necessary to liberty was the       
principle of ,magna ,carta and the      
common law1 that no person appointed by 
the king should hold jury trials in     
criminal cases4  ,footnote #ia3 ,the    
opinions and decisions of judges and    
courts are undeserving of the least     
reliance1 7beyond the intrinsic merit of
 the arguments offered to sustain them17
 and are unworthy even to be quoted as  
evidence of the law1 when those opinions
 or decisions are favorable to the power
 of the government1 or unfavorable to   
the liberties of the people4 ,the only  
reasons that their opinions1 when in    
favor of liberty1 are entitled to any   
confidence1 are1 first1 that all        
presumptions of law are in favor of     
liberty2 and1 second1 that the          

admissions of all men1 the innocent and 
the criminal alike1 when made against   
their own interests1 are entitled to be 
received as true1 because it is contrary
 to human nature for a man to confess   
anything but truth against himself4     
,more solemn farces1 or more gross      
impostures1 were never practised upon   
mankind1 than are all1 or very nearly   
all1 those oracular responses by which  
courts assume to determine that certain 
statutes1 in restraint of individual    
liberty1 are within the constitutional  
power of the government1 and are        
therefore valid and binding upon the    
people4  ,the reason why these courts   
are so intensely servile and corrupt1   
is1 that they are not only parts of1 but
 the veriest creatures of1 the very     
governments whose oppressions they are  
thus seeking to uphold4 ,they receive   
their offices and salaries from1 and are
 impeachable and removable by1 the very 
governments upon whose acts they affect 
to sit in judgment4 ,of course1 no one  

with his eyes open ever places himself  
in a position so incompatible with the  
liberty of declaring his honest opinion1
 unless he do it with the intention of  
becoming a mere instrument in the hands 
of the government for the execution of  
all its oppressions4  ,as proof of this1
 look at the judicial history of        
,england for the last five hundred      
years1 and of ,america from its         
settlement4 ,in all that time 7so far as
 ,i know1 or presume7 no bench of       
judges1 7probably not even any single   
judge17 dependent upon the legislature  
that passed the statute1 has ever       
declared a single penal statute invalid1
 on account of its being in conflict    
either with the common law1 which the   
judges in ,england have been sworn to   
preserve1 or with the written           
constitutions1 7recognizing men's       
natural rights17 which the ,american    
judges were under oath to maintain4     
,every oppression1 every atrocity even1 
that has ever been enacted in either    

country1 by the legislative power1 in   
the shape of a criminal law1 7or1       
indeed1 in almost any other shape17 has 
been as sure of a sanction from the     
judiciary that was dependent upon1 and  
impeachable by1 the legislature that    
enacted the law1 as if there were a     
physical necessity that the legislative 
enactment and the judicial sanction     
should go together4 ,practically        
speaking1 the sum of their decisions1   
all and singular1 has been1 that there  
are no limits to the power of the       
government1 and that the people have no 
rights except what the government       
pleases to allow to them4  ,it is       
extreme folly for a people to allow such
 dependent1 servile1 and perjured       
creatures to sit either in civil or     
criminal trials2 but to allow them to   
sit in criminal trials1 and judge of the
 people's liberties1 is not merely      
fatuity1--it is suicide4  ,footnote #ib3
 ,coke1 speaking of the word bailiffs1  
as used in the statute of #a            

,westminster1 ch4 #ce1 7#abge17 says3   
,here bailiffs are taken for the judges 
of the court1 as    manifestly appeareth
 hereby4--#b ,inst41 #bbi4  ,coke also  
says1 ,it is a maxim in law1 aliquis non
 debet esse judex in propria causa1 7no 
one ought to be judge in his own cause27
 and therefore a fine levied before the 
baylifes of ,salop was reversed1 because
 one of the baylifes was party to the   
fine1 quia non potest esse judex et     
pars1 7because one cannot be judge and  
party47--#a ,inst41 #ada a4  ,in the    
statute of ,gloucester1 ch4 #aa and #ab1
 7#abgh17 the mayor and bailiffs of     
,london 7undoubtedly chosen by the      
people1 or at any rate not appointed by 
the king7 are manifestly spoken of as   
judges1 or magistrates1 holding jury    
trials1 as follows3     ,ch4 ,,ii4 ,it  
is provided1 also1 that if any man lease
 his tenement    in the city of ,london1
 for a term of years1 and he to whom the
    freehold belongeth causeth himself  
to be impleaded by collusion1 and       

maketh default after default1 or cometh 
into court and giveth it up1    for to  
make the termor 7lessee7 lose his term1 
7lease17 and the    demandant hath his  
suit1 so that the termor may recover by 
writ of    covenant2 the mayor and      
bailiffs may inquire by a good inquest1 
7jury17 in the presence of the termor   
and the demandant1 whether    the       
demandant moved his plea upon good right
 that he had1 or by    collusion1 or    
fraud1 to make the termor lose his term2
 and if it be    found by the inquest   
7jury7 that the demandant moved his plea
 upon    good right that he had1 the    
judgment shall be given forthwith2 and  
if    it be found by the inquest 7jury7 
that he impleaded him 7self7 by         
fraud1 to put the termor from his term1 
then shall the termor enjoy    his term1
 and the execution of judgment for the  
demandant shall be    suspended until   
the term be expired4--#f ,edward ,i41   
ch4 #aa1 7#abgh47     ,coke1 in his     
commentary on this chapter1 calls this  

court of the    mayor and bailiffs of   
,london1 the court of the hustings1 the 
greatest and highest court in ,london2  
and adds1 other cities have    the like 
court1 and so called1 as ,york1         
,lincoln1 ,winchester1 c4 ,here    the  
city of ,london is named2 but it        
appeareth by that which hath been       
said out of ,fleta1 that this act       
extends to such cities and boroughs     
privileged1--that is1 such as have such 
privilege to hold plea as    ,london    
hath4--#b ,inst41 #cbb4  ,the #abth     
chapter of the same statute is in the   
following words1 which plainly recognize
 the fact that the mayor and bailiffs of
 ,london are judicial officers holding  
courts in ,london4     ,it is provided1 
also1 that if a man1 impleaded for a    
tenement in the    same city1 7,london17
 doth vouch a foreigner to warranty1    
that he    shall come into the chancery1
 and have a writ to summon his warrantor
    at a certain day before the justices
 of the bench1 and another writ    to   

the mayor and bailiffs of ,london1 that 
they shall surcease    7suspend         
proceedings7 in the matter that is      
before them by writ1    until the plea  
of the warrantee be determined before   
the justices of    the bench2 and when  
the plea at the bench shall be          
determined1 then    shall he that is    
vouched be commanded to go into the     
city1 7that is1    before the mayor and 
bailiffs' court17 to answer unto the    
chief    plea2 and a writ shall be      
awarded at the suit of the demandant by 
the    justices unto the mayor and      
bailiffs1 that they shall proceed in the
    plea1 c4--#f ,edward ,i41 ch4 #ab1  
7#abgh47  ,coke1 in his commentary on   
this chapter1 also speaks repeatedly of 
the mayor and bailiffs as judges holding
 courts2 and also speaks of this chapter
 as applicable not only to the citie of 
,london1 specially named for the cause  
aforesaid1 but extended by equity to all
 other privileged places1 7that is1     
privileged to have a court of mayor and 

bailiffs17 where foreign voucher is     
made1 as to ,chester1 ,durham1 ,salop1  
c4--#b ,inst41 #cbe-g4  ,,bailie4--,in  
,scotch law1 a municipal magistrate1    
corresponding with the ,english         
alderman4#if--;,burrill's ,law          
,dictionary4  ,,bailiffe4--,baillif4    
,fr4 ,a bailiff3 a ministerial officer  
with duties similar to those of a       
sheriff4444 ,the judge of a court4 ,a   
municipal magistrate1 c4--,burrill's    
,law ,dict4  ,,bailiff4444 ,the word    
bailiff is of ,norman origin1 and was   
applied in ,england1 at an early period1
 7after the example1 it is said1 of the 
,french17 to the chief magistrates of   
counties1 or shires1 such as the        
alderman1 the reeve1 or sheriff1 and    
also of inferior jurisdictions1 such as 
hundreds and wapentakes4--,spelman1 voc4
 ,balivus2 #a ,bl4 ,com41 #cdd4 ,see    
,bailli1 ,ballivus4 ,the ,latin ballivus
 occurs1 indeed1 in the laws of ,edward 
the ,confessor1 but ,spelman thinks it  
was introduced by a later hand4 ,balliva

 7bailiwick7 was the word formed from   
ballivus1 to denote the extent of       
territory comprised within a bailiff's  
jurisdiction2 and bailiwick is still    
retained in writs and other proceedings1
 as the name of a sheriff's county4--#a 
,bl4 ,com41 #cdd4 ,see ,balliva4 ,the   
office of bailiff was at first strictly1
 though not exclusively1 a judicial one4
 ,in ,france1 the word had the sense of 
what ,spelman calls justitia tutelaris4 
,ballivus occurs frequently in the      
,regiam ,majestatem1 in the sense of a  
judge4--,spelman4 ,in its sense of a    
deputy1 it was formerly applied1 in     
,england1 to those officers who1 by     
virtue of a deputation1 either from the 
sheriff or the lords of private         
jurisdictions1 exercised within the     
hundred1 or whatever might be the limits
 of their bailiwick1 certain judicial   
and ministerial functions4 ,with the    
disuse of private and local             
jurisdictions1 the meaning of the term  
became commonly restricted to such      

persons as were deputed by the sheriff  
to assist him in the merely ministerial 
portion of his duty2 such as the        
summoning of juries1 and the execution  
of writs4--,brande4 444 ,the word       
bailiff is also applied in ,england to  
the chief magistrates of certain towns  
and jurisdictions1 to the keepers of    
castles1 forests and other places1 and  
to the stewards or agents of lords of   
manors4--,burrill's ,law ,dict4         
,,bailiff1 7from the ,lat4 ballivus2    
,fr4 baillif1 i4e41 ,prfectus provinci17
 signifies an officer appointed for the 
administration of justice within a      
certain district4 ,the office1 as well  
as the name1 appears to have been       
derived from the ,french1               
c41--,brewster's ,encyclopedia4  ,millar
 says1 ,the ,french monarchs1 about this
 period1 were not content with the power
 of receiving appeals from the several  
courts of their barons4 ,an expedient   
was devised of sending royal bailiffs   
into different parts of the kingdom1    

with a commission to take cognizance of 
all those causes in which the sovereign 
was interested1 and in reality for the  
purpose of abridging and limiting the   
subordinate jurisdiction of the         
neighboring feudal superiors4 ,by an    
edict of ,phillip ,augustus1 in the year
 #aaij1 those bailiffs were appointed in
 all the principal towns of the         
kingdom4--,millar's ,hist4 ,view of the 
,eng4 ,gov41 vol4 ii41 ch4 #c1 p4 #abf4 
,,bailiff-office4--,magistrates who     
formerly administered justice in    the 
parliaments or courts of ,france1       
answering to the ,english    sheriffs1  
as mentioned by ,bracton4--,bouvier's   
,law ,dict4     ,there be several       
officers called bailiffs1 whose offices 
and    employments seem quite different 
from each other4444 ,the chief          
magistrate1 in divers ancient           
corporations1 are called bailiffs1 as   
in ,ipswich1 ,yarmouth1 ,colchester1 c4 
,there are1 likewise1 officers    of the
 forest1 who are termed bailiffs4--#a   

,bacon's ,abridgment1    #dih-i4        
,,bailiff signifies a keeper or         
superintendent1 and is directly         
derived from the ,french word bailli1   
which appears to come from the    word  
balivus1 and that from bagalus1 a ,latin
 word signifying    generally a         
governor1 tutor1 or superintendent4444  
,the ,french word    bailli is thus     
explained by ,richelet1 7,dictionaire1  
c437    ,bailli4--,he who in a province 
has the superintendence of justice1     
who is the ordinary judge of the nobles1
 who is their head for the    ban and   
arriere ban1#ig and who maintains the   
right and property    of others against 
those who attack them4444 ,all the      
various officers    who are called by   
this name1 though differing as to the   
nature of    their employments1 seem to 
have some kind of superintendence       
intrusted to them by their              
superior4--,political ,dictionary4      
,,bailiff1 balivus4 ,from the ,french   
word bayliff1 that is1 prfectus         

provinci1 and as the name1 so the office
 itself was answerable to that of       
,france1 where there were eight         
parliaments1 which were high courts from
 whence there lay no appeal1 and within 
the precincts of the several parts of   
that kingdom which belonged to each     
parliament1 there were several provinces
 to which justice was administered by   
certain officers called bailiffs2 and in
 ,england we have several counties in   
which justice hath been1 and still is1  
in small suits1 administered to the     
inhabitants by the officer whom we now  
call sheriff1 or viscount2 7one of which
 names descends from the ,saxons1 the   
other from the ,normans47 ,and1 though  
the sheriff is not called bailiff1 yet  
it was probable that was one of his     
names also1 because the county is often 
called balliva2 as in the return of a   
writ1 where the person is not arrested1 
the sheriff saith1 infra-nominatus1     
,a4,b4 non est inventus in balliva mea1 
c42 7the within named ,a4,b4 is not     

found in my bailiwick1 c47 ,and in the  
statute of ,magna ,carta1 ch4 #bh1 and  
#ad ,ed4 #c1 ch4 #i1 the word bailiff   
seems to comprise as well sheriffs1 as  
bailiffs of hundreds4  ,bailies1 in     
,scotland1 are magistrates of burghs1   
possessed of certain jurisdictions1     
having the same power within their      
territory as sheriffs in the county4444 
,as ,england is divided into counties1  
so every county is divided into         
hundreds2 within which1 in ancient      
times1 the people had justice           
administered to them by the several     
officers of every hundred1 which were   
the bailiffs4 ,and it appears by        
,bracton1 7lib4 #c1 tract4 #b1 ch4 #cd17
 that bailiffs of hundreds might        
anciently hold plea of appeal and       
approvers2 but since that time the      
hundred courts1 except certain          
franchises1 are swallowed in the county 
courts2 and now the bailiff's name and  
office is grown into contempt1 they     
being generally officers to serve writs1

 c41 within their liberties2 though1 in 
other respects1 the name is still in    
good esteem1 for the chief magistrates  
in divers towns are called bailiffs2 and
 sometimes the persons to whom the      
king's castles are committed are termed 
bailiffs1 as the bailiff of ,dover      
,castle1 c4  ,of the ordinary bailiffs  
there are several sorts1 viz41 bailiffs 
of liberties2 sheriffs' bailiffs2       
bailiffs of lords of manors2 bailiffs of
 husbandry1 c4444  ,bailiffs of         
liberties or franchises are to be sworn 
to take distresses1 truly impanel       
jurors1 make returns by indenture       
between them and sheriffs1 c4444        
,bailiffs of courts baron summon those  
courts1 and execute the process         
thereof4444  ,besides these1 there are  
also bailiffs of the forest             
444--,jacob's ,law ,dict4 ,tomlin's do4 
,,bailiwick1 balliva1--is not only taken
 for the county1 but signifies generally
 that liberty which is exempted from the
 sheriff of the county1 over which the  

lord of the liberty appointeth a        
bailiff1 with such powers within his    
precinct as an under-sheriff exerciseth 
under the sheriff of the county2 such as
 the bailiff of ,westminster4--,jacob's 
,law ,dict4 ,tomlin's do4  ,a bailiff of
 a ,leet1 ,court-baron1 ,manor1 ,balivus
 ,let1 ,baronis1 ,manerii4--,he is one  
that is appointed by the lord1 or his   
steward1 within every manor1 to do such 
offices as appertain thereunto1 as to   
summon the court1 warn the tenants and  
resiants2 also1 to summon the ,leet and 
,homage1 levy fines1 and make           
distresses1 c41 of which you may read at
 large in ,kitchen's ,court-leet and    
,court-baron4--,a ,law ,dictionary1     
anonymous1 7in ,suffolk ,law ,library47 
,,bailiff4--,in ,england an officer     
appointed by the sheriff4 ,bailiffs are 
either special1 and appointed1 for their
 adroitness1 to arrest persons2 or      
bailiffs of hundreds1 who collect fines1
 summon juries1 attend the assizes1 and 
execute writs and processes4 ,the       

sheriff in ,england is the king's       
bailiff4444  ,the office of bailiff     
formerly was high and honorable in      
,england1 and officers under that title 
on the continent are still invested with
 important functions4--,webster4        
,,bailli1 7,scotland47--,an alderman2 a 
magistrate who is second in rank in a   
royal burgh4--,worcester4  ,baili1 or   
,bailiff4--7,sorte d'officier de        
justice47 ,a bailiff2 a sort of         
magistrate4--,boyer's ,french ,dict4    
,by some opinions1 a bailiff1 in ,magna 
,carta1 ch4 #bh1 signifies any          
judge4--,cunningham's ,law ,dict4       
,,bailiff4--,in the court of the ,greek 
emperors there was a grand bajulos1     
first tutor of the emperor's children4  
,the superintendent of foreign merchants
 seems also to have been called bajulos2
 and1 as he was appointed by the        
,venetians1 this title 7balio7 was      
transferred to the ,venetian ambassador4
 ,from ,greece1 the official bajulos    
7ballivus1 bailli1 in ,france2 bailiff1 

in ,england17 was introduced into the   
south of ,europe1 and denoted a         
superintendent2 hence the eight ballivi 
of the knights of ,st4 ,john1 which     
constitute its supreme council4 ,in     
,france1 the royal bailiffs were        
commanders of the militia1              
administrators or stewards of the       
domains1 and judges of their districts4 
,in the course of time1 only the first  
duty remained to the bailiff2 hence he  
was bailli d'pe1 and laws were          
administered in his name by a lawyer1 as
 his deputy1 lieutenant de robe4 ,the   
seigniories1 with which high courts were
 connected1 employed bailiffs1 who thus 
constituted1 almost everywhere1 the     
lowest order of judges4 ,from the courts
 of the nobility1 the appellation passed
 to the royal courts2 from thence to the
 parliaments4 ,in the greater bailiwicks
 of cities of importance1 ,henry ,,ii4  
established a collegial constitution    
under the name of presidial courts4444  
,the name of bailiff was introduced into

 ,england with ,william ,i4 ,the        
counties were also called bailiwicks1   
7balliv17 while the subdivisions were   
called hundreds2 but1 as the courts of  
the hundreds have long since ceased1 the
 ,english bailiffs are only a kind of   
subordinate officers of justice1 like   
the ,french huissiers4 ,these correspond
 very nearly to the officers called     
constables in the ,united ,states4      
,every sheriff has some of them under   
him1 for whom he is answerable4 ,in some
 cities the highest municipal officer   
yet bears this name1 as the high bailiff
 of ,westminster4 ,in ,london1 the ,lord
 ,mayor is at the same time bailiff1    
7which title he bore before the present 
became usual17 and administers1 in this 
quality1 the criminal jurisdiction of   
the city1 in the court of old ,bailey1  
where there are1 annually1 eight        
sittings of the court1 for the city of  
,london and the county of ,middlesex4   
,usually1 the recorder of ,london       
supplies his place as judge4 ,in some   

instances the term bailiff1 in ,england1
 is applied to the chief magistrates of 
towns1 or to the commanders of          
particular castles1 as that of ,dover4  
,the term baillie1 in ,scotland1 is     
applied to a judicial police-officer1   
having powers very similar to those of  
justices of peace in the ,united        
,states4--,encyclopdia ,americana4      
,footnote #ic3 ,perhaps it may be said  
7and such1 it has already been seen1 is 
the opinion of ,coke and others7 that   
the chapter of ,magna ,carta1 that no   
bailiff from henceforth shall put any   
man to his open law1 7put him on trial17
 nor to an oath 7that is1 an oath of    
self-exculpation7 upon his 7the         
bailiff's7 own accusation or testimony1 
without credible witnesses brought in to
 prove the charge1 is itself a provision
 in regard to the king's justices       
sitting in criminal trials1 and         
therefore implies that they are to sit  
in such trials4  ,but1 although the word
 bailiff includes all judicial1 as well 

as other1 officers1 and would therefore 
in this case apply to the king's        
justices1 if they were to sit in        
criminal trials2 yet this particular    
chapter of ,magna ,carta evidently does 
not contemplate bailiffs while acting in
 their judicial capacity1 7for they were
 not allowed to sit in criminal trials  
at all17 but only in the character of   
witnesses2 and that the meaning of the  
chapter is1 that the simple testimony   
7simplici loquela7 of no bailiff1 7of   
whatever kind17 unsupported by other and
 credible witnesses1 shall be sufficient
 to put any man on trial1 or to his oath
 of self-exculpation4#ih  ,it will be   
noticed that the words of this chapter  
are not1 no bailiff of ours1--that is1  
of the king1--as in some other chapters 
of ,magna ,carta2 but simply no bailiff1
 c4 ,the prohibition1 therefore1 applies
 to all bailiffs1--to those chosen by   
the people1 as well as those appointed  
by the king4 ,and the prohibition is    
obviously founded upon the idea 7a very 

sound one in that age certainly1 and    
probably also in this7 that public      
officers 7whether appointed by king or  
people7 have generally1 or at least     
frequently1 too many interests and      
animosities against accused persons1 to 
make it safe to convict any man on their
 testimony alone4  ,the idea of ,coke   
and others1 that the object of this     
chapter was simply to forbid magistrates
 to put a man on trial1 when there were 
no witnesses against him1 but only the  
simple accusation or testimony of the   
magistrates themselves1 before whom he  
was to be tried1 is preposterous2 for   
that would be equivalent to supposing   
that magistrates acted in the triple    
character of judge1 jury and witnesses1 
in the same trial2 and that1 therefore1 
in such cases1 they needed to be        
prohibited from condemning a man on     
their own accusation or testimony alone4
 ,but such a provision would have been  
unnecessary and senseless1 for two      
reasons2 first1 because the bailiffs or 

magistrates had no power to hold pleas  
of the crown1 still less to try or      
condemn a man2 that power resting wholly
 with the juries2 second1 because if    
bailiffs or magistrates could try and   
condemn a man1 without a jury1 the      
prohibition upon their doing so upon    
their own accusation or testimony alone1
 would give no additional protection to 
the accused1 so long as these same      
bailiffs or magistrates were allowed to 
decide what weight should be given1 both
 to their own testimony and that of     
other witnesses2 for1 if they wished to 
convict1 they would of course decide    
that any testimony1 however frivolous or
 irrelevant1 in addition to their own1  
was sufficient4 ,certainly a magistrate 
could always procure witnesses enough to
 testify to something or other1 which he
 himself could decide to be             
corroborative of his own testimony4 ,and
 thus the prohibition would be defeated 
in fact1 though observed in form4       
,footnote #id3 ,in this chapter ,i have 

called the justices presiding officers1 
solely for the want of a better term4   
,they are not presiding officers1 in the
 sense of having any authority over the 
jury2 but are only assistants to1 and   
teachers and servants of1 the jury4 ,the
 foreman of the jury is properly the    
presiding officer1 so far as there is   
such an officer at all4 ,the sheriff has
 no authority except over other persons 
than the jury4  ,footnote #ie3 ,in this 
extract1 ,palgrave seems to assume that 
the king himself had a right to sit as  
judge1 in jury trials1 in the county    
courts1 in both civil and criminal      
cases4 ,i apprehend he had no such power
 at the common law1 but only to sit in  
the trial of appeals1 and in the trial  
of peers1 and of civil suits in which   
peers were parties1 and possibly in the 
courts of ancient demesne4  ,footnote   
#if3 ,alderman was a title anciently    
given to various judicial officers1 as  
the ,alderman of all ,england1 ,alderman
 of the ,king1 ,alderman of the ,county1

 ,alderman of the ,city or ,borough1    
,alderman of the ,hundred or ,wapentake4
 ,these were all judicial officers4 ,see
 ,law ,dictionaries4  ,footnote #ig3    
,ban and arriere ban1 a proclamation1   
whereby all that hold lands of the      
crown1 7except some privileged officers 
and citizens17 are summoned to meet at a
 certain place in order to serve the    
king in his wars1 either personally1 or 
by proxy4--,boyer4  ,footnote #ih3 ,at  
the common law1 parties1 in both civil  
and criminal cases1 were allowed to     
swear in their own behalf2 and it will  
be so again1 if the true trial by jury  
should be restablished4     ,,chapter   
,,viii4  ,,the ,,free ,,administration  
,,of ,,justice4   ,the free             
administration of justice was a         
principle of the common law2 and it must
 necessarily be a part of every system  
of government which is not designed to  
be an engine in the hands of the rich   
for the oppression of the poor4  ,in    
saying that the free administration of  

justice was a principle of the common   
law1 ,i mean only that parties were     
subjected to no costs for jurors1       
witnesses1 writs1 or other necessaries  
for the trial1 preliminary to the trial 
itself4 ,consequently1 no one could lose
 the benefit of a trial1 for the want of
 means to defray expenses4 ,but after   
the trial1 the plaintiff or defendant   
was liable to be amerced1 7by the jury1 
of course17 for having troubled the     
court with the prosecution or defence of
 an unjust suit4#ii ,but it is not      
likely that the losing party was        
subjected to an amercement as a matter  
of course1 but only in those cases where
 the injustice of his cause was so      
evident as to make him inexcusable in   
bringing it before the courts4  ,all the
 freeholders were required to attend the
 courts1 that they might serve as jurors
 and witnesses1 and do any other service
 that could legally be required of them2
 and their attendance was paid for by   
the state4 ,in other words1 their       

attendance and service at the courts    
were part of the rents which they paid  
the state for their lands4  ,the        
freeholders1 who were thus required     
always to attend the courts1 were       
doubtless the only witnesses who were   
usually required in civil causes4 ,this 
was owing to the fact that1 in those    
days1 when the people at large could    
neither write nor read1 few contracts   
were put in writing4 ,the expedient     
adopted for proving contracts1 was that 
of making them in the presence of       
witnesses1 who could afterwards testify 
to the transactions4 ,most contracts in 
regard to lands were made at the courts1
 in the presence of the freeholders     
there assembled4#ajj  ,in the king's    
courts it was specially provided by     
,magna ,carta that justice and right    
should not be sold2 that is1 that the   
king should take nothing from the       
parties for administering justice4  ,the
 oath of a party to the justice of his  
cause was all that was necessary to     

entitle him to the benefit of the courts
 free of all expense2 7except the risk  
of being amerced after the trial1 in    
case the jury should think he deserved  
it4#aja7  ,this principle of the free   
administration of justice connects      
itself necessarily with the trial by    
jury1 because a jury could not          
rightfully give judgment against any    
man1 in either a civil or criminal case1
 if they had any reason to suppose he   
had been unable to procure his          
witnesses4  ,the true trial by jury     
would also compel the free              
administration of justice from another  
necessity1 viz41 that of preventing     
private quarrels2 because1 unless the   
government enforced a man's rights and  
redressed his wrongs1 free of expense to
 him1 a jury would be bound to protect  
him in taking the law into his own      
hands4 ,a man has a natural right to    
enforce his own rights and redress his  
own wrongs4 ,if one man owe another a   
debt1 and refuse to pay it1 the creditor

 has a natural right to seize sufficient
 property of the debtor1 wherever he can
 find it1 to satisfy the debt4 ,if one  
man commit a trespass upon the person1  
property or character of another1 the   
injured party has a natural right1      
either to chastise the aggressor1 or to 
take compensation for the injury out of 
his property4 ,but as the government is 
an impartial party as between these     
individuals1 it is more likely to do    
exact justice between them than the     
injured individual himself would do4    
,the government1 also1 having more power
 at its command1 is likely to right a   
man's wrongs more peacefully than the   
injured party himself could do it4 ,if1 
therefore1 the government will do the   
work of enforcing a man's rights1 and   
redressing his wrongs1 promptly1 and    
free of expense to him1 he is under a   
moral obligation to leave the work in   
the hands of the government2 but not    
otherwise4 ,when the government forbids 
him to enforce his own rights or redress

 his own wrongs1 and deprives him of all
 means of obtaining justice1 except on  
the condition of his employing the      
government to obtain it for him1 and of 
paying the government for doing it1 the 
government becomes itself the protector 
and accomplice of the wrong-doer4 ,if   
the government will forbid a man to     
protect his own rights1 it is bound to  
do it for him1 free of expense to him4  
,and so long as government refuses to do
 this1 juries1 if they knew their       
duties1 would protect a man in defending
 his own rights4  ,under the prevailing 
system1 probably one half of the        
community are virtually deprived of all 
protection for their rights1 except what
 the criminal law affords them4 ,courts 
of justice1 for all civil suits1 are as 
effectually shut against them1 as though
 it were done by bolts and bars4 ,being 
forbidden to maintain their own rights  
by force1--as1 for instance1 to compel  
the payment of debts1--and being unable 
to pay the expenses of civil suits1 they

 have no alternative but submission to  
many acts of injustice1 against which   
the government is bound either to       
protect them1 free of expense1 or allow 
them to protect themselves4  ,there     
would be the same reason in compelling a
 party to pay the judge and jury for    
their services1 that there is in        
compelling him to pay the witnesses1 or 
any other necessary charges4#ajb  ,this 
compelling parties to pay the expenses  
of civil suits is one of the many cases 
in which government is false to the     
fundamental principles on which free    
government is based4 ,what is the object
 of government1 but to protect men's    
rights8 ,on what principle does a man   
pay his taxes to the government1 except 
on that of contributing his proportion  
towards the necessary cost of protecting
 the rights of all8 ,yet1 when his own  
rights are actually invaded1 the        
government1 which he contributes to     
support1 instead of fulfilling its      
implied contract1 becomes his enemy1 and

 not only refuses to protect his rights1
 7except at his own cost17 but even     
forbids him to do it himself4  ,all free
 government is founded on the theory of 
voluntary association2 and on the theory
 that all the parties to it voluntarily 
pay their taxes for its support1 on the 
condition of receiving protection in    
return4 ,but the idea that any poor man 
would voluntarily pay taxes to build up 
a government1 which will neither protect
 his rights1 7except at a cost which he 
cannot meet17 nor suffer himself to     
protect them by such means as may be in 
his power1 is absurd4  ,under the       
prevailing system1 a large portion of   
the lawsuits determined in courts1 are  
mere contests of purses rather than of  
rights4 ,and a jury1 sworn to decide    
causes according to the evidence        
produced1 are quite likely1 for aught   
they themselves can know1 to be deciding
 merely the comparative length of the   
parties' purses1 rather than the        
intrinsic strength of their respective  

rights4 ,jurors ought to refuse to      
decide a cause at all1 except upon the  
assurance that all the evidence1        
necessary to a full knowledge of the    
cause1 is produced4 ,this assurance they
 can seldom have1 unless the government 
itself produces all the witnesses the   
parties desire4  ,in criminal cases1 the
 atrocity of accusing a man of crime1   
and then condemning him unless he prove 
his innocence at his own charges1 is so 
evident that a jury could rarely1 if    
ever1 be justified in convicting a man  
under such circumstances4  ,but the free
 administration of justice is not only  
indispensable to the maintenance of     
right between man and man2 it would also
 promote simplicity and stability in the
 laws4 ,the mania for legislation would 
be1 in an important degree1 restrained1 
if the government were compelled to pay 
the expenses of all the suits that grew 
out of it4  ,the free administration of 
justice would diminish and nearly       
extinguish another great evil1--that of 

malicious civil suits4 ,it is an old    
saying1 that multi litigant in foro1 non
 ut aliquid lucrentur1 sed ut vexant    
alios4 7,many litigate in court1 not    
that they may gain anything1 but that   
they may harass others47 ,many men1 from
 motives of revenge and oppression1 are 
willing to spend their own money in     
prosecuting a groundless suit1 if they  
can thereby compel their victims1 who   
are less able than themselves to bear   
the loss1 to spend money in the defence4
 ,under the prevailing system1 in which 
the parties pay the expenses of their   
suits1 nothing but money is necessary to
 enable any malicious man to commence   
and prosecute a groundless suit1 to the 
terror1 injury1 and perhaps ruin1 of    
another man4 ,in this way1 a court of   
justice1 into which none but a          
conscientious plaintiff certainly should
 ever be allowed to enter1 becomes an   
arena into which any rich and revengeful
 oppressor may drag any man poorer than 
himself1 and harass1 terrify1 and       

impoverish him1 to almost any extent4   
,it is a scandal and an outrage1 that   
government should suffer itself to be   
made an instrument1 in this way1 for the
 gratification of private malice4 ,we   
might nearly as well have no courts of  
justice1 as to throw them open1 as we   
do1 for such flagitious uses4 ,yet the  
evil probably admits of no remedy except
 a free administration of justice4      
,under a free system1 plaintiffs could  
rarely be influenced by motives of this 
kind2 because they could put their      
victim to little or no expense1 neither 
pending the suit1 7which it is the      
object of the oppressor to do17 nor at  
its termination4 ,besides1 if the       
ancient common law practice should be   
adopted1 of amercing a party for        
troubling the courts with groundless    
suits1 the prosecutor himself would1 in 
the end1 be likely to be amerced by the 
jury1 in such a manner as to make courts
 of justice a very unprofitable place   
for a man to go to seek revenge4  ,in   

estimating the evils of this kind1      
resulting from the present system1 we   
are to consider that they are not1 by   
any means1 confined to the actual suits 
in which this kind of oppression is     
practised2 but we are to include all    
those cases in which the fear of such   
oppression is used as a weapon to compel
 men into a surrender of their rights4  
,footnote #ii3 #b ,sullivan ,lectures1  
#bcd-e4 #c ,blackstone1 #bgd-e1 #cgf4   
,sullivan says that both plaintiffs and 
defendants were liable to amercement4   
,blackstone speaks of plaintiffs being  
liable1 without saying whether          
defendants were so or not4 ,what the    
rule really was ,i do not know4 ,there  
would seem to be some reason in allowing
 defendants to defend themselves1 at    
their own charges1 without exposing     
themselves to amercement in case of     
failure4  ,footnote #ajj3 ,when any     
other witnesses than freeholders were   
required in a civil suit1 ,i am not     
aware of the manner in which their      

attendance was procured2 but it was     
doubtless done at the expense either of 
the state or of the witnesses           
themselves4 ,and it was doubtless the   
same in criminal cases4  ,footnote #aja3
 ,all claims were established in the    
first stage by the oath of the          
plaintiff1 except when otherwise        
specially directed by the law4 ,the     
oath1 by which any claim was supported1 
was called the fore-oath1 or            
',prjuramentum1' and it was the         
foundation of his suit4 ,one of the     
cases which did not require this        
initiatory confirmation1 was when cattle
 could be tracked into another man's    
land1 and then the foot-mark stood for  
the fore-oath4--#b ,palgrave's ,rise and
 ,progress1 c41 #aad4  ,footnote #ajb3  
,among the necessary expenses of suits1 
should be reckoned reasonable           
compensation to counsel1 for they are   
nearly or quite as important to the     
administration of justice1 as are       
judges1 jurors1 or witnesses2 and the   

universal practice of employing them1   
both on the part of governments and of  
private persons1 shows that their       
importance is generally understood4 ,as 
a mere matter of economy1 too1 it would 
be wise for the government to pay them1 
rather than they should not be employed2
 because they collect and arrange the   
testimony and the law beforehand1 so as 
to be able to present the whole case to 
the court and jury intelligibly1 and in 
a short space of time4 ,whereas1 if they
 were not employed1 the court and jury  
would be under the necessity either of  
spending much more time than now in the 
investigation of causes1 or of          
despatching them in haste1 and with     
little regard to justice4 ,they would be
 very likely to do the latter1 thus     
defeating the whole object of the people
 in establishing courts4  ,to prevent   
the abuse of this right1 it should      
perhaps be left discretionary with the  
jury in each case to determine whether  
the counsel should receive any pay--and1

 if any1 how much--from the government4 
,,chapter ,,ix4  ,,the ,,criminal       
,,intent4   ,it is a maxim of the common
 law that there can be no crime without 
a criminal intent4 ,and it is a         
perfectly clear principle1 although one 
which judges have in a great measure    
overthrown in practice1 that jurors are 
to judge of the moral intent of an      
accused person1 and hold him guiltless1 
whatever his act1 unless they find him  
to have acted with a criminal intent2   
that is1 with a design to do what he    
knew to be criminal4  ,this principle is
 clear1 because the question for a jury 
to determine is1 whether the accused be 
guilty1 or not guilty4 ,guilt is a      
personal quality of the actor1--not     
necessarily involved in the act1 but    
depending also upon the intent or motive
 with which the act was done4           
,consequently1 the jury must find that  
he acted from a criminal motive1 before 
they can declare him guilty4  ,there is 
no moral justice in1 nor any political  

necessity for1 punishing a man for any  
act whatever that he may have committed1
 if he have done it without any criminal
 intent4 ,there can be no moral justice 
in punishing for such an act1 because1  
there having been no criminal motive1   
there can have been no other motive     
which justice can take cognizance of1 as
 demanding or justifying punishment4    
,there can be no political necessity for
 punishing1 to warn against similar acts
 in future1 because1 if one man have    
injured another1 however                
unintentionally1 he is liable1 and      
justly liable1 to a civil suit for      
damages2 and in this suit he will be    
compelled to make compensation for the  
injury1 notwithstanding his innocence of
 any intention to injure4 ,he must bear 
the consequences of his own act1 instead
 of throwing them upon another1 however 
innocent he may have been of any        
intention to do wrong4 ,and the damages 
he will have to pay will be a sufficient
 warning to him not to do the like act  

again4  ,if it be alleged that there are
 crimes against the public1 7as treason1
 for example1 or any other resistance to
 government17 for which private persons 
can recover no damages1 and that there  
is a political necessity for punishing  
for such offences1 even though the party
 acted conscientiously1 the answer      
is1--the government must bear with all  
resistance that is not so clearly wrong 
as to give evidence of criminal intent4 
,in other words1 the government1 in all 
its acts1 must keep itself so clearly   
within the limits of justice1 as that   
twelve men1 taken at random1 will all   
agree that it is in the right1 or it    
must incur the risk of resistance1      
without any power to punish it4 ,this is
 the mode in which the trial by jury    
operates to prevent the government from 
falling into the hands of a party1 or a 
faction1 and to keep it within such     
limits as all1 or substantially all1 the
 people are agreed that it may occupy4  
,this necessity for a criminal intent1  

to justify conviction1 is proved by the 
issue which the jury are to try1 and the
 verdict they are to pronounce4 ,the    
issue they are to try is1 guilty or not 
guilty4 ,and those are the terms they   
are required to use in rendering their  
verdicts4 ,but it is a plain falsehood  
to say that a man is guilty1 unless he  
have done an act which he knew to be    
criminal4  ,this necessity for a        
criminal intent--in other words1 for    
guilt--as a preliminary to conviction1  
makes it impossible that a man can be   
rightfully convicted for an act that is 
intrinsically innocent1 though forbidden
 by the government2 because guilt is an 
intrinsic quality of actions and        
motives1 and not one that can be        
imparted to them by arbitrary           
legislation4 ,all the efforts of the    
government1 therefore1 to make offences 
by statute1 out of acts that are not    
criminal by nature1 must necessarily be 
ineffectual1 unless a jury will declare 
a man guilty for an act that is really  

innocent4  ,the corruption of judges1 in
 their attempts to uphold the arbitrary 
authority of the government1 by         
procuring the conviction of individuals 
for acts innocent in themselves1 and    
forbidden only by some tyrannical       
statute1 and the commission of which    
therefore indicates no criminal intent1 
is very apparent4  ,to accomplish this  
object1 they have in modern times held  
it to be unnecessary that indictments   
should charge1 as by the common law they
 were required to do1 that an act was   
done wickedly1 feloniously1 with malice 
aforethought1 or in any other manner    
that implied a criminal intent1 without 
which there can be no criminality2 but  
that it is sufficient to charge simply  
that it was done contrary to the form of
 the statute in such case made and      
provided4 ,this form of indictment      
proceeds plainly upon the assumption    
that the government is absolute1 and    
that it has authority to prohibit any   
act it pleases1 however innocent in its 

nature the act may be4 ,judges have been
 driven to the alternative of either    
sanctioning this new form of indictment1
 7which they never had any              
constitutional right to sanction17 or of
 seeing the authority of many of the    
statutes of the government fall to the  
ground2 because the acts forbidden by   
the statutes were so plainly innocent in
 their nature1 that even the government 
itself had not the face to allege that  
the commission of them implied or       
indicated any criminal intent4  ,to get 
rid of the necessity of showing a       
criminal intent1 and thereby further to 
enslave the people1 by reducing them to 
the necessity of a blind1 unreasoning   
submission to the arbitrary will of the 
government1 and of a surrender of all   
right1 on their own part1 to judge what 
are their constitutional and natural    
rights and liberties1 courts have       
invented another idea1 which they have  
incorporated among the pretended maxims1
 upon which they act in criminal trials1

 viz41 that ignorance of the law excuses
 no one4 ,as if it were in the nature of
 things possible that there could be an 
excuse more absolute and complete4 ,what
 else than ignorance of the law is it   
that excuses persons under the years of 
discretion1 and men of imbecile minds8  
,what else than ignorance of the law is 
it that excuses judges themselves for   
all their erroneous decisions8 ,nothing4
 ,they are every day committing errors1 
which would be crimes1 but for their    
ignorance of the law4 ,and yet these    
same judges1 who claim to be learned in 
the law1 and who yet could not hold     
their offices for a day1 but for the    
allowance which the law makes for their 
ignorance1 are continually asserting it 
to be a maxim that ignorance of the law 
excuses no one2 7by which1 of course1   
they really mean that it excuses no one 
but themselves2 and especially that it  
excuses no unlearned man1 who comes     
before them charged with crime47  ,this 
preposterous doctrine1 that ignorance of

 the law excuses no one1 is asserted by 
courts because it is an indispensable   
one to the maintenance of absolute power
 in the government4 ,it is indispensable
 for this purpose1 because1 if it be    
once admitted that the people have any  
rights and liberties which the          
government cannot lawfully take from    
them1 then the question arises in regard
 to every statute of the government1    
whether it be law1 or not2 that is1     
whether it infringe1 or not1 the rights 
and liberties of the people4 ,of this   
question every man must of course judge 
according to the light in his own mind4 
,and no man can be convicted unless the 
jury find1 not only that the statute is 
law1--that it does not infringe the     
rights and liberties of the people1--but
 also that it was so clearly law1 so    
clearly consistent with the rights and  
liberties of the people1 as that the    
individual himself1 who transgressed it1
 knew it to be so1 and therefore had no 
moral excuse for transgressing it4      

,governments see that if ignorance of   
the law were allowed to excuse a man for
 any act whatever1 it must excuse him   
for transgressing all statutes          
whatsoever1 which he himself thinks     
inconsistent with his rights and        
liberties4 ,but such a doctrine would of
 course be inconsistent with the        
maintenance of arbitrary power by the   
government2 and hence governments will  
not allow the plea1 although they will  
not confess their true reasons for      
disallowing it4  ,the only reasons1 7if 
they deserve the name of reasons71 that 
,i ever knew given for the doctrine that
 ignorance of the law excuses no one1   
are these3     #a4 ,the reason for the  
maxim is that of necessity4 ,it         
prevails1 'not    that all men know the 
law1 but because it is an excuse which  
every    man will make1 and no man can  
tell how to confute him4'--,selden1     
7as quoted in the #b;d edition of       
,starkie on ,slander1 ,prelim4 ,disc41  
p4 #adj1 note47--,law ,magazine1        

7,london17 vol4 #bg1 p4 #ig4  ,this     
reason impliedly admits that ignorance  
of the law is1 intrinsically1 an ample  
and sufficient excuse for a crime2 and  
that the excuse ought to be allowed1 if 
the fact of ignorance could but be      
ascertained4 ,but it asserts that this  
fact is incapable of being ascertained1 
and that therefore there is a necessity 
for punishing the ignorant and the      
knowing--that is1 the innocent and the  
guilty--without discrimination4  ,this  
reason is worthy of the doctrine it is  
used to uphold2 as if a plea of         
ignorance1 any more than any other plea1
 must necessarily be believed simply    
because it is urged2 and as if it were  
not a common and every-day practice of  
courts and juries1 in both civil and    
criminal cases1 to determine the mental 
capacity of individuals2 as1 for        
example1 to determine whether they are  
of sufficient mental capacity to make   
reasonable contracts2 whether they are  
lunatic2 whether they are compotes      

mentis1 of sound mind and memory1 c4 c4 
,and there is obviously no more         
difficulty in a jury's determining      
whether an accused person knew the law  
in a criminal case1 than there is in    
determining any of these other questions
 that are continually determined in     
regard to a man's mental capacity4 ,for 
the question to be settled by the jury  
is not whether the accused person knew  
the particular penalty attached to his  
act1 7for at common law no one knew what
 penalty a jury would attach to an      
offence17 but whether he knew that his  
act was intrinsically criminal4 ,if it  
were intrinsically criminal1 it was     
criminal at common law4 ,if it was not  
intrinsically criminal1 it was not      
criminal at common law4 7,at least1 such
 was the general principle of the common
 law4 ,there may have been exceptions in
 practice1 owing to the fact that the   
opinions of men1 as to what was         
intrinsically criminal1 may not have    
been in all cases correct47  ,a jury1   

then1 in judging whether an accused     
person knew his act to be illegal1 were 
bound first to use their own judgments1 
as to whether the act were intrinsically
 criminal4 ,if their own judgments told 
them the act was intrinsically and      
clearly criminal1 they would naturally  
and reasonably infer that the accused   
also understood that it was             
intrinsically criminal1 7and            
consequently illegal17 unless it should 
appear that he was either below         
themselves in the scale of intellect1 or
 had had less opportunities of knowing  
what acts were criminal4 ,in short1 they
 would judge1 from any and every means  
they might have of judging2 and if they 
had any reasonable doubt that he knew   
his act to be criminal in itself1 they  
would be bound to acquit him4  ,the     
second reason that has been offered for 
the doctrine that ignorance of the law  
excuses no one1 is this3     ,ignorance 
of the municipal law of the kingdom1 or 
of the penalty    thereby inflicted on  

offenders1 doth not excuse any that is  
of the    age of discretion and compos  
mentis1 from the penalty of the breach  
of it2 because every person1 of the age 
of discretion and compos    mentis1 is  
bound to know the law1 and presumed to  
do so4    ,ignorantia eorum1 qu quis    
scire tenetur non excusat4 7,ignorance  
of those things which every one is bound
 to know1 does not    excuse47--#a      
,hale's ,pleas of the ,crown1 #db4      
,doctor and ,student1    ,dialog4 #b1   
ch4 #df4 ,law ,magazine1 7,london17 vol4
 #bg1 p4 #ig4  ,the sum of this reason  
is1 that ignorance of the law excuses no
 one1 7who is of the age of discretion  
and is compos mentis17 because every    
such person is bound to know the law4   
,but this is giving no reason at all for
 the doctrine1 since saying that a man  
is bound to know the law1 is only       
saying1 in another form1 that ignorance 
of the law does not excuse him4 ,there  
is no difference at all in the two      
ideas4 ,to say1 therefore1 that         

ignorance of the law excuses no one1    
because every one is bound to know the  
law1 is only equivalent to saying that  
ignorance of the law excuses no one1    
because ignorance of the law excuses no 
one4 ,it is merely resserting the       
doctrine1 without giving any reason at  
all4  ,and yet these reasons1 which are 
really no reasons at all1 are the only  
ones1 so far as ,i know1 that have ever 
been offered for this absurd and brutal 
doctrine4  ,the idea suggested1 that the
 age of discretion determines the guilt 
of a person1--that there is a particular
 age1 prior to which all persons alike  
should be held incapable of knowing any 
crime1 and subsequent to which all      
persons alike should be held capable of 
knowing all crimes1--is another of this 
most ridiculous nest of ideas4 ,all     
mankind acquire their knowledge of      
crimes1 as they do of other things1     
gradually4 ,some they learn at an early 
age2 others not till a later one4 ,one  
individual acquires a knowledge of      

crimes1 as he does of arithmetic1 at an 
earlier age than others do4 ,and to     
apply the same presumption to all1 on   
the ground of age alone1 is not only    
gross injustice1 but gross folly4 ,a    
universal presumption might1 with nearly
 or quite as much reason1 be founded    
upon weight1 or height1 as upon age4#ajc
  ,this doctrine1 that ignorance of the 
law excuses no one1 is constantly       
repeated in the form that every one is  
bound to know the law4 ,the doctrine is 
true in civil matters1 especially in    
contracts1 so far as this3 that no man1 
who has the ordinary capacity to make   
reasonable contracts1 can escape the    
consequences of his own agreement1 on   
the ground that he did not know the law 
applicable to it4 ,when a man makes a   
contract1 he gives the other party      
rights2 and he must of necessity judge  
for himself1 and take his own risk1 as  
to what those rights are1--otherwise the
 contract would not be binding1 and men 
could not make contracts that would     

convey rights to each other4 ,besides1  
the capacity to make reasonable         
contracts1 implies and includes a       
capacity to form a reasonable judgment  
as to the law applicable to them4 ,but  
in criminal matters1 where the question 
is one of punishment1 or not2 where no  
second party has acquired any right to  
have the crime punished1 unless it were 
committed with criminal intent1 7but    
only to have it compensated for by      
damages in a civil suit27 and when the  
criminal intent is the only moral       
justification for the punishment1 the   
principle does not apply1 and a man is  
bound to know the law only as well as he
 reasonably may4 ,the criminal law      
requires neither impossibilities nor    
extraordinaries of any one4 ,it requires
 only thoughtfulness and a good         
conscience4 ,it requires only that a man
 fairly and properly use the judgment he
 possesses1 and the means he has of     
learning his duty4 ,it requires of him  
only the same care to know his duty in  

regard to the law1 that he is morally   
bound to use in other matters of equal  
importance4 ,and this care it does      
require of him4 ,any ignorance of the   
law1 therefore1 that is unnecessary1 or 
that arises from indifference or        
disregard of one's duty1 is no excuse4  
,an accused person1 therefore1 may be   
rightfully held responsible for such a  
knowledge of the law as is common to men
 in general1 having no greater natural  
capacities than himself1 and no greater 
opportunities for learning the law4 ,and
 he can rightfully be held to no greater
 knowledge of the law than this4 ,to    
hold him responsible for a greater      
knowledge of the law than is common to  
mankind1 when other things are equal1   
would be gross injustice and cruelty4   
,the mass of mankind can give but little
 of their attention to acquiring a      
knowledge of the law4 ,their other      
duties in life forbid it4 ,of course1   
they cannot investigate abstruse or     
difficult questions4 ,all that can      

rightfully be required of each of them1 
then1 is that he exercise such a candid 
and conscientious judgment as it is     
common for mankind generally to exercise
 in such matters4 ,if he have done this1
 it would be monstrous to punish him    
criminally for his errors2 errors not of
 conscience1 but only of judgment4 ,it  
would also be contrary to the first     
principles of a free government 7that   
is1 a government formed by voluntary    
association7 to punish men in such      
cases1 because it would be absurd to    
suppose that any man would voluntarily  
assist to establish or support a        
government that would punish himself for
 acts which he himself did not know to  
be crimes4 ,but a man may reasonably    
unite with his fellow-men to maintain a 
government to punish those acts which he
 himself considers criminal1 and may    
reasonably acquiesce in his own         
liability to be punished for such acts4 
,as those are the only grounds on which 
any one can be supposed to render any   

voluntary support to a government1 it   
follows that a government formed by     
voluntary association1 and of course    
having no powers except such as all the 
associates have consented that it may   
have1 can have no power to punish a man 
for acts which he did not himself know  
to be criminal4  ,the safety of society1
 which is the only object of the        
criminal law1 requires only that those  
acts which are understood by mankind at 
large to be intrinsically criminal1     
should be punished as crimes4 ,the      
remaining few 7if there are any7 may    
safely be left to go unpunished4 ,nor   
does the safety of society require that 
any individuals1 other than those who   
have sufficient mental capacity to      
understand that their acts are criminal1
 should be criminally punished4 ,all    
others may safely be left to their      
liability1 under the civil law1 to      
compensate for their unintentional      
wrongs4  ,the only real object of this  
absurd and atrocious doctrine1 that     

ignorance of the law 7that is1 of crime7
 excuses no one1 and that every one is  
bound to know the criminal law1 7that   
is1 bound to know what is a crime17 is  
to maintain an entirely arbitrary       
authority on the part of the government1
 and to deny to the people all right to 
judge for themselves what their own     
rights and liberties are4 ,in other     
words1 the whole object of the doctrine 
is to deny to the people themselves all 
right to judge what statutes and other  
acts of the government are consistent or
 inconsistent with their own rights and 
liberties2 and thus to reduce the people
 to the condition of mere slaves to a   
despotic power1 such as the people      
themselves would never have voluntarily 
established1 and the justice of whose   
laws the people themselves cannot       
understand4  ,under the true trial by   
jury all tyranny of this kind would be  
abolished4 ,a jury would not only judge 
what acts were really criminal1 but they
 would judge of the mental capacity of  

an accused person1 and of his           
opportunities for understanding the true
 character of his conduct4 ,in short1   
they would judge of his moral intent    
from all the circumstances of the case1 
and acquit him1 if they had any         
reasonable doubt that he knew that he   
was committing a crime4#ajd  ,footnote  
#ajc3 ,this presumption1 founded upon   
age alone1 is as absurd in civil matters
 as in criminal4 ,what can be more      
entirely ludicrous than the idea that   
all men 7not manifestly imbecile7 become
 mentally competent to make all         
contracts whatsoever on the day they    
become twenty-one years of age8--and    
that1 previous to that day1 no man      
becomes competent to make any contract  
whatever1 except for the present supply 
of the most obvious wants of nature8 ,in
 reason1 a man's legal competency to    
make binding contracts1 in any and every
 case whatever1 depends wholly upon his 
mental capacity to make reasonable      
contracts in each particular case4 ,it  

of course requires more capacity to make
 a reasonable contract in some cases    
than in others4 ,it requires1 for       
example1 more capacity to make a        
reasonable contract in the purchase of a
 large estate1 than in the purchase of a
 pair of shoes4 ,but the mental capacity
 to make a reasonable contract1 in any  
particular case1 is1 in reason1 the only
 legal criterion of the legal competency
 to make a binding contract in that     
case4 ,the age1 whether more or less    
than twenty-one years1 is of no legal   
consequence whatever1 except that it is 
entitled to some consideration as       
evidence of capacity4  ,it may be       
mentioned1 in this connection1 that the 
rules that prevail1 that every man is   
entitled to freedom from parental       
authority at twenty-one years of age1   
and no one before that age1 are of the  
same class of absurdities with those    
that have been mentioned4 ,the only     
ground on which a parent is ever        
entitled to exercise authority over his 

child1 is that the child is incapable of
 taking reasonable care of himself4 ,the
 child would be entitled to his freedom 
from his birth1 if he were at that time 
capable of taking reasonable care of    
himself4 ,some become capable of taking 
care of themselves at an earlier age    
than others4 ,and whenever any one      
becomes capable of taking reasonable    
care of himself1 and not until then1 he 
is entitled to his freedom1 be his age  
more or less4  ,these principles would  
prevail under the true trial by jury1   
the jury being the judges of the        
capacity of every individual whose      
capacity should be called in question4  
,footnote #ajd3 ,in contrast to the     
doctrines of the text1 it may be proper 
to present more distinctly the doctrines
 that are maintained by judges1 and that
 prevail in courts of justice4  ,of     
course1 no judge1 either of the present 
day1 or perhaps within the last five    
hundred years1 has admitted the right of
 a jury to judge of the justice of a    

law1 or to hold any law invalid for its 
injustice4 ,every judge asserts the     
power of the government to punish for   
acts that are intrinsically innocent1   
and which therefore involve or evince no
 criminal intent4 ,to accommodate the   
administration of law to this principle1
 all judges1 so far as ,i am aware1 hold
 it to be unnecessary that an indictment
 should charge1 or that a jury should   
find1 that an act was done with a       
criminal intent1 except in those cases  
where the act is malum in se1--criminal 
in itself4 ,in all other cases1 so far  
as ,i am aware1 they hold it sufficient 
that the indictment charge1 and         
consequently that the jury find1 simply 
that the act was done contrary to the   
form of the statute in such case made   
and provided2 in other words1 contrary  
to the orders of the government4  ,all  
these doctrines prevail universally     
among judges1 and are1 ,i think1        
uniformly practised upon in courts of   
justice2 and they plainly involve the   

most absolute despotism on the part of  
the government4  ,but there is still    
another doctrine that extensively1 and  
perhaps most generally1 prevails in     
practice1 although judges are not agreed
 in regard to its soundness4 ,it is     
this3 that it is not even necessary that
 the jury should see or know1 for       
themselves1 what the law is that is     
charged to have been violated2 nor to   
see or know1 for themselves1 that the   
act charged was in violation of any law 
whatever2--but that it is sufficient    
that they be simply told by the judge   
that any act whatever1 charged in an    
indictment1 is in violation of law1 and 
that they are then bound blindly to     
receive the declaration as true1 and    
convict a man accordingly1 if they find 
that he has done the act charged4  ,this
 doctrine is adopted by many among the  
most eminent judges1 and the reasons for
 it are thus given by ,lord ,mansfield3 
,they 7the jury7 do not know1 and are   
not presumed to know1 the law4    ,they 

are not sworn to decide the law2#aje    
they are not required to    do it4444   
,the jury ought not to assume the       
jurisdiction of law4 ,they    do not    
know1 and are not presumed to know1     
anything of the matter4    ,they do not 
understand the language in which it is  
conceived1 or the    meaning of the     
terms4 ,they have no rule to go by but  
their passions    and wishes4--#c ,term 
,rep41 #dbh1 note4  ,what is this but   
saying that the people1 who are supposed
 to be represented in juries1 and who   
institute and support the government1   
7of course for the protection of their  
own rights and liberties1 as they       
understand them1 for plainly no other   
motive can be attributed to them17 are  
really the slaves of a despotic power1  
whose arbitrary commands even they are  
not supposed competent to understand1   
but for the transgression of which they 
are nevertheless to be punished as      
criminals8  ,this is plainly the sum of 
the doctrine1 because the jury are the  

peers 7equals7 of the accused1 and are  
therefore supposed to know the law as   
well as he does1 and as well as it is   
known by the people at large4 ,if they  
7the jury7 are not presumed to know the 
law1 neither the accused nor the people 
at large can be presumed to know it4    
,hence1 it follows that one principle of
 the true trial by jury is1 that no     
accused person shall be held responsible
 for any other or greater knowledge of  
the law than is common to his political 
equals1 who will generally be men of    
nearly similar condition in life4 ,but  
the doctrine of ,mansfield is1 that the 
body of the people1 from whom jurors are
 taken1 are responsible to a law1 which 
it is agreed they cannot understand4    
,what is this but despotism8--and not   
merely despotism1 but insult and        
oppression of the intensest kind8  ,this
 doctrine of ,mansfield is the doctrine 
of all who deny the right of juries to  
judge of the law1 although all may not  
choose to express it in so blunt and    

unambiguous terms4 ,but the doctrine    
evidently admits of no other            
interpretation or defence4  ,footnote   
#aje3 ,this declaration of ,mansfield1  
that juries in ,england are not sworn to
 decide the law in criminal cases1 is a 
plain falsehood4 ,they are sworn to try 
the whole case at issue between the king
 and the prisoner1 and that includes the
 law as well as the fact4 ,see juror's  
oath1 page #hf4     ,,chapter ,x4       
,,moral ,,considerations ,,for ,,jurors4
   ,the trial by jury must1 if possible1
 be construed to be such that a man can 
rightfully sit in a jury1 and unite with
 his fellows in giving judgment4 ,but no
 man can rightfully do this1 unless he  
hold in his own hand alone a veto upon  
any judgment or sentence whatever to be 
rendered by the jury against a          
defendant1 which veto he must be        
permitted to use according to his own   
discretion and conscience1 and not bound
 to use according to the dictation of   
either legislatures or judges4  ,the    

prevalent idea1 that a juror may1 at the
 mere dictation of a legislature or a   
judge1 and without the concurrence of   
his own conscience or understanding1    
declare a man guilty1 and thus in effect
 license the government to punish him2  
and that the legislature or the judge1  
and not himself1 has in that case all   
the moral responsibility for the        
correctness of the principles on which  
the judgment was rendered1 is one of the
 many gross impostures by which it could
 hardly have been supposed that any sane
 man could ever have been deluded1 but  
which governments have nevertheless     
succeeded in inducing the people at     
large to receive and act upon4  ,as a   
moral proposition1 it is perfectly      
self-evident that1 unless juries have   
all the legal rights that have been     
claimed for them in the preceding       
chapters1--that is1 the rights of       
judging what the law is1 whether the law
 be a just one1 what evidence is        
admissible1 what weight the evidence is 

entitled to1 whether an act were done   
with a criminal intent1 and the right   
also to limit the sentence1 free of all 
dictation from any quarter1--they have  
no moral right to sit in the trial at   
all1 and cannot do so without making    
themselves accomplices in any injustice 
that they may have reason to believe may
 result from their verdict4 ,it is      
absurd to say that they have no moral   
responsibility for the use that may be  
made of their verdict by the government1
 when they have reason to suppose it    
will be used for purposes of injustice4 
,it is1 for instance1 manifestly absurd 
to say that jurors have no moral        
responsibility for the enforcement of an
 unjust law1 when they consent to render
 a verdict of guilty for the            
transgression of it2 which verdict they 
know1 or have good reason to believe1   
will be used by the government as a     
justification for inflicting a penalty4 
,it is absurd1 also1 to say that jurors 
have no moral responsibility for a      

punishment inflicted upon a man against 
law1 when1 at the dictation of a judge  
as to what the law is1 they have        
consented to render a verdict against   
their own opinions of the law4  ,it is  
absurd1 too1 to say that jurors have no 
moral responsibility for the conviction 
and punishment of an innocent man1 when 
they consent to render a verdict against
 him on the strength of evidence1 or    
laws of evidence1 dictated to them by   
the court1 if any evidence or laws of   
evidence have been excluded1 which they 
7the jurors7 think ought to have been   
admitted in his defence4  ,it is absurd 
to say that jurors have no moral        
responsibility for rendering a verdict  
of guilty against a man1 for an act     
which he did not know to be a crime1 and
 in the commission of which1 therefore1 
he could have had no criminal intent1 in
 obedience to the instructions of courts
 that ignorance of the law 7that is1 of 
crime7 excuses no one4  ,it is absurd1  
also1 to say that jurors have no moral  

responsibility for any cruel or         
unreasonable sentence that may be       
inflicted even upon a guilty man1 when  
they consent to render a verdict which  
they have reason to believe will be used
 by the government as a justification   
for the infliction of such sentence4    
,the consequence is1 that jurors must   
have the whole case in their hands1 and 
judge of law1 evidence1 and sentence1 or
 they incur the moral responsibility of 
accomplices in any injustice which they 
have reason to believe will be done by  
the government on the authority of their
 verdict4  ,the same principles apply to
 civil cases as to criminal4 ,if a jury 
consent1 at the dictation of the court1 
as to either law or evidence1 to render 
a verdict1 on the strength of which they
 have reason to believe that a man's    
property will be taken from him and     
given to another1 against their own     
notions of justice1 they make themselves
 morally responsible for the wrong4     
,every man1 therefore1 ought to refuse  

to sit in a jury1 and to take the oath  
of a juror1 unless the form of the oath 
be such as to allow him to use his own  
judgment1 on every part of the case1    
free of all dictation whatsoever1 and to
 hold in his own hand a veto upon any   
verdict that can be rendered against a  
defendant1 and any sentence that can be 
inflicted upon him1 even if he be       
guilty4  ,of course1 no man can         
rightfully take an oath as juror1 to try
 a case according to law1 7if by law be 
meant anything other than his own ideas 
of justice17 nor according to the law   
and the evidence1 as they shall be given
 him4 ,nor can he rightfully take an    
oath even to try a case according to the
 evidence1 because in all cases he may  
have good reason to believe that a party
 has been unable to produce all the     
evidence legitimately entitled to be    
received4 ,the only oath which it would 
seem that a man can rightfully take as  
juror1 in either a civil or criminal    
case1 is1 that he will try the case     

according to his conscience4 ,of course1
 the form may admit of variation1 but   
this should be the substance4 ,such1 we 
have seen1 were the ancient common law  
oaths4     ,,chapter ,,xi4  ,,authority 
,,of ,,magna ,,carta4   ,probably no    
political compact between king and      
people was ever entered into in a manner
 to settle more authoritatively the     
fundamental law of a nation1 than was   
,magna ,carta4 ,probably no people were 
ever more united and resolute in        
demanding from their king a definite and
 unambiguous acknowledgment of their    
rights and liberties1 than were the     
,english at that time4 ,probably no king
 was ever more completely stripped of   
all power to maintain his throne1 and at
 the same time resist the demands of his
 people1 than was ,john on the #aeth day
 of ,june1 #abae4 ,probably no king ever
 consented1 more deliberately or        
explicitly1 to hold his throne subject  
to specific and enumerated limitations  
upon his power1 than did ,john when he  

put his seal to the ,great ,charter of  
the ,liberties of ,england4 ,and if any 
political compact between king and      
people was ever valid to settle the     
liberties of the people1 or to limit the
 power of the crown1 that compact is now
 to be found in ,magna ,carta4 ,if1     
therefore1 the constitutional authority 
of ,magna ,carta had rested solely upon 
the compact of ,john with his people1   
that authority would have been entitled 
to stand forever as the supreme law of  
the land1 unless revoked by the will of 
the people themselves4  ,but the        
authority of ,magna ,carta does not rest
 alone upon the compact with ,john4     
,when1 in the next year1 7#abaf17 his   
son1 ,henry ,,iii41 came to the throne1 
the charter was ratified by him1 and    
again in #abag1 and again in #abbe1 in  
substantially the same form1 and        
especially without allowing any new     
powers1 legislative1 judicial1 or       
executive1 to the king or his judges1   
and without detracting in the least from

 the powers of the jury4 ,and from the  
latter date to this1 the charter has    
remained unchanged4  ,in the course of  
two hundred years the charter was       
confirmed by ,henry and his successors  
more than thirty times4 ,and although   
they were guilty of numerous and almost 
continual breaches of it1 and were      
constantly seeking to evade it1 yet such
 were the spirit1 vigilance and courage 
of the nation1 that the kings held their
 thrones only on the condition of their 
renewed and solemn promises of          
observance4 ,and it was not until #adbi1
 7as will be more fully shown           
hereafter17 when a truce between        
themselves1 and a formal combination    
against the mass of the people1 had been
 entered into1 by the king1 the         
nobility1 and the forty shilling        
freeholders1 7a class whom ,mackintosh  
designates as a few freeholders then    
accounted wealthy1#ajf7 by the exclusion
 of all others than such freeholders    
from all voice in the election of       

knights to represent the counties in the
 ,house of ,commons1 that a repetition  
of these confirmations of ,magna ,carta 
ceased to be demanded and obtained4#ajg 
,the terms and the formalities of some  
of these confirmations make them worthy 
of insertion at length4  ,hume thus     
describes one which took place in the   
#chth year of ,henry ,,iii4 7#abec73    
,but as they 7the barons7 had           
experienced his 7the king's7 frequent   
breach of promise1 they required that he
 should ratify the ,great    ,charter in
 a manner still more authentic and      
solemn than any which he    had hitherto
 employed4 ,all the prelates and abbots 
were assembled4    ,they held burning   
tapers in their hands4 ,the ,great      
,charter was read    before them4 ,they 
denounced the sentence of               
excommunication against    every one who
 should thenceforth violate that        
fundamental law4 ,they    threw their   
tapers on the ground1 and exclaimed1    
,may the soul of    every one who incurs

 this sentence so stink and corrupt in  
hell6 ,the    king bore a part in this  
ceremony1 and subjoined1 ',so help me   
,god6 ,i    will keep all these articles
 inviolate1 as ,i am a man1 as ,i am a  
,christian1 as ,i am a knight1 and as ,i
 am a king crowned and                  
anointed4'--,hume1 ch4 #ab4 ,see also   
,blackstone's ,introd4 to the           
,charters4 ,black4 ,law ,tracts1 ,oxford
 ed41 p4 #ccb4 ,mackintosh's ,hist4     
of ,eng41 ch4 #c4 ,lardner's ,cab4      
,cyc41 vol4 #de1 p4 #bcc-d4  ,the       
following is the form of the sentence of
 excommunication referred to by ,hume3  
,the ,sentence of ,curse1 ,given by the 
,bishops1 against the ,breakers    of   
the ,charters4     ,the year of our     
,lord a thousand two hundred and        
fifty-three1 the    third day of ,may1  
in the great ,hall of the ,king at      
,westminster1 in    the presence1 and by
 the assent1 of the ,lord ,henry1 by the
 ,grace of    ,god ,king of ,england1   
and the ,lords ,richard1 ,earl of       

,cornwall1 his    brother1 ,roger       
7,bigot7 ,earl of ,norfolk and ,suffolk1
 marshal of    ,england1 ,humphrey1     
,earl of ,hereford1 ,henry1 ,earl of    
,oxford1 ,john1    ,earl of ,warwick1   
and other estates of the ,realm of      
,england3 ,we1    ,boniface1 by the     
mercy of ,god ,archbishop of            
,canterbury1 ,primate of    all         
,england1 ,f4 of ,london1 ,h4 of ,ely1  
,s4 of ,worcester1 ,e4 of ,lincoln1     
,w4 of ,norwich1 ,p4 of ,hereford1 ,w4  
of ,salisbury1 ,w4 of ,durham1 ,r4 of   
,exeter1 ,m4 of ,carlisle1 ,w4 of ,bath1
 ,e4 of ,rochester1 ,t4 of ,saint       
,david's1 ,bishops1 apparelled in       
,pontificals1 with tapers burning1      
against the breakers of the ,church's   
,liberties1 and of the ,liberties    or 
free customs of the ,realm of ,england1 
and especially of those    which are    
contained in the ,charter of the ,common
 ,liberties of the    ,realm1 and the   
,charter of the ,forest1 have solemnly  
denounced the    sentence of            

,excommunication in this form4 ,by the  
authority of    ,almighty ,god1 the     
,father1 the ,son1 and the ,holy ,ghost1
 and of the    glorious ,mother of ,god1
 and perpetual ,virgin ,mary1 of the    
blessed    ,apostles ,peter and ,paul1  
and of all apostles1 of the blessed     
,thomas1    ,archbishop and ,martyr1 and
 of all martyrs1 of blessed ,edward of  
,england1 and of all ,confessors and    
virgins1 and of all the saints of       
heaven3 ,we excommunicate1 accurse1 and 
from the thresholds    7liminibus7 of   
our ,holy ,mother the ,church1 ,we      
sequester1 all those    that hereafter  
willingly and maliciously deprive or    
spoil the ,church    of her right3 ,and 
all those that by any craft or wiliness 
do violate1    break1 diminish1 or      
change the ,church's ,liberties1 or the 
ancient    approved customs of the      
,realm1 and especially the ,liberties   
and free    ,customs contained in the   
,charters of the ,common ,liberties1 and
 of the    ,forest1 conceded by our     

,lord the ,king1 to ,archbishops1       
,bishops1 and    other ,prelates of     
,england2 and likewise to the ,earls1   
,barons1    ,knights1 and other         
,freeholders of the ,realm3 ,and all    
that secretly1    or openly1 by deed1   
word1 or counsel1 do make statutes1 or  
observe    them being made1 and that    
bring in ,customs1 or keep them when    
they    be brought in1 against the said 
,liberties1 or any of them1 the         
,writers and ,counsellors of said       
statutes1 and the ,executors of them1   
and all those that shall presume to     
judge according to them4 ,all and       
every which persons before mentioned1   
that wittingly shall commit    anything 
of the premises1 let them well know that
 they incur the    aforesaid sentence1  
ipso facto1 7i4e41 upon the deed being  
done47    ,and those that ignorantly do 
so1 and be admonished1 except they      
reform themselves within fifteen days   
after the time of the    admonition1 and
 make full satisfaction for that they   

have done1 at    the will of the        
ordinary1 shall be from that time forth 
included in    the same sentence4 ,and  
with the same sentence we burden all    
those    that presume to perturb the    
peace of our sovereign ,lord the ,king1 
and    of the ,realm4 ,to the perpetual 
memory of which thing1 ,we1 the         
aforesaid ,prelates1 have put our seals 
to these presents4--,statutes    of the 
,realm1 vol4 #a1 p4 #f4 ,ruffhead's     
,statutes1 vol4 #a1 p4 #bj4  ,one of the
 ,confirmations of the ,charters1 by    
,edward ,i41 was by statute1 in the     
#beth year of his reign1 7#abig17 in the
 following terms4 ,the statute is       
usually entitled ,confirmatio ,cartarum1
 7,confirmation of the ,charters47      
,ch4 #a4 ,edward1 by the ,grace of ,god1
 ,king of ,england1 ,lord of            
,ireland1 and ,duke of ,guyan1 ,to all  
those that these presents shall    hear 
or see1 ,greeting4 ,know ye1 that ,we1  
to the honor of ,god1 and of    ,holy   
,church1 and to the profit of our       

,realm1 have granted1 for us and    our 
heirs1 that the ,charter of ,liberties1 
and the ,charter of the    ,forest1     
which were made by common assent of all 
the ,realm1 in the    time of ,king     
,henry our ,father1 shall be kept in    
every point without    breach4 ,and we  
will that the same ,charters shall be   
sent under our    seal1 as well to our  
justices of the ,forest1 as to others1  
and to all    ,sheriffs of shires1 and  
to all our other officers1 and to all   
our    cities throughout the ,realm1    
together with our writs1 in the which it
    shall be contained1 that they cause 
the aforesaid ,charters to be           
published1 and to declare to the people 
that ,we have confirmed them    at all  
points2 and to our ,justices1 ,sheriffs1
 ,mayors1 and other    ministers1 which 
under us have the ,laws of our ,land to 
guide1 that    they allow the same      
,charters1 in all their points1 in pleas
 before    them1 and in judgment2 that  
is1 to wit1 the ,great ,charter as the  

,common ,law1 and the ,charter of the   
,forest for the wealth of our    ,realm4
     ,ch4 #b4 ,and we will that if any  
judgment be given from henceforth       
contrary to the points of the charters  
aforesaid by the justices1 or    by any 
others our ministers that hold plea     
before them1 against the    points of   
the ,charters1 it shall be undone and   
holden for naught4     ,ch4 #c4 ,and we 
will1 that the same ,charters shall be  
sent1 under    our seal1 to ,cathedral  
,churches throughout our ,realm1 there  
to    remain1 and shall be read before  
the people two times in the year4       
,ch4 #d4 ,and that all ,archbishops and 
,bishops shall pronounce the    sentence
 of excommunication against all those   
that by word1 deed1 or    counsel1 do   
contrary to the foresaid charters1 or   
that in any point    break or undo them4
 ,and that the said ,curses be twice a  
year    denounced and published by the  
prelates aforesaid4 ,and if the same    
prelates1 or any of them1 be remiss in  

the denunciation of the said            
sentences1 the ,archbishops of          
,canterbury and ,york1 for the time     
being1 shall compel and distrain them to
 make the denunciation in the    form   
aforesaid4--,st4 #be ,edward ,i41       
7#abig47 ,statutes of the    ,realm1    
vol4 #a1 p4 #abc4  ,it is unnecessary to
 repeat the terms of the various        
confirmations1 most of which were less  
formal than those that have been given1 
though of course equally authoritative4 
,most of them are brief1 and in the form
 of a simple statute1 or promise1 to the
 effect that ,the ,great ,charter1 and  
the ,charter of the ,forest1 shall be   
firmly kept and maintained in all       
points4 ,they are to be found printed   
with the other statutes of the realm4   
,one of them1 after having again        
granted1 renewed and confirmed the      
charters1 requires as follows3     ,that
 the ,charters be delivered to every    
sheriff of ,england under the    king's 
seal1 to be read four times in the year 

before the people in    the full county1
 7that is1 at the county court17 that   
is1 to wit1    the next county 7court7  
after the feast of ,saint ,michael1 and 
the    next county 7court7 after        
,christmas1 and at the next county      
7court7    after ,easter1 and at the    
next county 7court7 after the feast of  
,saint    ,john4--#bh ,edward ,i41 ch4  
#a1 7#acjj47     ,lingard says1 ,the    
,charter was ratified four times by     
,henry ,,iii41    twice by ,edward ,i41 
fifteen times by ,edward ,,iii41 seven  
times by    ,richard ,,ii41 six times by
 ,henry ,,iv41 and once by ,henry ,v42  
making    thirty-five times in all4--#c 
,lingard1 #ej1 note1 ,philad4 ed4  ,coke
 says ,magna ,carta was confirmed       
thirty-two times4--,preface to #b       
,inst41 p4 #f4     ,lingard calls these 
thirty-five successive ratifications of 
the    charter1 a sufficient proof how  
much its provisions were abhorred    by 
the sovereign1 and how highly they were 
prized by the nation4--#c    ,lingard1  

#ej4     ,mackintosh says1 ,for almost  
five centuries 7that is1 until #afhh7 it
    7,magna ,carta7 was appealed to as  
the decisive authority on behalf of     
the people1 though commonly so far only 
as the necessities of each    case      
demanded4--,mackintosh's ,hist4 of ,eng4
 ch4 #c4 #de ,lardner's    ,cab4 ,cyc41 
#bba4  ,coke1 who has labored so hard to
 overthrow the most vital principles of 
,magna ,carta1 and who1 therefore1 ought
 to be considered good authority when he
 speaks in its favor1#ajh says3     ,it 
is called ,magna ,carta1 not that it is 
great in quantity1 for    there be many 
voluminous charters commonly passed1    
specially in these    later times1      
longer than this is2 nor comparatively  
in respect that    it is greater than   
,charta de ,foresta1 but in respect of  
the great    importance and weightiness 
of the matter1 as hereafter shall       
appear2    and likewise for the same    
cause ,charta de ,foresta2 and both of  
them    are called ,magn ,chart         

,libertatum ,angli1 7,the ,great        
,charters of    the ,liberties of       
,england47 444     ,and it is also      
called ,charta ,libertatum regni1       
7,charter of the    ,liberties of the   
kingdom27 and upon great reason it is so
 called of    the effect1 quia liberos  
facit1 7because it makes men free47     
,sometime for the same cause 7it is     
called7 communis libertas1    7common   
liberty17 and le chartre des franchises1
 7the charter of    franchises47 444    
,it was for the most part declaratory of
 the principal grounds of the           
fundamental laws of ,england1 and for   
the residue it is additional to         
supply some defects of the common       
law4444     ,also1 by the said act of   
#be ,edward ,i41 7called ,confirmatio   
,chartarum17 it is adjudged in          
parliament that the ,great ,charter and 
the ,charter of the ,forest shall be    
taken as the common law4444     ,they   
7,magna ,carta and ,carta de ,foresta7  
were1 for the most part1 but            

declarations of the ancient common laws 
of ,england1 to the    observation and  
keeping whereof1 the king was bound and 
sworn4     ,after the making of ,magna  
,charta1 and ,charta de ,foresta1 divers
    learned men in the laws1 that ,i may
 use the words of the record1 kept      
schools of the law in the city of       
,london1 and taught such as resorted    
to them the laws of the realm1 taking   
their foundation of ,magna    ,charta   
and ,charta de ,foresta4     ,and the   
said two charters have been confirmed1  
established1 and    commanded to be put 
in execution by thirty-two several acts 
of    parliament in all4     ,this      
appeareth partly by that which hath been
 said1 for that it hath    so often been
 confirmed by the wise providence of so 
many acts of    parliament4     ,and    
albeit judgments in the king's courts   
are of high regard in law1    and       
judicia 7judgments7 are accounted as    
jurisdicta1 7the speech    of the law   
itself17 yet it is provided by act of   

parliament1 that if    any judgment be  
given contrary to any of the points of  
the ,great    ,charter and ,charta de   
,foresta1 by the justices1 or by any    
other of    the king's ministers1 c41 it
 shall be undone1 and holden for naught4
     ,and that both the said charters   
shall be sent under the great seal    to
 all cathedral churches throughout the  
realm1 there to remain1 and    shall be 
read to the people twice every year4    
,the highest and most binding laws are  
the statutes which are    established by
 parliament2 and by authority of that   
highest court it    is enacted 7only to 
show their tender care of ,magna ,carta 
and ,carta    de ,foresta7 that if any  
statute be made contrary to the ,great  
,charter1 or the ,charter of the        
,forest1 that shall be holden for none2 
by which words all former statutes made 
against either of those    charters are 
now repealed2 and the nobles and great  
officers were to    be sworn to the     
observation of ,magna ,charta and       

,charta de ,foresta4     ,magna fuit    
quondam magn reverentia chart4 7,great  
was formerly    the reverence for ,magna
 ,carta47--,coke's ,proem to #b ,inst41 
p4 #a to    #g4  ,coke also says1 ,all  
pretence of prerogative against ,magna  
,charta is taken away4--#b ,inst41 #cf4 
,he also says1 ,that after this         
parliament 7#eb ,henry ,,iii41 in #abfg7
 neither ,magna ,carta nor ,carta de    
,foresta was ever attempted to be       
impugned or questioned4--#b ,inst41     
#ajb4aji  ,to give all the evidence of  
the authority of ,magna ,carta1 it would
 be necessary to give the constitutional
 history of ,england since the year     
#abae4 ,this history would show that    
,magna ,carta1 although continually     
violated and evaded1 was still          
acknowledged as law by the government1  
and was held up by the people as the    
great standard and proof of their rights
 and liberties4 ,it would show also that
 the judicial tribunals1 whenever it    
suited their purposes to do so1 were in 

the habit of referring to ,magna ,carta 
as authority1 in the same manner1 and   
with the same real or pretended         
veneration1 with which ,american courts 
now refer to the constitution of the    
,united ,states1 or the constitutions of
 the states4 ,and1 what is equally to   
the point1 it would show that these same
 tribunals1 the mere tools of kings and 
parliaments1 would resort to the same   
artifices of assumption1 precedent1     
construction1 and false interpretation1 
to evade the requirements of ,magna     
,carta1 and to emasculate it of all its 
power for the preservation of liberty1  
that are resorted to by ,american courts
 to accomplish the same work on our     
,american constitutions4  ,i take it for
 granted1 therefore1 that if the        
authority of ,magna ,carta had rested   
simply upon its character as a compact  
between the king and the people1 it     
would have been forever binding upon the
 king1 7that is1 upon the government1   
for the king was the government17 in his

 legislative1 judicial1 and executive   
character2 and that there was no        
constitutional possibility of his       
escaping from its restraints1 unless the
 people themselves should freely        
discharge him from them4  ,but the      
authority of ,magna ,carta does not     
rest1 either wholly or mainly1 upon its 
character as a compact4 ,for centuries  
before the charter was granted1 its main
 principles constituted the ,law of the 
,land1--the fundamental and             
constitutional law of the realm1 which  
the kings were sworn to maintain4 ,and  
the principal benefit of the charter    
was1 that it contained a written        
description and acknowledgment1 by the  
king himself1 of what the constitutional
 law of the kingdom was1 which his      
coronation oath bound him to observe4   
,previous to ,magna ,carta1 this        
constitutional law rested mainly in     
precedents1 customs1 and the memories of
 the people4 ,and if the king could but 
make one innovation upon this law1      

without arousing resistance1 and being  
compelled to retreat from his           
usurpation1 he would cite that          
innovation as a precedent for another   
act of the same kind2 next1 assert a    
custom2 and1 finally1 raise a           
controversy as to what the ,law of the  
,land really was4 ,the great object of  
the barons and people1 in demanding from
 the king a written description and     
acknowledgment of the ,law of the ,land1
 was to put an end to all disputes of   
this kind1 and to put it out of the     
power of the king to plead any          
misunderstanding of the constitutional  
law of the kingdom4 ,and the charter1 no
 doubt1 accomplished very much in this  
way4 ,after ,magna ,carta1 it required  
much more audacity1 cunning1 or         
strength1 on the part of the king1 than 
it had before1 to invade the people's   
liberties with impunity4 ,still1 ,magna 
,carta1 like all other written          
constitutions1 proved inadequate to the 
full accomplishment of its purpose2 for 

when did a parchment ever have power    
adequately to restrain a government1    
that had either cunning to evade its    
requirements1 or strength to overcome   
those who attempted its defence8 ,the   
work of usurpation1 therefore1 though   
seriously checked1 still went on1 to a  
great extent1 after ,magna ,carta4      
,innovations upon the ,law of the ,land 
are still made by the government4 ,one  
innovation was cited as a precedent2    
precedents made customs2 and customs    
became laws1 so far as practice was     
concerned2 until the government1        
composed of the king1 the high          
functionaries of the church1 the        
nobility1 a ,house of ,commons          
representing the forty shilling         
freeholders1 and a dependent and servile
 judiciary1 all acting in conspiracy    
against the mass of the people1 became  
practically absolute1 as it is at this  
day4  ,as proof that ,magna ,carta      
embraced little else than what was      
previously recognized as the common law1

 or ,law of the ,land1 ,i repeat some   
authorities that have been already      
cited4     ,crabbe says1 ,it is admitted
 on all hands that it 7,magna ,carta7   
contains nothing but what was           
confirmatory of the common law and the  
ancient usages of the realm2 and is1    
properly speaking1 only an              
enlargement of the charter of ,henry ,i4
 and his    successors4--,crabbe's      
,hist4 of the ,eng4 ,law1 p4 #abg4      
,blackstone says1 ,it is agreed by all  
our historians that the ,great          
,charter of ,king ,john was1 for the    
most part1 compiled from the    ancient 
customs of the realm1 or the laws of    
,edward the ,confessor2 by    which they
 mean the old common law which was      
established under our    ,saxon         
princes4--,blackstone's ,introd4 to the 
,charters4 ,see    ,blackstone's ,law   
,tracts1 ,oxford ed41 p4 #bhi4     ,coke
 says1 ,the common law is the most      
general and ancient law of    the       
realm4444 ,the common law appeareth in  

the statute of ,magna    ,carta1 and    
other ancient statutes1 7which for the  
most part are    affirmations of the    
common law17 in the original writs1 in  
judicial    records1 and in our books of
 terms and years4--#a ,inst41 #aae b4   
,coke also says1 ,it 7,magna ,carta7 was
 for the most part declaratory    of the
 principal grounds of the fundamental   
laws of ,england1 and for    the residue
 it was additional to supply some       
defects of the common    law4444 ,they  
7,magna ,carta and ,carta de ,foresta7  
were1 for the most    part1 but         
declarations of the ancient common laws 
of ,england1 to the    observation and  
keeping whereof the king was bound and  
sworn4--,preface to #b ,inst41 p4 #c and
 #e4     ,hume says1 ,we may now1 from  
the tenor of this charter1 7,magna      
,carta17 conjecture what those laws were
 of ,king ,edward1 7the    ,confessor17 
which the ,english nation during so many
 generations still    desired1 with such
 an obstinate perseverance1 to have     

recalled and    established4 ,they were 
chiefly these latter articles of ,magna 
,carta2    and the barons who1 at the   
beginning of these commotions1 demanded 
the revival of the ,saxon laws1         
undoubtedly thought that they had       
sufficiently satisfied the people1 by   
procuring them this concession1    which
 comprehended the principal objects to  
which they had so long                  
aspired4--,hume1 ch4 #aa4  ,edward the  
,first confessed that the ,great        
,charter was substantially identical    
with the common law1 as far as it went1 
when he commanded his justices to allow 
the ,great ,charter as the ,common ,law1
 in pleas before them1 and in judgment1 
as has been already cited in this       
chapter4--#be ,edward ,i41 ch4 #a1      
7#abig47  ,in conclusion of this        
chapter1 it may be safely asserted that 
the veneration1 attachment1 and pride1  
which the ,english nation1 for more than
 six centuries1 have felt towards ,magna
 ,carta1 are in their nature among the  

most irrefragable of all proofs that it 
was the fundamental law of the land1 and
 constitutionally binding upon the      
government2 for1 otherwise1 it would    
have been1 in their eyes1 an unimportant
 and worthless thing4 ,what those       
sentiments were ,i will use the words of
 others to describe1--the words1 too1 of
 men1 who1 like all modern authors who  
have written on the same topic1 had     
utterly inadequate ideas of the true    
character of the instrument on which    
they lavished their eulogiums4  ,hume1  
speaking of the ,great ,charter and the 
,charter of the ,forest1 as they were   
confirmed by ,henry ,,iii41 in #abag1   
says3     ,thus these famous charters   
were brought nearly to the shape in     
which    they have ever since stood2 and
 they were1 during many generations1    
the peculiar favorites of the ,english  
nation1 and esteemed the most    sacred 
rampart to national liberty and         
independence4 ,as they secured    the   
rights of all orders of men1 they were  

anxiously defended by all1    and became
 the basis1 in a manner1 of the ,english
 monarchy1 and a    kind of original    
contract1 which both limited the        
authority of the    king and ensured the
 conditional allegiance of his subjects4
 ,though    often violated1 they were   
still claimed by the nobility and       
people2    and1 as no precedents were   
supposed valid that infringed them1 they
    rather acquired than lost authority1
 from the frequent attempts made        
against them in several ages1 by regal  
and arbitrary power4--,hume1    ch4 #ab4
     ,mackintosh says1 ,it was          
understood by the simplest of the       
unlettered    age for whom it was       
intended4 ,it was remembered by them4444
 ,for    almost five centuries it was   
appealed to as the decisive authority on
    behalf of the people4444 ,to have   
produced it1 to have preserved it1    to
 have matured it1 constitute the        
immortal claim of ,england on the       
esteem of mankind4 ,her ,bacons and     

,shakspeares1 her ,miltons and          
,newtons1 with all the truth which they 
have revealed1 and all the    generous  
virtues which they have inspired1 are of
 inferior value when    compared with   
the subjection of men and their rulers  
to the    principles of justice2 if1    
indeed1 it be not more true that these  
mighty spirits could not have been      
formed except under equal laws1    nor  
roused to full activity without the     
influence of that spirit    which the   
,great ,charter breathed over their     
forefathers4--,mackintosh's ,hist4 of   
,eng41 ch4 #c4aaj  ,of the ,great       
,charter1 the trial by jury is the vital
 part1 and the only part that places the
 liberties of the people in their own   
keeping4 ,of this ,blackstone says3     
,the trial by jury1 or the country1 per 
patriam1 is also that trial    by the   
peers of every ,englishman1 which1 as   
the grand bulwark of his    liberties1  
is secured to him by the ,great         
,charter2 nullus liber homo    capiatur1

 vel imprisonetur1 aut exuletur1 aut    
aliquo modo destruatur1    nisi per     
legale judicium parium suorum1 vel per  
legem terrae4444     ,the liberties of  
,england cannot but subsist so long as  
this palladium    remains sacred and    
inviolate1 not only from all open       
attacks1 which    none will be so hardy 
as to make1 but also from all secret    
machinations which may sap and undermine
 it4#aaa     ,the trial by jury ever has
 been1 and ,i trust ever will be1 looked
    upon as the glory of the ,english   
law4444 ,it is the most transcendent    
privilege which any subject can enjoy or
 wish for1 that he cannot be    affected
 in his property1 his liberty1 or his   
person1 but by the    unanimous consent 
of twelve of his neighbors and          
equals4#aab     ,hume calls the trial by
 jury ,an institution admirable in      
itself1 and    the best calculated for  
the preservation of liberty and the     
administration of justice1 that ever was
 devised by the wit of    man4#aac  ,an 

old book1 called ,english ,liberties1   
says3     ,english ,parliaments have all
 along been most zealous for preserving 
this great ,jewel of ,liberty1 trials by
 juries having no less than             
fifty-eight several times1 since the    
,norman ,conquest1 been    established  
and confirmed by the legislative power1 
no one privilege    besides having been 
ever so often remembered in             
parliament4#aad  ,footnote #ajf3        
,mackintosh's ,hist4 of ,eng41 ch4 #c4  
#de ,lardner's ,cab4 ,cyc41 #ced4       
,footnote #ajg3 ,forty shilling         
freeholders were those people dwelling  
and resident in the same counties1      
whereof every one of them shall have    
free land or tenement to the value of   
forty shillings by the year at the least
 above all charges4 ,by statute #h      
,henry #f1 ch4 #g1 7#adbi17 these       
freeholders only were allowed to vote   
for members of ,parliament from the     
counties4  ,footnote #ajh3 ,he probably 
speaks in its favor only to blind the   

eyes of the people to the frauds he has 
attempted upon its true meaning4        
,footnote #aji3 ,it will be noticed that
 ,coke calls these confirmations of the 
charter acts of parliament1 instead of  
acts of the king alone4 ,this needs     
explanation4  ,it was one of ,coke's    
ridiculous pretences1 that laws         
anciently enacted by the king1 at the   
request1 or with the consent1 or by the 
advice1 of his parliament1 was an act of
 parliament1 instead of the act of the  
king4 ,and in the extracts cited1 he    
carries this idea so far as to pretend  
that the various confirmations of the   
,great ,charter were acts of parliament1
 instead of the acts of the kings4 ,he  
might as well have pretended that the   
original grant of the ,charter was an   
act of parliament2 because it was not   
only granted at the request1 and with   
the consent1 and by the advice1 but on  
the compulsion even1 of those who       
commonly constituted his parliaments4   
,yet this did not make the grant of the 

charter an act of parliament4 ,it was   
simply an act of the king4  ,the object 
of ,coke1 in this pretence1 was to      
furnish some color for the palpable     
falsehood that the legislative          
authority1 which parliament was trying  
to assume in his own day1 and which it  
finally succeeded in obtaining1 had a   
precedent in the ancient constitution of
 the kingdom4  ,there would be as much  
reason in saying that1 because the      
ancient kings were in the habit of      
passing laws in special answer to the   
petitions of their subjects1 therefore  
those petitioners were a part of the    
legislative power of the kingdom4  ,one 
great objection to this argument of     
,coke1 for the legislative authority of 
the ancient parliaments1 is that a very 
large--probably much the larger--number 
of legislative acts were done without   
the advice1 consent1 request1 or even   
presence1 of a parliament4 ,not only    
were many formal statutes passed without
 any mention of the consent or advice of

 parliament1 but a simple order of the  
king in council1 or a simple            
proclamation1 writ1 or letter under     
seal1 issued by his command1 had the    
same force as what ,coke calls an act of
 parliament4 ,and this practice         
continued1 to a considerable extent at  
least1 down to ,coke's own time4  ,the  
kings were always in the habit of       
consulting their parliaments1 more or   
less1 in regard to matters of           
legislation1--not because their consent 
was constitutionally necessary1 but in  
order to make influence in favor of     
their laws1 and thus induce the people  
to observe them1 and the juries to      
enforce them4  ,the general duties of   
the ancient parliaments were not        
legislative1 but judicial1 as will be   
shown more fully hereafter4 ,the people 
were not represented in the parliaments 
at the time of ,magna ,carta1 but only  
the archbishops1 bishops1 earls1 barons1
 and knights2 so that little or nothing 
would have been gained for liberty by   

,coke's idea that parliament had a      
legislative power4 ,he would only have  
substituted an aristocracy for a king4  
,even after the ,commons were           
represented in parliament1 they for some
 centuries appeared only as petitioners1
 except in the matter of taxation1 when 
their consent was asked4 ,and almost the
 only source of their influence on      
legislation was this3 that they would   
sometimes refuse their consent to the   
taxation1 unless the king would pass    
such laws as they petitioned for2 or1 as
 would seem to have been much more      
frequently the case1 unless he would    
abolish such laws and practices as they 
remonstrated against4  ,the influence or
 power of parliament1 and especially of 
the ,commons1 in the general legislation
 of the country1 was a thing of slow    
growth1 having its origin in a device of
 the king to get money contrary to law1 
7as will be seen in the next volume17   
and not at all a part of the            
constitution of the kingdom1 nor having 

its foundation in the consent of the    
people4 ,the power1 as at present       
exercised1 was not fully established    
until #afhh1 7near five hundred years   
after ,magna ,carta17 when the ,house of
 ,commons 7falsely so called7 had       
acquired such influence as the          
representative1 not of the people1 but  
of the wealth1 of the nation1 that they 
compelled the king to discard the oath  
fixed by the constitution of the        
kingdom2 7which oath has been already   
given in a former chapter17page #aja7   
and was1 in substance1 to preserve and  
execute the ,common ,law1 the ,law of   
the ,land1--or1 in the words of the     
oath1 the just laws and customs which   
the common people had chosen27 and to   
swear that he would govern the people of
 this kingdom of ,england1 and the      
dominions thereto belonging1 according  
to the statutes in parliament agreed on1
 and the laws and customs of the        
same4#aae  ,the passage and enforcement 
of this statute1 and the assumption of  

this oath by the king1 were plain       
violations of the ,english constitution1
 inasmuch as they abolished1 so far as  
such an oath could abolish1 the         
legislative power of the king1 and also 
those just laws and customs which the   
common people 7through their juries7 had
 chosen1 and substituted the will of    
parliament in their stead4  ,coke was a 
great advocate for the legislative power
 of parliament1 as a means of           
restraining the power of the king4 ,as  
he denied all power to juries to decide 
upon the obligation of laws1 and as he  
held that the legislative power was so  
transcendent and absolute as 7that7 it  
cannot be confined1 either for causes or
 persons1 within any bounds1#aaf he was 
perhaps honest in holding that it was   
safer to trust this terrific power in   
the hands of parliament1 than in the    
hands of the king4 ,his error consisted 
in holding that either the king or      
parliament had any such power1 or that  
they had any power at all to pass laws  

that should be binding upon a jury4     
,these declarations of ,coke1 that the  
charter was confirmed by thirty-two acts
 of parliament1 have a mischievous      
bearing in another respect4 ,they tend  
to weaken the authority of the charter1 
by conveying the impression that the    
charter itself might be abolished by act
 of parliament4 ,coke himself admits    
that it could not be revoked or         
rescinded by the king2 for he says1 ,all
 pretence of prerogative against ,magna 
,carta is taken away4 7#b ,inst41 #cf47 
,he knew perfectly well1 and the whole  
,english nation knew1 that the king     
could not lawfully infringe ,magna      
,carta4 ,magna ,carta1 therefore1 made  
it impossible that absolute power could 
ever be practically established in      
,england1 in the hands of the king4     
,hence1 as ,coke was an advocate for    
absolute power1--that is1 for a         
legislative power so transcendent and   
absolute as 7that7 it cannot be         
confined1 either for causes or persons1 

within any bounds1--there was no        
alternative for him but to vest this    
absolute power in parliament4 ,had he   
not vested it in parliament1 he would   
have been obliged to abjure it          
altogether1 and to confess that the     
people1 through their juries1 had the   
right to judge of the obligation of all 
legislation whatsoever2 in other words1 
that they had the right to confine the  
government within the limits of those   
just laws and customs which the common  
people 7acting as jurors7 had chosen4   
,true to his instincts1 as a judge1 and 
as a tyrant1 he assumed that this       
absolute power was vested in the hands  
of parliament4  ,but the truth was that1
 as by the ,english constitution        
parliament had no authority at all for  
general legislation1 it could no more   
confirm1 than it could abolish1 ,magna  
,carta4  ,these thirty-two confirmations
 of ,magna ,carta1 which ,coke speaks of
 as acts of parliament1 were merely acts
 of the king4 ,the parliaments1 indeed1 

by refusing to grant him money1 except  
on that condition1 and otherwise1 had   
contributed to oblige him to make the   
confirmations2 just as they had helped  
to oblige him by arms to grant the      
charter in the first place4 ,but the    
confirmations themselves were           
nevertheless constitutionally1 as well  
as formally1 the acts of the king alone4
  ,footnote #aaj3 ,under the head of    
,john4  ,footnote #aaa3 #d ,blackstone1 
#cdi-ej4  ,footnote #aab3 #c            
,blackstone1 #cgi4  ,footnote #aac3     
,hume1 ch4 #b4  ,footnote #aad3 ,page   
#bjc1 #eth edition1 #agba4  ,footnote   
#aae3 ,st4 #a ,william and ,mary1 ch4   
#f1 7#afhh47  ,footnote #aaf3 #d ,inst41
 #cf4     ,,chapter ,,xii4              
,,limitations ,,imposed ,,upon ,,the    
,,majority ,,by ,,the ,,trial ,,by      
,,jury4   ,the principal objection1 that
 will be made to the doctrine of this   
essay1 is1 that under it1 a jury would  
paralyze the power of the majority1 and 
veto all legislation that was not in    

accordance with the will of the whole1  
or nearly the whole1 people4  ,the      
answer to this objection is1 that the   
limitation1 which would be thus imposed 
upon the legislative power1 7whether    
that power be vested in the majority1 or
 minority1 of the people17 is the       
crowning merit of the trial by jury4 ,it
 has other merits2 but1 though important
 in themselves1 they are utterly        
insignificant and worthless in          
comparison with this4  ,it is this power
 of vetoing all partial and oppressive  
legislation1 and of restricting the     
government to the maintenance of such   
laws as the whole1 or substantially the 
whole1 people are agreed in1 that makes 
the trial by jury the palladium of      
liberty4 ,without this power it would   
never have deserved that name4  ,the    
will1 or the pretended will1 of the     
majority1 is the last lurking place of  
tyranny at the present day4 ,the dogma1 
that certain individuals and families   
have a divine appointment to govern the 

rest of mankind1 is fast giving place to
 the one that the larger number have a  
right to govern the smaller2 a dogma1   
which may1 or may not1 be less          
oppressive in its practical operation1  
but which certainly is no less false or 
tyrannical in principle1 than the one it
 is so rapidly supplanting4 ,obviously  
there is nothing in the nature of       
majorities1 that insures justice at     
their hands4 ,they have the same        
passions as minorities1 and they have no
 qualities whatever that should be      
expected to prevent them from practising
 the same tyranny as minorities1 if they
 think it will be for their interest to 
do so4  ,there is no particle of truth  
in the notion that the majority have a  
right to rule1 or to exercise arbitrary 
power over1 the minority1 simply because
 the former are more numerous than the  
latter4 ,two men have no more natural   
right to rule one1 than one has to rule 
two4 ,any single man1 or any body of    
men1 many or few1 have a natural right  

to maintain justice for themselves1 and 
for any others who may need their       
assistance1 against the injustice of any
 and all other men1 without regard to   
their numbers2 and majorities have no   
right to do any more than this4 ,the    
relative numbers of the opposing parties
 have nothing to do with the question of
 right4 ,and no more tyrannical         
principle was ever avowed1 than that the
 will of the majority ought to have the 
force of law1 without regard to its     
justice2 or1 what is the same thing1    
that the will of the majority ought     
always to be presumed to be in          
accordance with justice4 ,such a        
doctrine is only another form of the    
doctrine that might makes right4  ,when 
two men meet one upon the highway1 or in
 the wilderness1 have they a right to   
dispose of his life1 liberty1 or        
property at their pleasure1 simply      
because they are the more numerous      
party8 ,or is he bound to submit to lose
 his life1 liberty1 or property1 if they

 demand it1 merely because he is the    
less numerous party8 ,or1 because they  
are more numerous than he1 is he bound  
to presume that they are governed only  
by superior wisdom1 and the principles  
of justice1 and by no selfish passion   
that can lead them to do him a wrong8   
,yet this is the principle1 which it is 
claimed should govern men in all their  
civil relations to each other4 ,mankind 
fall in company with each other on the  
highway or in the wilderness of life1   
and it is claimed that the more numerous
 party1 simply by virtue of their       
superior numbers1 have the right        
arbitrarily to dispose of the life1     
liberty1 and property of the minority2  
and that the minority are bound1 by     
reason of their inferior numbers1 to    
practise abject submission1 and consent 
to hold their natural rights1--any1 all1
 or none1 as the case may be1--at the   
mere will and pleasure of the majority2 
as if all a man's natural rights        
expired1 or were suspended by the       

operation of a paramount law1 the moment
 he came into the presence of superior  
numbers4  ,if such be the true nature of
 the relations men hold to each other in
 this world1 it puts an end to all such 
things as crimes1 unless they be        
perpetrated upon those who are equal or 
superior1 in number1 to the actors4 ,all
 acts committed against persons inferior
 in number to the aggressors1 become but
 the exercise of rightful authority4    
,and consistency with their own         
principles requires that all            
governments1 founded on the will of the 
majority1 should recognize this plea as 
a sufficient justification for all      
crimes whatsoever4  ,if it be said that 
the majority should be allowed to rule1 
not because they are stronger than the  
minority1 but because their superior    
numbers furnish a probability that they 
are in the right2 one answer is1 that   
the lives1 liberties1 and properties of 
men are too valuable to them1 and the   
natural presumptions are too strong in  

their favor1 to justify the destruction 
of them by their fellow-men on a mere   
balancing of probabilities1 or on any   
ground whatever short of certainty      
beyond a reasonable doubt4 ,this last is
 the moral rule universally recognized  
to be binding upon single individuals4  
,and in the forum of conscience the same
 rule is equally binding upon           
governments1 for governments are mere   
associations of individuals4 ,this is   
the rule on which the trial by jury is  
based4 ,and it is plainly the only rule 
that ought to induce a man to submit his
 rights to the adjudication of his      
fellow-men1 or dissuade him from a      
forcible defence of them4  ,another     
answer is1 that if two opposing parties 
could be supposed to have no personal   
interests or passions involved1 to warp 
their judgments1 or corrupt their       
motives1 the fact that one of the       
parties was more numerous than the      
other1 7a fact that leaves the          
comparative intellectual competency of  

the two parties entirely out of         
consideration17 might1 perhaps1 furnish 
a slight1 but at best only a very       
slight1 probability that such party was 
on the side of justice4 ,but when it is 
considered that the parties are liable  
to differ in their intellectual         
capacities1 and that one1 or the other1 
or both1 are undoubtedly under the      
influence of such passions as rivalry1  
hatred1 avarice1 and ambition1--passions
 that are nearly certain to pervert     
their judgments1 and very likely to     
corrupt their motives1--all             
probabilities founded upon a mere       
numerical majority1 in one party1 or the
 other1 vanish at once2 and the decision
 of the majority becomes1 to all        
practical purposes1 a mere decision of  
chance4 ,and to dispose of men's        
properties1 liberties1 and lives1 by the
 mere process of enumerating such       
parties1 is not only as palpable        
gambling as was ever practised1 but it  
is also the most atrocious that was ever

 practised1 except in matters of        
government4 ,and where government is    
instituted on this principle1 7as in the
 ,united ,states1 for example17 the     
nation is at once converted into one    
great gambling establishment2 where all 
the rights of men are the stakes2 a few 
bold bad men throw the dice--7dice      
loaded with all the hopes1 fears1       
interests1 and passions which rage in   
the breasts of ambitious and desperate  
men17--and all the people1 from the     
interests they have depending1 become   
enlisted1 excited1 agitated1 and        
generally corrupted1 by the hazards of  
the game4  ,the trial by jury disavows  
the majority principle altogether2 and  
proceeds upon the ground that every man 
should be presumed to be entitled to    
life1 liberty1 and such property as he  
has in his possession2 and that the     
government should lay its hand upon none
 of them1 7except for the purpose of    
bringing them before a tribunal for     
adjudication17 unless it be first       

ascertained1 beyond a reasonable doubt1 
in every individual case1 that justice  
requires it4  ,to ascertain whether     
there be such reasonable doubt1 it takes
 twelve men by lot from the whole body  
of mature men4 ,if any of these twelve  
are proved to be under the influence of 
any special interest or passion1 that   
may either pervert their judgments1 or  
corrupt their motives1 they are set     
aside as unsuitable for the performance 
of a duty requiring such absolute       
impartiality and integrity2 and others  
substituted in their stead4 ,when the   
utmost practicable impartiality is      
attained on the part of the whole       
twelve1 they are sworn to the observance
 of justice2 and their unanimous        
concurrence is then held to be necessary
 to remove that reasonable doubt1 which1
 unremoved1 would forbid the government 
to lay its hand on its victim4  ,such is
 the caution which the trial by jury    
both practises and inculcates1 against  
the violation of justice1 on the part of

 the government1 towards the humblest   
individual1 in the smallest matter      
affecting his civil rights1 his         
property1 liberty1 or life4 ,and such is
 the contrast1 which the trial by jury  
presents1 to that gambler's and robber's
 rule1 that the majority have a right1  
by virtue of their superior numbers1 and
 without regard to justice1 to dispose  
at pleasure of the property and persons 
of all bodies of men less numerous than 
themselves4  ,the difference1 in short1 
between the two systems1 is this4 ,the  
trial by jury protects person and       
property1 inviolate to their possessors1
 from the hand of the law1 unless       
justice1 beyond a reasonable doubt1     
require them to be taken4 ,the majority 
principle takes person and property from
 their possessors1 at the mere arbitrary
 will of a majority1 who are liable and 
likely to be influenced1 in taking them1
 by motives of oppression1 avarice1 and 
ambition4  ,if the relative numbers of  
opposing parties afforded sufficient    

evidence of the comparative justice of  
their claims1 the government should     
carry the principle into its courts of  
justice2 and instead of referring       
controversies to impartial and          
disinterested men1--to judges and       
jurors1 sworn to do justice1 and bound  
patiently to hear and weigh all the     
evidence and arguments that can be      
offered on either side1--it should      
simply count the plaintiffs and         
defendants in each case1 7where there   
were more than one of either17 and then 
give the case to the majority2 after    
ample opportunity had been given to the 
plaintiffs and defendants to reason     
with1 flatter1 cheat1 threaten1 and     
bribe each other1 by way of inducing    
them to change sides4 ,such a process   
would be just as rational in courts of  
justice1 as in halls of legislation2 for
 it is of no importance to a man1 who   
has his rights taken from him1 whether  
it be done by a legislative enactment1  
or a judicial decision4  ,in            

legislation1 the people are all arranged
 as plaintiffs and defendants in their  
own causes2 7those who are in favor of a
 particular law1 standing as plaintiffs1
 and those who are opposed to the same  
law1 standing as defendants72 and to    
allow these causes to be decided by     
majorities1 is plainly as absurd as it  
would be to allow judicial decisions to 
be determined by the relative number of 
plaintiffs and defendants4  ,if this    
mode of decision were introduced into   
courts of justice1 we should see a      
parallel1 and only a parallel1 to that  
system of legislation which we witness  
daily4 ,we should see large bodies of   
men conspiring to bring perfectly       
groundless suits1 against other bodies  
of men1 for large sums of money1 and to 
carry them by sheer force of numbers2   
just as we now continually see large    
bodies of men conspiring to carry1 by   
mere force of numbers1 some scheme of   
legislation that will1 directly or      
indirectly1 take money out of other     

men's pockets1 and put it into their    
own4 ,and we should also see distinct   
bodies of men1 parties in separate      
suits1 combining and agreeing all to    
appear and be counted as plaintiffs or  
defendants in each other's suits1 for   
the purpose of ekeing out the necessary 
majority2 just as we now see distinct   
bodies of men1 interested in separate   
schemes of ambition or plunder1         
conspiring to carry through a batch of  
legislative enactments1 that shall      
accomplish their several purposes4      
,this system of combination and         
conspiracy would go on1 until at length 
whole states and a whole nation would   
become divided into two great litigating
 parties1 each party composed of several
 smaller bodies1 having their separate  
suits1 but all confederating for the    
purpose of making up the necessary      
majority in each case4 ,the individuals 
composing each of these two great       
parties1 would at length become so      
accustomed to acting together1 and so   

well acquainted with each others'       
schemes1 and so mutually dependent upon 
each others' fidelity for success1 that 
they would become organized as permanent
 associations2 bound together by that   
kind of honor that prevails among       
thieves2 and pledged by all their       
interests1 sympathies1 and animosities1 
to mutual fidelity1 and to unceasing    
hostility to their opponents2 and       
exerting all their arts and all their   
resources of threats1 injuries1         
promises1 and bribes1 to drive or seduce
 from the other party enough to enable  
their own to retain or acquire such a   
majority as would be necessary to gain  
their own suits1 and defeat the suits of
 their opponents4 ,all the wealth and   
talent of the country would become      
enlisted in the service of these rival  
associations2 and both would at length  
become so compact1 so well organized1 so
 powerful1 and yet always so much in    
need of recruits1 that a private person 
would be nearly or quite unable to      

obtain justice in the most paltry suit  
with his neighbor1 except on the        
condition of joining one of these great 
litigating associations1 who would agree
 to carry through his cause1 on         
condition of his assisting them to carry
 through all the others1 good and bad1  
which they had already undertaken4 ,if  
he refused this1 they would threaten to 
make a similar offer to his antagonist1 
and suffer their whole numbers to be    
counted against him4  ,now this picture 
is no caricature1 but a true and honest 
likeness4 ,and such a system of         
administering justice1 would be no more 
false1 absurd1 or atrocious1 than that  
system of working by majorities1 which  
seeks to accomplish1 by legislation1 the
 same ends which1 in the case supposed1 
would be accomplished by judicial       
decisions4  ,again1 the doctrine that   
the minority ought to submit to the will
 of the majority1 proceeds1 not upon the
 principle that government is formed by 
voluntary association1 and for an agreed

 purpose1 on the part of all who        
contribute to its support1 but upon the 
presumption that all government must be 
practically a state of war and plunder  
between opposing parties2 and that1 in  
order to save blood1 and prevent mutual 
extermination1 the parties come to an   
agreement that they will count their    
respective numbers periodically1 and the
 one party shall then be permitted      
quietly to rule and plunder1 7restrained
 only by their own discretion17 and the 
other submit quietly to be ruled and    
plundered1 until the time of the next   
enumeration4  ,such an agreement may    
possibly be wiser than unceasing and    
deadly conflict2 it nevertheless        
partakes too much of the ludicrous to   
deserve to be seriously considered as an
 expedient for the maintenance of civil 
society4 ,it would certainly seem that  
mankind might agree upon a cessation of 
hostilities1 upon more rational and     
equitable terms than that of            
unconditional submission on the part of 

the less numerous body4 ,unconditional  
submission is usually the last act of   
one who confesses himself subdued and   
enslaved4 ,how any one ever came to     
imagine that condition to be one of     
freedom1 has never been explained4 ,and 
as for the system being adapted to the  
maintenance of justice among men1 it is 
a mystery that any human mind could ever
 have been visited with an insanity wild
 enough to originate the idea4  ,if it  
be said that other corporations1 than   
governments1 surrender their affairs    
into the hands of the majority1 the     
answer is1 that they allow majorities to
 determine only trifling matters1 that  
are in their nature mere questions of   
discretion1 and where there is no       
natural presumption of justice or right 
on one side rather than the other4 ,they
 never surrender to the majority the    
power to dispose of1 or1 what is        
practically the same thing1 to          
determine1 the rights of any individual 
member4 ,the rights of every member are 

determined by the written compact1 to   
which all the members have voluntarily  
agreed4  ,for example4 ,a banking       
corporation allows a majority to        
determine such questions of discretion  
as whether the note of ,a or of ,b shall
 be discounted2 whether notes shall be  
discounted on one1 two1 or six days in  
the week2 how many hours in a day their 
banking-house shall be kept open2 how   
many clerks shall be employed2 what     
salaries they shall receive1 and such   
like matters1 which are in their nature 
mere subjects of discretion1 and where  
there are no natural presumptions of    
justice or right in favor of one course 
over the other4 ,but no banking         
corporation allows a majority1 or any   
other number of its members less than   
the whole1 to divert the funds of the   
corporation to any other purpose than   
the one to which every member of the    
corporation has legally agreed that they
 may be devoted2 nor to take the stock  
of one member and give it to another2   

nor to distribute the dividends among   
the stockholders otherwise than to each 
one the proportion which he has agreed  
to accept1 and all the others have      
agreed that he shall receive4 ,nor does 
any banking corporation allow a majority
 to impose taxes upon the members for   
the payment of the corporate expenses1  
except in such proportions as every     
member has consented that they may be   
imposed4 ,all these questions1 involving
 the rights of the members as against   
each other1 are fixed by the articles of
 the association1--that is1 by the      
agreement to which every member has     
personally assented4  ,what is also     
specially to be noticed1 and what       
constitutes a vital difference between  
the banking corporation and the         
political corporation1 or government1   
is1 that in case of controversy among   
the members of the banking corporation1 
as to the rights of any member1 the     
question is determined1 not by any      
number1 either majority1 or minority1 of

 the corporation itself1 but by persons 
out of the corporation2 by twelve men   
acting as jurors1 or by other tribunals 
of justice1 of which no member of the   
corporation is allowed to be a part4    
,but in the case of the political       
corporation1 controversies among the    
parties to it1 as to the rights of      
individual members1 must of necessity be
 settled by members of the corporation  
itself1 because there are no persons out
 of the corporation to whom the question
 can be referred4  ,since1 then1 all    
questions as to the rights of the       
members of the political corporation1   
must be determined by members of the    
corporation itself1 the trial by jury   
says that no man's rights1--neither his 
right to his life1 his liberty1 nor his 
property1--shall be determined by any   
such standard as the mere will and      
pleasure of majorities2 but only by the 
unanimous verdict of a tribunal fairly  
representing the whole people1--that is1
 a tribunal of twelve men1 taken1 at    

random from the whole body1 and         
ascertained to be as impartial as the   
nature of the case will admit1 and sworn
 to the observance of justice4 ,such is 
the difference in the two kinds of      
corporations2 and the custom of managing
 by majorities the mere discretionary   
matters of business corporations1 7the  
majority having no power to determine   
the rights of any member17 furnishes no 
analogy to the practice1 adopted by     
political corporations1 of disposing of 
all the rights of their members by the  
arbitrary will of majorities4  ,but     
further4 ,the doctrine that the majority
 have a right to rule1 proceeds upon the
 principle that minorities have no      
rights in the government2 for certainly 
the minority cannot be said to have any 
rights in a government1 so long as the  
majority alone determine what their     
rights shall be4 ,they hold everything1 
or nothing1 as the case may be1 at the  
mere will of the majority4  ,it is      
indispensable to a free government1 7in 

the political sense of that term17 that 
the minority1 the weaker party1 have a  
veto upon the acts of the majority4     
,political liberty is liberty for the   
weaker party in a nation4 ,it is only   
the weaker party that lose their        
liberties1 when a government becomes    
oppressive4 ,the stronger party1 in all 
governments1 are free by virtue of their
 superior strength4 ,they never oppress 
themselves4  ,legislation is the work of
 this stronger party2 and if1 in        
addition to the sole power of           
legislating1 they have the sole power of
 determining what legislation shall be  
enforced1 they have all power in their  
hands1 and the weaker party are the     
subjects of an absolute government4     
,unless the weaker party have a veto1   
either upon the making1 or the          
enforcement of laws1 they have no power 
whatever in the government1 and can of  
course have no liberties except such as 
the stronger party1 in their arbitrary  
discretion1 see fit to permit them to   

enjoy4  ,in ,england and the ,united    
,states1 the trial by jury is the only  
institution that gives the weaker party 
any veto upon the power of the stronger4
 ,consequently it is the only           
institution1 that gives them any        
effective voice in the government1 or   
any guaranty against oppression4        
,suffrage1 however free1 is of no avail 
for this purpose2 because the suffrage  
of the minority is overborne by the     
suffrage of the majority1 and is thus   
rendered powerless for purposes of      
legislation4 ,the responsibility of     
officers can be made of no avail1       
because they are responsible only to the
 majority4 ,the minority1 therefore1 are
 wholly without rights in the           
government1 wholly at the mercy of the  
majority1 unless1 through the trial by  
jury1 they have a veto upon such        
legislation as they think unjust4       
,government is established for the      
protection of the weak against the      
strong4 ,this is the principal1 if not  

the sole1 motive for the establishment  
of all legitimate government4 ,laws1    
that are sufficient for the protection  
of the weaker party1 are of course      
sufficient for the protection of the    
stronger party2 because the strong can  
certainly need no more protection than  
the weak4 ,it is1 therefore1 right that 
the weaker party should be represented  
in the tribunal which is finally to     
determine what legislation may be       
enforced2 and that no legislation shall 
be enforced against their consent4 ,they
 being presumed to be competent judges  
of what kind of legislation makes for   
their safety1 and what for their injury1
 it must be presumed that any           
legislation1 which they object to       
enforcing1 tends to their oppression1   
and not to their security4  ,there is   
still another reason why the weaker     
party1 or the minority1 should have a   
veto upon all legislation which they    
disapprove4 ,that reason is1 that that  
is the only means by which the          

government can be kept within the limits
 of the contract1 compact1 or           
constitution1 by which the whole people 
agree to establish government4 ,if the  
majority were allowed to interpret the  
compact for themselves1 and enforce it  
according to their own interpretation1  
they would1 of course1 make it authorize
 them to do whatever they wish to do4   
,the theory of free government is that  
it is formed by the voluntary contract  
of the people individually with each    
other4 ,this is the theory1 7although it
 is not1 as it ought to be1 the fact17  
in all the governments in the ,united   
,states1 as also in the government of   
,england4 ,the theory assumes that each 
man1 who is a party to the government1  
and contributes to its support1 has     
individually and freely consented to it4
 ,otherwise the government would have no
 right to tax him for its support1--for 
taxation without consent is robbery4    
,this theory1 then1 necessarily supposes
 that this government1 which is formed  

by the free consent of all1 has no      
powers except such as all the parties to
 it have individually agreed that it    
shall have2 and especially that it has  
no power to pass any laws1 except such  
as all the parties have agreed that it  
may pass4  ,this theory supposes that   
there may be certain laws that will be  
beneficial to all1--so beneficial that  
all consent to be taxed for their       
maintenance4 ,for the maintenance of    
these specific laws1 in which all are   
interested1 all associate4 ,and they    
associate for the maintenance of those  
laws only1 in which all are interested4 
,it would be absurd to suppose that all 
would associate1 and consent to be      
taxed1 for purposes which were          
beneficial only to a part2 and          
especially for purposes that were       
injurious to any4 ,a government of the  
whole1 therefore1 can have no powers    
except such as all the parties consent  
that it may have4 ,it can do nothing    
except what all have consented that it  

may do4 ,and if any portion of the      
people1--no matter how large their      
number1 if it be less than the          
whole1--desire a government for any     
purposes other than those that are      
common to all1 and desired by all1 they 
must form a separate association for    
those purposes4 ,they have no right1--by
 perverting this government of the      
whole1 to the accomplishment of purposes
 desired only by a part1--to compel any 
one to contribute to purposes that are  
either useless or injurious to himself4 
,such being the principles on which the 
government is formed1 the question      
arises1 how shall this government1 when 
formed1 be kept within the limits of the
 contract by which it was established8  
,how shall this government1 instituted  
by the whole people1 agreed to by the   
whole people1 supported by the          
contributions of the whole people1 be   
confined to the accomplishment of those 
purposes alone1 which the whole people  
desire8 ,how shall it be preserved from 

degenerating into a mere government for 
the benefit of a part only of those who 
established1 and who support it8 ,how   
shall it be prevented from even injuring
 a part of its own members1 for the     
aggrandizement of the rest8 ,its laws   
must be1 7or at least now are17 passed1 
and most of its other acts performed1 by
 mere agents1--agents chosen by a part  
of the people1 and not by the whole4    
,how can these agents be restrained from
 seeking their own interests1 and the   
interests of those who elected them1 at 
the expense of the rights of the        
remainder of the people1 by the passage 
and enforcement of laws that shall be   
partial1 unequal1 and unjust in their   
operation8 ,that is the great question4 
,and the trial by jury answers it4 ,and 
how does the trial by jury answer it8   
,it answers it1 as has already been     
shown throughout this volume1 by saying 
that these mere agents and attorneys1   
who are chosen by a part only of the    
people1 and are liable to be influenced 

by partial and unequal purposes1 shall  
not have unlimited authority in the     
enactment and enforcement of laws2 that 
they shall not exercise all the         
functions of government4 ,it says that  
they shall never exercise that ultimate 
power of compelling obedience to the    
laws by punishing for disobedience1 or  
of executing the laws against the person
 or property of any man1 without first  
getting the consent of the people1      
through a tribunal that may fairly be   
presumed to represent the whole1 or     
substantially the whole1 people4 ,it    
says that if the power to make laws1 and
 the power also to enforce them1 were   
committed to these agents1 they would   
have all power1--would be absolute      
masters of the people1 and could deprive
 them of their rights at pleasure4 ,it  
says1 therefore1 that the people        
themselves will hold a veto upon the    
enforcement of any and every law1 which 
these agents may enact1 and that        
whenever the occasion arises for them to

 give or withhold their                 
consent1--inasmuch as the whole people  
cannot assemble1 or devote the time and 
attention necessary to the investigation
 of each case1--twelve of their number  
shall be taken by lot1 or otherwise at  
random1 from the whole body2 that they  
shall not be chosen by majorities1 7the 
same majorities that elected the agents 
who enacted the laws to be put in       
issue17 nor by any interested or        
suspected party2 that they shall not be 
appointed by1 or be in any way dependent
 upon1 those who enacted the law2 that  
their opinions1 whether for or against  
the law that is in issue1 shall not be  
inquired of beforehand2 and that if     
these twelve men give their consent to  
the enforcement of the law1 their       
consent shall stand for the consent of  
the whole4  ,this is the mode1 which the
 trial by jury provides1 for keeping the
 government within the limits designed  
by the whole people1 who have associated
 for its establishment4 ,and it is the  

only mode1 provided either by the       
,english or ,american constitutions1 for
 the accomplishment of that object4     
,but it will1 perhaps1 be said that if  
the minority can defeat the will of the 
majority1 then the minority rule the    
majority4 ,but this is not true in any  
unjust sense4 ,the minority enact no    
laws of their own4 ,they simply refuse  
their assent to such laws of the        
majority as they do not approve4 ,the   
minority assume no authority over the   
majority2 they simply defend themselves4
 ,they do not interfere with the right  
of the majority to seek their own       
happiness in their own way1 so long as  
they 7the majority7 do not interfere    
with the minority4 ,they claim simply   
not to be oppressed1 and not to be      
compelled to assist in doing anything   
which they do not approve4 ,they say to 
the majority1 ,we will unite with you1  
if you desire it1 for the accomplishment
 of all those purposes1 in which we have
 a common interest with you4 ,you can   

certainly expect us to do nothing more4 
,if you do not choose to associate with 
us on those terms1 there must be two    
separate associations4 ,you must        
associate for the accomplishment of your
 purposes2 we for the accomplishment of 
ours4  ,in this case1 the minority      
assume no authority over the majority2  
they simply refuse to surrender their   
own liberties into the hands of the     
majority4 ,they propose a union2 but    
decline submission4 ,the majority are   
still at liberty to refuse the          
connection1 and to seek their own       
happiness in their own way1 except that 
they cannot be gratified in their desire
 to become absolute masters of the      
minority4  ,but1 it may be asked1 how   
can the minority be trusted to enforce  
even such legislation as is equal and   
just8 ,the answer is1 that they are as  
reliable for that purpose as are the    
majority2 they are as much presumed to  
have associated1 and are as likely to   
have associated1 for that object1 as are

 the majority2 and they have as much    
interest in such legislation as have the
 majority4 ,they have even more interest
 in it2 for1 being the weaker party1    
they must rely on it for their          
security1--having no other security on  
which they can rely4 ,hence their       
consent to the establishment of         
government1 and to the taxation required
 for its support1 is presumed1 7although
 it ought not to be presumed17 without  
any express consent being given4 ,this  
presumption of their consent to be taxed
 for the maintenance of laws1 would be  
absurd1 if they could not themselves be 
trusted to act in good faith in         
enforcing those laws4 ,and hence they   
cannot be presumed to have consented to 
be taxed for the maintenance of any     
laws1 except such as they are themselves
 ready to aid in enforcing4 ,it is      
therefore unjust to tax them1 unless    
they are eligible to seats in a jury1   
with power to judge of the justice of   
the laws4 ,taxing them for the support  

of the laws1 on the assumption that they
 are in favor of the laws1 and at the   
same time refusing them the right1 as   
jurors1 to judge of the justice of the  
laws1 on the assumption that they are   
opposed to the laws1 are flat           
contradictions4  ,but1 it will be asked1
 what motive have the majority1 when    
they have all power in their own hands1 
to submit their will to the veto of the 
minority8  ,one answer is1 that they    
have the motive of justice4 ,it would be
 unjust to compel the minority to       
contribute1 by taxation1 to the support 
of any laws which they did not approve4 
,another answer is1 that if the stronger
 party wish to use their power only for 
purposes of justice1 they have no       
occasion to fear the veto of the weaker 
party2 for the latter have as strong    
motives for the maintenance of just     
government1 as have the former4         
,another answer is1 that if the stronger
 party use their power unjustly1 they   
will hold it by an uncertain tenure1    

especially in a community where         
knowledge is diffused2 for knowledge    
will enable the weaker party to make    
itself in time the stronger party4 ,it  
also enables the weaker party1 even     
while it remains the weaker party1      
perpetually to annoy1 alarm1 and injure 
their oppressors4 ,unjust power1--or    
rather power that is grossly unjust1 and
 that is known to be so by the          
minority1--can be sustained only at the 
expense of standing armies1 and all the 
other machinery of force2 for the       
oppressed party are always ready to risk
 their lives for purposes of vengeance1 
and the acquisition of their rights1    
whenever there is any tolerable chance  
of success4 ,peace1 safety1 and quiet   
for all1 can be enjoyed only under laws 
that obtain the consent of all4 ,hence  
tyrants frequently yield to the demands 
of justice from those weaker than       
themselves1 as a means of buying peace  
and safety4  ,still another answer is1  
that those who are in the majority on   

one law1 will be in the minority on     
another4 ,all1 therefore1 need the      
benefit of the veto1 at some time or    
other1 to protect themselves from       
injustice4  ,that the limits1 within    
which legislation would1 by this        
process1 be confined1 would be          
exceedingly narrow1 in comparison with  
those it at present occupies1 there can 
be no doubt4 ,all monopolies1 all       
special privileges1 all sumptuary laws1 
all restraints upon any traffic1        
bargain1 or contract1 that was naturally
 lawful1#aag all restraints upon men's  
natural rights1 the whole catalogue of  
mala prohibita1 and all taxation to     
which the taxed parties had not         
individually1 severally1 and freely     
consented1 would be at an end2 because  
all such legislation implies a violation
 of the rights of a greater or less     
minority4 ,this minority would          
disregard1 trample upon1 or resist1 the 
execution of such legislation1 and then 
throw themselves upon a jury of the     

whole people for justification and      
protection4 ,in this way all legislation
 would be nullified1 except the         
legislation of that general nature which
 impartially protected the rights1 and  
subserved the interests1 of all4 ,the   
only legislation that could be          
sustained1 would probably be such as    
tended directly to the maintenance of   
justice and liberty2 such1 for example1 
as should contribute to the enforcement 
of contracts1 the protection of         
property1 and the prevention and        
punishment of acts intrinsically        
criminal4 ,in short1 government in      
practice would be brought to the        
necessity of a strict adherence to      
natural law1 and natural justice1       
instead of being1 as it now is1 a great 
battle1 in which avarice and ambition   
are constantly fighting for and         
obtaining advantages over the natural   
rights of mankind4  ,footnote #aag3     
,such as restraints upon banking1 upon  
the rates of interest1 upon traffic with

 foreigners1 c41 c4     ,,appendix4     
,,taxation4   ,it was a principle of the
 ,common ,law1 as it is of the law of   
nature1 and of common sense1 that no man
 can be taxed without his personal      
consent4 ,the ,common ,law knew nothing 
of that system1 which now prevails in   
,england1 of assuming a man's own       
consent to be taxed1 because some       
pretended representative1 whom he never 
authorized to act for him1 has taken it 
upon himself to consent that he may be  
taxed4 ,that is one of the many frauds  
on the ,common ,law1 and the ,english   
constitution1 which have been introduced
 since ,magna ,carta4 ,having finally   
established itself in ,england1 it has  
been stupidly and servilely copied and  
submitted to in the ,united ,states4    
,if the trial by jury were restablished1
 the ,common ,law principle of taxation 
would be restablished with it2 for it is
 not to be supposed that juries would   
enforce a tax upon an individual which  
he had never agreed to pay4 ,taxation   

without consent is as plainly robbery1  
when enforced against one man1 as when  
enforced against millions2 and it is not
 to be imagined that juries could be    
blind to so self-evident a principle4   
,taking a man's money without his       
consent1 is also as much robbery1 when  
it is done by millions of men1 acting in
 concert1 and calling themselves a      
government1 as when it is done by a     
single individual1 acting on his own    
responsibility1 and calling himself a   
highwayman4 ,neither the numbers engaged
 in the act1 nor the different          
characters they assume as a cover for   
the act1 alter the nature of the act    
itself4  ,if the government can take a  
man's money without his consent1 there  
is no limit to the additional tyranny it
 may practise upon him2 for1 with his   
money1 it can hire soldiers to stand    
over him1 keep him in subjection1       
plunder him at discretion1 and kill him 
if he resists4 ,and governments always  
will do this1 as they everywhere and    

always have done it1 except where the   
,common ,law principle has been         
established4 ,it is therefore a first   
principle1 a very sine qua non of       
political freedom1 that a man can be    
taxed only by his personal consent4 ,and
 the establishment of this principle1   
with trial by jury1 insures freedom of  
course2 because3 #a4 ,no man would pay  
his money unless he had first contracted
 for such a government as he was willing
 to support2 and1 #b4 ,unless the       
government then kept itself within the  
terms of its contract1 juries would not 
enforce the payment of the tax4         
,besides1 the agreement to be taxed     
would probably be entered into but for a
 year at a time4 ,if1 in that year1 the 
government proved itself either         
inefficient or tyrannical1 to any       
serious degree1 the contract would not  
be renewed4 ,the dissatisfied parties1  
if sufficiently numerous for a new      
organization1 would form themselves into
 a separate association for mutual      

protection4 ,if not sufficiently        
numerous for that purpose1 those who    
were conscientious would forego all     
governmental protection1 rather than    
contribute to the support of a          
government which they deemed unjust4    
,all legitimate government is a mutual  
insurance company1 voluntarily agreed   
upon by the parties to it1 for the      
protection of their rights against      
wrong-doers4 ,in its voluntary character
 it is precisely similar to an          
association for mutual protection       
against fire or shipwreck4 ,before a man
 will join an association for these     
latter purposes1 and pay the premium for
 being insured1 he will1 if he be a man 
of sense1 look at the articles of the   
association2 see what the company       
promises to do2 what it is likely to do2
 and what are the rates of insurance4   
,if he be satisfied on all these points1
 he will become a member1 pay his       
premium for a year1 and then hold the   
company to its contract4 ,if the conduct

 of the company prove unsatisfactory1 he
 will let his policy expire at the end  
of the year for which he has paid2 will 
decline to pay any further premiums1 and
 either seek insurance elsewhere1 or    
take his own risk without any insurance4
 ,and as men act in the insurance of    
their ships and dwellings1 they would   
act in the insurance of their           
properties1 liberties and lives1 in the 
political association1 or government4   
,the political insurance company1 or    
government1 have no more right1 in      
nature or reason1 to assume a man's     
consent to be protected by them1 and to 
be taxed for that protection1 when he   
has given no actual consent1 than a fire
 or marine insurance company have to    
assume a man's consent to be protected  
by them1 and to pay the premium1 when   
his actual consent has never been given4
 ,to take a man's property without his  
consent is robbery2 and to assume his   
consent1 where no actual consent is     
given1 makes the taking none the less   

robbery4 ,if it did1 the highwayman has 
the same right to assume a man's consent
 to part with his purse1 that any other 
man1 or body of men1 can have4 ,and his 
assumption would afford as much moral   
justification for his robbery as does a 
like assumption1 on the part of the     
government1 for taking a man's property 
without his consent4 ,the government's  
pretence of protecting him1 as an       
equivalent for the taxation1 affords no 
justification4 ,it is for himself to    
decide whether he desires such          
protection as the government offers him4
 ,if he do not desire it1 or do not     
bargain for it1 the government has no   
more right than any other insurance     
company to impose it upon him1 or make  
him pay for it4  ,trial by the country1 
and no taxation without consent1 were   
the two pillars of ,english liberty1    
7when ,england had any liberty17 and the
 first principles of the ,common ,law4  
,they mutually sustain each other2 and  
neither can stand without the other4    

,without both1 no people have any       
guaranty for their freedom2 with both1  
no people can be otherwise than         
free4#aah  ,by what force1 fraud1 and   
conspiracy1 on the part of kings1       
nobles1 and a few wealthy freeholders1  
these pillars have been prostrated in   
,england1 it is designed to show more   
fully in the next volume1 if it should  
be necessary4  ,footnote #aah3 ,trial by
 the country1 and no taxation without   
consent1 mutually sustain each other1   
and can be sustained only by each other1
 for these reasons3 #a4 ,juries would   
refuse to enforce a tax against a man   
who had never agreed to pay it4 ,they   
would also protect men in forcibly      
resisting the collection of taxes to    
which they had never consented4         
,otherwise the jurors would authorize   
the government to tax themselves without
 their consent1--a thing which no jury  
would be likely to do4 ,in these two    
ways1 then1 trial by the country would  
sustain the principle of no taxation    

without consent4 #b4 ,on the other hand1
 the principle of no taxation without   
consent would sustain the trial by the  
country1 because men in general would   
not consent to be taxed for the support 
of a government under which trial by the
 country was not secured4 ,thus these   
two principles mutually sustain each    
other4  ,but1 if either of these        
principles were broken down1 the other  
would fall with it1 and for these       
reasons3 #a4 ,if trial by the country   
were broken down1 the principle of no   
taxation without consent would fall with
 it1 because the government would then  
be able to tax the people without their 
consent1 inasmuch as the legal tribunals
 would be mere tools of the government1 
and would enforce such taxation1 and    
punish men for resisting such taxation1 
as the government ordered4 #b4 ,on the  
other hand1 if the principle of no      
taxation without consent were broken    
down1 trial by the country would fall   
with it1 because the government1 if it  

could tax people without their consent1 
would1 of course1 take enough of their  
money to enable it to employ all the    
force necessary for sustaining its own  
tribunals1 7in the place of juries17 and
 carrying their decrees into execution4