 Notes of a trial by jury by Lysander Spooner. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Read by Beth Ann. Trial by a jury by Lysander Spooner. Notes. Entered according to Act of Congress in the year 1852 by Lysander Spooner. In the clerk's office of the District Court of Massachusetts. Notice to English publishers. The author claims the copyright of this book in England on common law principles without regard to acts of parliament. And if the main principle of this book itself be true is that no legislation in conflict with the common law is of any validity, his claim is a legal one. He forbids anyone to reprint the book without his consent. Stereotype by Horbritt and Robbins. New England type and stereotype foundry Boston. Note. This volume, it is presumed by the author, gives what will generally be considered satisfactory evidence, though not all the evidence of what the common law trial by jury really is. In a future volume, if it should be called for, it is designed to cooperate the grounds taken in this. Give a concise view of the English Constitution. Show the unconstitutional character of the existing government in England and the unconstitutional means by which the trial by jury has been broken down in practice. Prove that neither in England nor the United States have legislatures ever been invested by the people with any authority to impair the powers, change the oaths, or, with few exceptions, abridge the jurisdiction of juries or select jurors on any other than common law principles. And, consequently, legislation is still constitutionally subordinate to the discretion and consciousness of common law juries. In all cases, both civil and criminal, in which juries sit, the same volume will probably also discuss several political and legal questions which will naturally assume importance if the trial by jury should be reestablished. End of Notes Chapter 1 of An Essay on the Trial by Jury by Lysander Spooner This is the LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org Read by Beth Ann Trial by Jury by Lysander Spooner Chapter 1 The Rights of Juries to Judge of the Justice of Laws Section 1 For more than 600 years, that is, since Magna Carta in 1215, there has been no clearer principle of English or American constitutional law than that, in criminal cases, it is not only the right and duty of juries who judge what are the facts, what is the law, and what was the moral intent of the accused. But that it is also their right and their primary and paramount duty to judge of the justice of the law and to hold all laws invalid that are, in their opinion, unjust or oppressive, and all persons guiltless in violating or resisting the execution of such laws. Unless such be the right and duty of jurors, it is plain that, 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 hands for carrying into execution any injustice and oppression it may desire to have executed. But for their right to judge of the law and the justice of the law, juries would be no protection to an accused person, even as to matters of fact. For, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence, that is, it can dictate what evidence is admissible and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them to convict on any evidence whatever it pleases to offer them. That the rights and duties of jurors must necessarily be such as are here claimed for them will be evident when it is considered what the trial by jury is and what is its object. The trial by jury then is a trial by the country, that is, by the people, as distinguished from a trial by the government. It was anciently called trial per país, that is, trial by the country. And now, in every criminal trial, the jury are told that the accused has, for trial, put himself upon the country, which country you, the jury, are. The object of this trial by the country or by the people and preference to a trial by the government is to guard against every species of oppression by the government. In order to affect this end, it is indispensable that the people, or the country, judge of and determine their own liberties against the government instead of the government's judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the government if they are not allowed to determine what those liberties are? Any government that is its own judge of and determines authoritatively for the people what are its own powers over the people is an absolute government, of course. It has all the powers that it chooses to exercise. There is no other, or at least no more accurate, definition of despotism than this. On the other hand, any people that judge of and determine authoritatively for the government what are their own liberties against the government, of course, retain all the liberties they wish to enjoy. And this is freedom. At least, it is freedom to them, because though it may be theoretically imperfect, it, nevertheless, corresponds to their highest notions of freedom. To secure this right of the people to judge of their own liberties against the government, the jurors are taken, or must be, to make them lawful jurors, from the body of the people, by lot, or by some process that precludes any previous knowledge, choice, or selection of them on the part of the government. This is done to prevent the government's constituting a jury of its own partisans or friends. In other words, to prevent the government's packing a jury, with a view to maintain its own laws and accomplish its own purposes. It is supposed that, if twelve men be taken by lot from the mass of the people without the possibility of any previous knowledge, choice, or selection of them on the part of the government, the jury will be a fair epitome of the country at large, and not merely of the party or faction that sustain the measures of the government. That substantially all classes of opinions prevailing among the people will be represented in the jury, and especially that the opponents of the government, if the government have any opponents, will be represented there, as well as its friends, that the classes who are oppressed by the laws of the government, if any are this oppressed, will have their representatives in the jury, as well as those classes who take sides with the oppressor, that is, with the government. It is fairly presumable that such a tribunal will agree to no conviction, except such as substantially the whole country would agree to, if they were present, taking part in the trial. A trial by such a tribunal is, therefore, in effect, a trial by the country. In its results it probably comes as near to a trial by the whole country as any trial that is practicable to have, without too great inconvenience and expense. And as unanimity is required for conviction, it follows that no one can be convicted except for the violation of such laws as substantially the whole country wish to have maintained. The government can enforce none of its laws by punishing offenders through the verdicts of juries, except such as substantially the whole people wish to have enforced. The government, therefore, consistently with the trial by jury, can exercise no power over the people, or, what is the same thing, over the accused person, who represents the rights of the people. Except such as substantially the whole people the country consent that it may exercise. In such a trial, therefore, the country, or the people, judge of and determine their own liberties against the government, instead of the government's judging of and determining its own powers over the people. But all this trial by the country would be no trial at all by the country, but only a trial by the government. If the government could either declare who may and who may not be jurors, or could dictate to the jury anything whatever, either of law or evidence, that is of the essence of the trial. If the government may decide who may and who may not be jurors, it will of course select only its partisans, and those friendly to its measures. It may not only prescribe who may and who may not be eligible to be drawn as jurors, but it may also question each person drawn as a juror as to his sentiments in regard to the particular law involved in each trial. Before suffering him to be sworn on the panel and exclude him if he be found unfavorable to the maintenance of such a law. To show that this supposition is not an extravagant one, it may be mentioned that courts have repeatedly questioned jurors to ascertain whether they were prejudiced against the government. That is, whether they were in favor of or opposed to such laws of the government as were to be put in issue in the then pending trial. This was done in 1851 in the United States District Court for the District of Massachusetts by Payleg Sprague, the United States District Judge, in impaneling three several juries for the trial of Scott, Haydn, and Morris, charged with having aided in the rescue of a fugitive slave from the custody of the United States Jeopardy Marshal. This judge caused the following question to be propounded to all the jurors separately, and those who answered unfavorably for the purposes of the government were excluded from the panel. Do you hold any opinions upon the subject of the fugitive slave law, so-called, which will induce you to refuse to convict a person indicted under it if the facts set forth in the indictment and constituting the offense are proved against him, and the court directs you that the law is constitutional? The reason of this question was that the fugitive slave law, so-called, was so obnoxious to a large portion of the people as to render a conviction under it hopeless if the jurors were taken indiscriminately from among the people. A similar question was soon afterwards propounded to the persons drawn as jurors in the United States Circuit Court for the District of Massachusetts by Benjamin R. Curtis, one of the justices of the Supreme Court of the United States, in impaneling a jury for the trial of the fore-said Morris on the charge before mentioned. And those who did not answer the question favorably for the government were again excluded from the panel. It has also been a habitual practice with the Supreme Court of Massachusetts in impaneling juries for the trial of capital offenses to inquire of the persons drawn as jurors whether they had any conscientious scruples against finding verdicts of guilty in such cases. That is, whether they had any conscientious scruples against sustaining the law, prescribing death as the punishment of the crime to be tried, and to exclude from the panel all who answered in the affirmative. The only principle upon which these questions are asked is this, that no man shall be allowed to serve as juror unless he be ready to enforce any enactment of the government, however cruel or tyrannical it may be. What is such a jury good for as a protection against the tyranny of the government? A jury like that is probably nothing but a mere tool of oppression in the hands of the government. 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 measures. If that be the true principle of the trial by jury, the trial is utterly worthless as a security to liberty. The Tsar might, with perfect safety to his authority, introduce the trial by jury into Russia, if he could but be permitted to select his jurors from those who are ready to maintain his laws without regard to their injustice. This example is sufficient to show that the very pith of the trial by jury as a safeguard to liberty consists in the juries being taken indiscriminately from the whole people and in their right to hold invalid all laws which they think unjust. End of footnote. So also, if the government may dictate to the jury what laws they are to enforce, it is no longer a trial by the country, but a trial by the government. Because the jury then try the accused, not by any standard of their own, not by their own judgment of their rightful liberties, but by a standard dictated to them by the government. And the standard, thus dictated by the government, becomes the measure of the people's liberties. If the government dictate the standard of trial, it of course dictates the result of the trial. And such a trial is no trial by the country, but only a trial by the government. And in it, the government determines what are its own powers over the people, and instead of the people's determining what are their own liberties against the government. In short, if the jury have no right to judge of the justice of a law of the government, they plan they can do nothing to protect the people against the oppressions of the government. For there are no oppressions which the government may not authorize by law. The jury are also to judge whether the laws are rightly expounded to them by the court. Unless they judge on this point, they do nothing to protect their liberties against the oppressions that are capable of being practiced under cover of corrupt exposition of the laws. If the judiciary can authoritatively dictate to a jury any exposition of a law, they can dictate to them the law itself, and such laws as they please. Because laws are, in practice, one thing or another, according as they are expounded. The jury must also judge whether there really be any such law, be it good or bad, as the accused is charged with having transgressed. Unless they judge on this point, the people are liable to have their liberties taken from them by brute force, without any law at all. The jury must also judge of the laws of evidence. If the government can dictate to a jury the laws of evidence, it can not only shut out any evidence it pleases, tending to vindicate the accused, but it can require that any evidence whatever that it pleases to offer be held as conclusive proof of any offense whatever which the government chooses to allege. It is manifest therefore that the jury must judge of and try the whole case, in every part and parcel of the case, free of any dictation or authority on the part of the government. They must judge of the existence of the law, of the true exposition of the law, of the justice of the law, and of the admissibility and weight of all the evidence offered. Otherwise the government will have everything its own way. The jury will be mere puppets in the hands of the government. And the trial will be, in reality, a trial by the government, and not a trial by the country. By such trials the government will determine its own powers over the people instead of the peoples determining their own liberties against the government. And it will be an entire delusion to talk, as for centuries we have done, of the trial by jury as a palladium of liberty or as any protection to the people against the oppression and tyranny of the government. The question then between trial by jury as thus described and trial by the government is simply a question between liberty and despotism. The authority to judge what are the powers of the government and what the liberties of the people must necessarily be vested in one or the other of the parties themselves, the government or the people. Because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with. If, on the other hand, the authority be vested in the people, then the people have all liberties as against the government that accept such as substantially the whole people through a jury choose to disclaim. And the government can exercise no power except such as substantially the whole people through a jury consent that it may exercise. Section 2. The force and justice of the preceding argument cannot be evaded by saying that the government is chosen by the people, that in theory it represents the people. That it is designed to do the will of the people, that its members are all sworn to observe the fundamental or constitutional law instituted by the people. That its acts are therefore entitled to be considered the acts of the people, and that to allow a jury representing the people to invalidate the acts of the government would therefore be arraigning the people against themselves. There are two answers to such an argument. One answer is that, in a representative government, there is no absurdity or contradiction nor any arraign of the people against themselves in requiring that the statutes or enactments of the government shall pass the ordeal of any number of separate tribunals before it shall be determined that they are to have the force of laws. Our American constitutions have provided five of these separate tribunals to wit, representatives, senate, executive, jury, and judges, and have made it necessary that each enactment shall pass the ordeal of all these separate tribunals before its authority can be established by the punishment of those who choose to transgress it. And there is no more absurdity or inconsistency in making a jury one of these several tribunals than there is in making the representatives, or the senate, or the executive, or the judges, one of them. There is no more absurdity in giving a jury a veto upon the laws than there is in giving a veto to each of these other tribunals. The people are no more arrayed against themselves when a jury puts its veto upon a statute which the other tribunals have sanctioned than they are when the same veto is exercised by the representatives, the senate, the executive, or the judges. Footnote. The executive has a qualified veto upon the passage of laws in most of our governments and an absolute veto in all of them upon the execution of any laws which he deems unconstitutional because his oath is to support the constitution as he understands it forbids him to execute any laws that he deems unconstitutional. End of footnote. But another answer to the argument that the people are arrayed against themselves when a jury holds an enactment of the government invalid is that the government and all the departments of the government are merely the servants and agents of the people. Not invested with arbitrary or absolute authority to bind the people, but required to submit all their enactments to the judgment of a tribunal more fairly representing the whole people before they carry them into execution by punishing any individual for transgressing them. If the government were not thus required to submit their enactments to the judgment of the country before executing them upon individuals, if in other words the people had reserved to themselves no veto upon the acts of the government, the government instead of being a mere servant and agent of the people would be an absolute despot over the people. It would have all power in its own hands because the power to punish carries all other powers with it. A power that can of itself and by its own authority punish disobedience can compel obedience and submission and is above all responsibility for the character of its laws is in short a despotism and it is of no consequence to inquire how a government came by this power to punish. Whether by prescription, by inheritance, by usurpation, or by delegation from the people. If it now have but got it, the government is absolute. It is plain therefore that if the people have invested the government with power to make laws that absolutely bind the people and to punish the people for transgressing those laws, the people have surrendered their liberties unreservedly into the hands of the government. It is of no avail to say in answer to this view of the case that in surrounding their liberties to the hands of the government the people took an oath from the government that it would exercise its power within certain constitutional limits for when did oaths ever restrain a government that was otherwise unrestrained? Or when did a government fail to determine that all its acts were within the constitutional and authorized limits of its power if it were permitted to determine that question for itself? Neither is it of any avail to say that if the government abuse its power and enact unjust and oppressive laws, the government may be changed by the influence of discussion and the exercise of the right of suffrage. Discussion can do nothing to prevent the enactment or procure the repeal of unjust laws unless it be understood that the discussion is to be followed by resistance. The tyrants care nothing for discussions that are to end only in discussion. Discussions which do not interfere with the enforcement of their laws are but idle wind to them. Suffrage is equally powerless and unreliable. It can be exercised only periodically and the tyranny must at least be borne until the time for suffrage comes. Besides, when the suffrage is exercised it gives no guarantee for the repeal of the existing laws that are oppressive and no security against the enactment of new ones that are equally so. The second body of legislators are liable and likely to be just as tyrannical as the first. If it be said that the second body may be chosen for their integrity, the answer is that the first were chosen for that very reason and yet proved tyrants. The second will be exposed to the same temptations as the first and will be just as likely to prove tyrannical. Who ever heard that succeeding legislators were on the whole more honest than those that preceded them? What is there in the nature of men or things to make them so? If it be said that the first body were chosen for motives of injustice, that fact proves that there is a portion of society who desired to establish injustice. And if they were powerful or artful enough to procure the election of their instruments to compose the first legislature, they will be likely to be powerful or artful enough to procure the election of the same or similar instruments to compose the second. The right of suffrage therefore and even a change of legislators guarantees no change of legislation, certainly no change for the better. Even if a change for the better actually comes, it comes too late. Because it comes only after more or less injustice has been irreparably done. But at best, the right of suffrage can be exercised only periodically and between the periods the legislators are wholly irresponsible. No despot was ever more entirely irresponsible than our Republican legislators during the period for which they are chosen. They can neither be removed from their office nor called to account while in their office nor punished after they leave their office. Be their tyranny what it may. Moreover, the judicial and executive departments of the government are equally irresponsible to the people and are only responsible by impeachment and dependence for their salaries to these irresponsible legislators. This dependence of the judiciary and executive upon the legislature is a guarantee that they will always sanction and execute its laws, whether just or unjust. Thus the legislators hold the whole power of the government in their hands and are at the same time utterly irresponsible for the manner in which they use it. If now this government, the three branches thus really united in one, can determine the validity of and enforce its own laws, it is for the time being entirely absolute and wholly irresponsible to the people. But this is not all. These legislators and this government so irresponsible while in power can perpetuate their power at pleasure if they can determine what legislation is authoritative upon the people and can enforce obedience to it, for they can not only declare their power perpetual, but they can enforce submission to all legislation that is necessary to secure its perpetuity. They can, for example, prohibit all discussion of the rightfulness of their authority, forbid the use of the suffrage, prevent the election of any successors, disarm, plunder, imprison and even kill all who refuse submission. If therefore the government, all departments united, be absolute for a day, that is, if it can for a day enforce obedience to its own laws, it can, in that day, secure its power for all time. Like the queen who wished to reign but for a day, but in that day caused the king, her husband, to be slain and usurped his throne. Nor will it avail to say that such acts would be unconstitutional and that the unconstitutional acts may be lawfully resisted. For everything a government pleases to do will, of course, be determined to be constitutional. If the government itself be permitted to determine the question of the constitutionality of its own acts, those who are capable of tyranny are capable of perjury to sustain it. The conclusion, therefore, is that any government that can, for a day, enforce its own laws without appealing to the people, or to a tribunal fairly representing the people, for their consent is, in theory, an absolute government, irresponsible to the people and can perpetrate its power at pleasure. The trial by a jury is based upon a recognition of this principle and therefore forbids the government to execute any of its laws by punishing violators in any case whatsoever without first getting the consent of the country or the people through a jury. In this way the people at all times hold their liberties in their own hands and never surrender them, even for a moment, into the hands of the government. The trial by a jury then gives to any and every individual the liberty at any time to disregard or resist any law whatever of the government if he be willing to submit to the decision of a jury the questions whether the law be intrinsically just and obligatory and whether his conduct in disregarding or resisting it were right in itself. And any law, which is not in such trial, obtained the unanimous sanction of twelve men taken at random from the people and judging according to the standard of justice in their own minds free from all dictation and authority of the government may be transgressed and resisted with impunity by whom so ever pleases to transgress or resist it. And if there be so much as a reasonable doubt of the justice of the laws the benefit of that doubt must be given to the defendant and not to the government so that the government must keep its laws clearly within the limits of justice if it would ask a jury to enforce them. End of footnote. The trial by a jury authorizes all this or it is a sham and a hoax utterly worthless for protecting the people against oppression. If it do not authorize an individual to resist the first and least act of injustice or tyranny on the part of the government it does not authorize him to resist the last and greatest. If it do not authorize individuals to nip tyranny in the bud it does not authorize them to cut it down when its branches are filled with the ripe fruits of plunder and oppression. Those who deny the right of a jury to protect an individual in resisting an unjust law of the government deny him all legal defense whatsoever against oppression. The right of revolution which tyrants in mockery accord to mankind is no legal right under a government it is only a natural right to overturn a government. The government itself never acknowledges this right and the right is practically established only when and because the government no longer exists to call it in question. The right therefore can be exercised with impunity only when it is exercised victoriously. All unsuccessful attempts at revolution however justifiable in themselves are punished as treason if the government be permitted to judge of the treason. The government itself never admits the injustice of its laws as a legal defense for those who have attempted a revolution and failed. The right of revolution therefore is a right of no practical value except for those who are stronger than the government. So long therefore as the oppressions of a government are kept within such limits as simply not to exasperate against it a power greater than its own the right of revolution cannot be appealed to and is therefore inapplicable to the case. This affords a wide field for tyranny and if a jury cannot hear and convene the oppressed are utterly defenseless. It is manifest that the only security against the tyranny of the government lies in forcible resistance to the execution of injustice because the injustice will certainly be executed unless it be forcibly resisted. And if it be but suffered to be executed it must then be born for the government never makes compensation for its own wrongs. Since then this forcible resistance to the injustice of the government is the only possible means of preserving liberty. It is indispensable to all legal liberty that this resistance should be legalized. It is perfectly self evident that where there is no legal right to resist the oppression of the government there can be no legal liberty. And here it is all important to notice that practically speaking there can be no legal right to resist the oppressions of the government unless there be some legal tribunal other than the government and wholly independent of and above the government to judge between the government and those who resist its oppressions. In other words to judge what laws of the government are to be obeyed and what may be resisted and held for not. The only tribunal known to our laws for this purpose is a jury. If a jury have not the right to judge between the government and those who disobey its laws and resist its oppressions the government is absolute and the people legally speaking are slaves. Like many other slaves they may have sufficient courage and strength to keep their masters somewhat in check but they are nevertheless known to the law only as slaves. That this right of resistance was recognized as a common law right when the ancient and genuine trial by jury was enforced is not only proved by the nature of the trial itself but is acknowledged by history. Footnote. Helen says the relation established between a lord and his vassal by the feudal tenure far from containing principles of any servile implicit obedience permitted the compact to be dissolved in case of its violation by either party. This extended as much to the sovereign as to inferior lords. If a vassal was aggrieved and justice was denied him he sent a defiance that is a renunciation of fidelity to the king and was entitled to enforce redress at the point of his sword. It then became a contest of strength as between two independent potentates and was terminated by treaty advantageous or otherwise according to the fortune of war. There remained the original principle that allegiance depended conditionally upon good treatment and that an appeal might be lawfully made to arms against an oppressive government. Nor was this we may be sure left for extreme necessity or thought to require a long enduring forbearance. In modern times a king compelled by his subject swords to abandon any pretension would be supposed to have ceased to reign and the express recognition of such a right as that of insurrection has been justly deemed inconsistent with the majesty of law. But router ages had router sentiments. Force was necessary to repel force and men accustomed to see the king's authority defied by a private riot were not much shocked when it was resisted in defense of public freedom. Meta wages 240 to 242. End of footnote. This right of resistance is recognized by the Constitution of the United States as a strictly legal and constitutional right. It is so recognized first by the provision that the trial of all crimes except in cases of impeachment shall be by jury that is by the country and not by the government. Secondly by the provision that the right of the people to keep and bear arms shall not be infringed. This constitutional security for the right to keep and bear arms 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 it. The Constitution therefore takes it for granted that the people will judge of the conduct of the government and that as they have the right they will also have the sense to use arms whenever the necessity of the case justifies it. And it is a sufficient and legal defense for a person accused of using arms against the government if he can show to the satisfaction of a jury or even any one of a jury that the law he resisted was an unjust one. In the American state constitutions also this right of resistance to the prescience of the government is recognized in various ways as a natural legal and constitutional right. In the first place it is so recognized by provisions establishing the trial by jury thus requiring that the accused person shall be tried by the country instead of the government. In the second place it is recognized by many of them as for example those of Massachusetts, Maine, Vermont, Connecticut, Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee, Arkansas, Mississippi, Alabama, and Florida by provisions expressly declaring that the people shall have the right to bear arms. In many of them also as for example those of Maine, New Hampshire, Vermont, Massachusetts, New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida, Iowa, and Arkansas by provisions in their bills of rights declaring that men have a natural inherent and inalienable right of defending their lives and liberties. This of course means that they have a right to defend them against any injustice on the part of the government and not merely on the part of private individuals because the object of all bills of rights is to assert the rights of individuals and the people as against the government and not as against private persons. It would be a matter of ridiculous super aggregation to assert in a constitution of government the natural right of man to defend their lives and liberties against private trespassers. Many of these bills of rights also assert the natural right of all men to protect their property that is to protect it against the government. It would be unnecessary and silly indeed to assert in a constitution of government the natural right of individuals to protect their property against thieves and robbers. The Constitution of New Hampshire and Tennessee also declare that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind. The legal effect of these constitutional recognitions of the right of individuals to defend their property, liberties, and lives against the government is to legalize resistance to all injustice and oppression and every name and nature whatsoever on the part of the government. But for this right of resistance on the part of the people all governments would become tyrannical to a degree which few people are aware. Constitutions are utterly worthless to restrain the tyranny of governments unless it be understood that the people will, by force, compelled the government to keep within the constitutional limits. Practically speaking, no government knows any limits to its power except the endurance of the people. But that the people are stronger than the government and will resist in extreme cases our governments would be little or nothing else than organized systems of plunder and oppression. All, or nearly all, the advantage there is in fixing any constitutional limits to the power of a government is simply to give notice to the government of the point at which it will meet with resistance. If the people are then as good as their word, they may keep the government within the bounds they have set for it. Otherwise it will disregard them as is proved by the example of all our American governments in which the constitutions have all become obsolete at the moment of their adoption for nearly or quite all purposes except the appointment of officers who at once became practically absolute, except so far as they are restrained by the fear of popular resistance. The bounds set to the power of the government by the trial by jury as will hereafter be shown are these, that the government shall never touch the property, person, or natural or civil rights of an individual against his consent except for the purpose of bringing them before a jury for trial. Unless in pursuance and in execution of a judgment or decree, rendered by a jury in each individual case, upon such evidence and such law as are satisfactory to their own understanding and consciences irrespective of all legislation of the government. End of Chapter 1, Trial by Jury Chapter 2, Part 1 of an essay on the trial by jury. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org Read by Beth M. Trial by a jury by Lysander Spooner Chapter 2, Part 1 The trial by jury as defined by Magna Carta That the trial by jury is all that has been claimed for it in the preceding chapter is proved both by the history and the language of the great charter of English liberties to which we are to look for a true definition of the trial by jury. End of which the guarantee for that trial is the vital and most memorable part. Section 1, The History of Magna Carta In order to judge of the object and meaning of that chapter of Magna Carta which secures the trial by jury, it is to be borne in mind that, at the time of Magna Carta, the king, with exceptions and material to this discussion, but which will appear hereafter, was constitutionally the entire government, the sole legislative, judicial, and executive power of the nation. The executive and judicial officers were merely his servants, appointed by him, and removable at his pleasure. In addition to this, the king himself often sat in his court, which always attended his person. He there heard causes and pronounced judgment, and though he was assisted by the advice of other members, it is not to be imagined that a decision could be obtained contrary to his inclination or opinion. Judges were in those days and afterwards such abject servants of the king that, we find that King Edward I, 1272-1307, find and imprison his judges in the same manner as Alfred the Great among the Saxons had done before him by the sole exercise of his authority. Parliament, so far as there was a parliament, was a mere council of the king. Note. Koch says, The king of England is armed with diverse councils, one whereof is called Communae Concilium, the common council, and that is the court of parliament, and so it is legally called, in rites and judicial proceedings, Communae Concilium Regne Anglia, the common council of the kingdom of England, and another is called Magnum Concilium, Great Council. This is sometimes applied to the upper house of parliament, and sometimes out of parliament time, to the peers of the realm, Lords of Parliament, who are called Magnum Concilium Regis, the Great Council of the King. Thirdly, as every man knoweth, the king hath a privy council for matters of state. The fourth council of the king are his judges for law matters. Koch's Institutes, 110A. End footnote. It assembled only at the pleasure of the king, sat only during his pleasure, and when sitting had no power, so far as general legislation was concerned, beyond that of simply advising the king. The only legislation to which their assent was constitutionally necessary was demands for money and military services for extraordinary occasions. Even Magna Carta itself makes no provisions whatever for any parliaments, except when the king should want the means to carry on war, or to meet some other extraordinary necessity. Note. The Great Charter of Henry III, 1216 and 1225, confirmed by Edward I, 1297, makes no provision whatever for, or mention of, a parliament, unless the provision Chapter 37, that Esquidge, a military contribution, from henceforth shall be taken like as it was want to be in the time of King Henry, our grandfather. Mean that a parliament shall be summoned for that purpose. End footnote. He had no need of parliaments to raise taxes for the ordinary purposes of the government, for his revenues from the rents of the crowned lands and other sources were ample for all except extraordinary occasions. Parliaments, too, when assembled, consisted only of bishops, barons, and other great men of the kingdom, unless the king chose to invite others. Note. The Magna Carta of John, Chapter 17 and 18, defines those who were entitled to be summoned to parliament, to wit. The archbishops, bishops, abbots, earls, and great barons of the realm, and all others who hold of us in chief, those who held land in the king in chief included none below the rank of knights. End footnote. There was no house of commons at that time, and the people had no right to be heard, unless as petitioners. Note. The parliaments of that time were, doubtless, such as Carlisle describes them, when he says, the parliament was at first a most simple assemblage quite cognate to the situation. That red William, or whoever had taken on him the terrible task of being king of England, was want to invite, often as about Christmas time, his subordinate kinglets, barons as he called them, to give him the pleasure of their company for a week or two. There, in earnest conference all morning, in freer talk over Christmas cheer all evening, and some big royal hall of Westminster, Winchester, or wherever he might be, with log fires, huge rounds of roasts and boiled, not lacking momsy, and other generous liquor, they took counsel concerning the arduous matters of the kingdom. End footnote. Even when laws were made at the time of the parliament, they were made in the name of the king alone. Sometimes it was inserted in the laws that they were made with the consent or advice of the bishops, barons, and others assembled, but often this was omitted. Their consent or advice was evidently a matter of no legal importance to the enactment or validity of the laws, but only inserted, when inserted at all, with a view of obtaining a more willing submission to them on the part of the people. The style of enactment generally was either the king wills and commands, or some other form significant of the sole legislative authority of the king. The king could pass laws at any time when it pleased him. The presence of a parliament was wholly unnecessary. Hume says, It is asserted by Sir Henry's playmen, as an undoubted fact, that, during the reigns of the Norman princes, every order of the king, issued with the consent of his privy council, had the full force of law. And other authorities abundantly corroborate this assertion. Note. This point will be more fully established hereafter. End of footnote. The king was, therefore, constitutionally the government, and the only legal limitation upon his power seems to have been simply the common law, usually called the law of the land, which he was bound by oath to maintain, which oath had about the same practical value as similar oaths have always had. This law of the land seems not to have been regarded at all by many of the kings, except so far as they found it convenient to do so, or were constrained to observe it by fear of arousing resistance. But as all people are slow in making resistance, oppression and usurpation often reached a great height. And, in the case of John, they had become so intolerable as to enlist the nation almost universally against him, and he was reduced to the necessity of complying with any terms the barons saw fit to dictate to him. It was under these circumstances that the great charter of English liberties was granted. The barons of England, sustained by the common people, having their king in their power, compelled him, as the price of his throne, to pledge himself that he would punish no freemen for a violation of any of his laws, unless with the consent of the peers, that is, the equals of the accused. The question here arises whether the barons and people intended that those peers, the jury, should be mere puppets in the hands of the king, exercising no opinion of their own as to the intrinsic merits of the accusations they should try, or the justice of the laws they should be called on to enforce. Whether those haughty and victorious barons, when they had their tyrant king at their feet, gave back to him his throne with full power to enact any tyrannical laws he might please, reserving only to a jury, the country, the contemptible and servile privilege of ascertaining, under the dictation of the king or his judges as to the laws of evidence, the simple fact whether those laws have been transgressed. Was this the only restraint which, when they had all power in their hands, they placed upon the tyranny of a king, whose oppressions they had risen in arms to resist? Was it to obtain such a charter as that, that the whole nation had united, as it were, like one man against their king? Was it on such a charter that they intended to rely, for all future time, for the security of their liberties? No, they were engaged in no such senseless work as that. On the contrary, when they required him to renounce forever the power to punish any freemen, unless by the consent of his peers they intended those peers should judge of and try the whole case on its merits, independently of all arbitrary legislation or judicial authority on the part of the king. 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 king and out of the power of his laws, and placed them in the keeping of the people themselves. And this it was that made the trial by jury the palladium of their liberties. The trial by jury, be it observed, was the only real barrier interposed by them against absolute despotism. Could this trial, then, have been such an entire farce as it necessarily must have been, if the jury had had no power to judge of the justice of the laws the people were required to obey? Did it not rather imply that the jury were to judge independently and fearlessly, as to everything involved in the charge, and especially as to its intrinsic justice, and thereon give their decision, unbiased by any legislation of the king, whether the accused might be punished? The reason of the thing, no less than the historical celebrity of the events, as securing the liberties of the people and the veneration with which the trial by jury has continued to be regarded, notwithstanding its essence and vitality have been almost entirely extracted from it in practice, would settle the question if other evidences had left the matter in doubt. Besides, if his laws were to be authoritative with the jury, why should John indignally refuse, as at first he did, to grant the charter, and finally grant it only when brought to the last extremity, on the ground that it deprived him of all power and left him only the name of a king? He evidently understood that the juries were to veto his laws and paralyze his power at discretion by forming their own opinions as to the true character of the offenses they were to try, and the laws they were to be called on to enforce, and that the king wills and commands was to have no weight with them contrary to their own judgments of what was intrinsically right. Note, 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 juries. When the schedule of liberties demanded by the barons was shown to him, of which the trial by jury was the most important because it was the only one that protected all the rest, the king, falling to a violent passion, asked, why the barons did not with these exactions demand the kingdom? And with a solemn oath protested that he would never grant such liberties as would make himself a slave. But afterwards, seeing himself deserted and fearing they would seize his castles, he sent the Earl of Pembroke and other faithful messengers to them to let them know he would grant them the laws and liberties they desired. But after the charter had been granted, the king's mercenary soldiers, desiring war more than peace, were by their leaders continually whispering in his ears that he was now no longer king but the scorn of other princes, and that it was more eligible to be no king than such a one as he. He applied to the pope that he might by his apostolic authority make void what the barons had done. At Rome he met with what success he could desire, where all the transactions with the barons were fully represented to the pope, and the charter of liberties shown to him in writing, which, when he had carefully perused, he, with a furious look, cried out, What do the barons of England endeavor to dethrone a king who has taken upon him the Holy Cross and is under the protection of the apostolic seat, and would they force him to transfer the dominions of the Roman Church to others? By Saint Peter this injury must not pass unpunished. Then debating the matter with the cardinals he, by a definitive sentence, damned and castrated for ever the charter of liberties, and sent the king a bowl containing that sentence at large. Eckhart's history of England, page 106 to 107. These things show that the nature and effect of the charter were well understood by the king and his friends, that they all agreed that he was a factually stripped of power, yet the legislative power had not been taken from him, but only the power to enforce his laws, unless juries should freely consent to their enforcement. End of footnote. The barons and people having obtained by the charter all the liberties they had demanded of the king, it was further provided by the charter itself that 25 barons should be appointed by the barons out of their number to keep special villagers in the kingdom to see that the charter was observed, with authority to make war upon the king in case of its violation. The king also, by the charter, so far absolved all the people of the kingdom from their allegiance to him as to authorize and require them to swear to obey the 25 barons in case they should make war upon the king for infringement of the charter. It was then thought by the barons and people that something substantial had been done for the security of their liberties. This charter, in its most essential features and without any abatement as to the trial by jury, has since been confirmed more than 30 times and the people of England have always had a traditionary idea that it was of some value as a guarantee against oppression. Yet that idea has been an entire delusion unless the jury have had the right to judge of the justice of the laws they were called on to enforce. Section 2 The language of Magna Carta The language of the great charter establishes the same point that is established by its history, is that it is the right and duty of the jury to judge of the justice of the laws. The chapter guaranteeing the trial by jury is in these words No less liberal homo capiator, vel imprisonator, out desicator, out urlagetor, out exulator, out aleque modo destruator, nex superium ibimus, nex superium mutsemus, nisi per legali judizium, parium suorum, vel per legium terei. Note. The laws were at that time all written in Latin. End footnote. The corresponding chapter in the great charter granted by Henry III, 1225, and confirmed by Edward I, 1297, which charter is now considered the basis of the English laws and constitution, is in nearly the same words as follows. No less liberal homo capiator, vel imprisonator, out desicator, day libero, tenementor, vel libertatibus, vel liberes, consuetudinibus, out urlagetor, out exulator, out aleque modo destruator, nex superium ibimus, nex superium mutsemus, nex superium mutsemus, nisi per legali judizium, parium suorum, vel per legium terei. The most common translation of these words at the present day is as follows, no freemen shall be arrested or imprisoned or deprived of his free hold or his liberties or free customs or outlawed or exiled or in any manner destroyed, nor will we, the king, pass upon him nor condemn him unless by the judgment of his peers or the law of the land. Nex superium ibimus, nex superium mutsemus. There has been much confusion and doubt as to the true meaning of the words nex superium ibimus, nex superium mutsemus. The more common rendering has been, nor will we pass upon him nor condemn him. But some have translated them to mean nor will we pass upon him nor commit him to prison. Coke gives still a different rendering to the effect that no man shall be condemned to the king's suit either before the king in his bench nor before any other commissioner or judge whatsoever. Note, no man shall be condemned to the king's suit either before the king in his bench or please our corral regia before the king. And so are the words nex superium ibimus to be understood nor before any other commissioner or judge whatsoever. And so are the words nex superium mutsemus to be understood. But by the judgment of his peers that is equals or according to the law of the land Second Coke's institutes 46 and a footnote. But all these translations are clearly erroneous. In the first place nor will we pass upon him meaning thereby to decide upon his guilt or innocence judicially is not a correct rendering of the words nex superium ibimus. There is nothing whatever in those latter words that indicates judicial action or opinion at all. The words in their common signification describe physical action alone and the true translation of them as we'll hear after be seen is nor will we proceed against him executively. In the second place the rendering nor will we condemn him there is little or no analogy to any common or even uncommon signification of the words nex superium mutsemus. There is nothing in these latter words that indicates judicial action or decision. Their common signification like that of the words nex superium ibimus describes physical action alone. Nor will we send upon or against him would be the most obvious translation and as we shall hear after see such is the true translation. But although these words describe physical action on the part of the king as distinguished from judicial they nevertheless do not mean as one of the translation has it nor will we commit him to prison for that would be a mere repetition of what had already been declared by the words nex superium nator. Besides there is nothing about prisons in the words nex superium mutsemus nothing about sending him anywhere but only about sending something or somebody upon him or against him that is executively. Koch's rendering is if possible the most absurd and gratuitous of all what is there in the words nex superium mutsemus nor shall he be condemned before any other commissioner or judge whatsoever. Clearly there is nothing the whole rendering is a sheer fabrication and the whole object of it is to give color for the exercise of a judicial power by the king or his judges which is nowhere given them. Neither the words nex superium mutsemus nor any other words in the whole chapter authorize, provide for, describe or suggest any judicial action whatever on the part either of the king or of his judges or of anybody except the peers or jury. There is nothing about the king's judges at all and there is nothing whatever in the whole chapter so far as relates to the action that describes or suggests anything but executive action. Note Perhaps the assertion in the text should be made with this qualification that the words per legium terri according to the law of the land and the words per legale judicium parium suorum according to the legal judgment of his peers imply that the king proceeding to any executive action will take notice of the law of the land and of the legality of the judgment of the peers and will execute upon the prisoner nothing except what the law of the land authorizes and no judgments of the peers except legal ones. With this qualification the assertion in the text is strictly correct in the whole chapter that grants to the king or his judges any judicial power at all the chapter only describes and limits his executive power and a footnote but that all these translations are certainly erroneous is proved by a temporary charter granted by John a short time previous to the great charter for the purpose of giving an opportunity for conference, arbitration and reconciliation between him and his parents it was to have force until the matters and controversy between them could be submitted to the pope and to other persons to be chosen some by the king and some by the barons the words of the charter are as follows and that is know that we have granted to our barons who are opposed to us that we will neither arrest them nor deceive them nor will we proceed against them by force or by arms unless by the law of our kingdom or by the judgment of their peers in our court until consideration shall be had et cetera et cetera a copy of this charter is given in a note in Blackstone's introduction to the charters note see Blackstone's law page 294 Oxford edition end of footnote Mr. Christian speaks of this charter as settling the true meaning of the corresponding clause in Magna Carta on the principle that laws and charters on the same subject are to be construed with reference to each other see 3rd Christian's Blackstone 41 and note the true meaning of the words is also proved by the articles of the great charter of liberties demanded of the king by the barons and agreed to by the king under seal a few days before the date of the charter and from which the charter was framed note these articles of the charter are given in Blackstone's collection of charters and are also printed with the statutes of the written with the statutes of the realm also in Wilkins law of the English Saxons page 356 end of footnote here the words used are these that is the body of a free man shall not be arrested nor imprisoned nor deceased nor outlawed nor exiled nor in any manner destroyed nor shall the king proceed or ascend anyone against him with force against him with force unless by the judgment of his peers or the law of the land the true translation of the words next super am next super am in Magna Carta is thus made certain as follows nor will we the king proceed against him nor send anyone against him with force or arms Lingard says the words we will not destroy him nor will we go upon him nor will we send upon him have been very differently expounded by different legal authorities their real meaning may be learned from John himself who the next year promised by his letters patent next super eos per vim vel per arma ibimos vim regne nostri vel per euditium parium suorum incuria nostra nor will we go upon them by force or by arms unless by the law of our kingdom or the judgment of their peers in our court patent 16 Johann apodrad 11 ap numero 124 he had hitherto been in the habit of going with an armed force or sending an armed force on the lands and against the castles of all whom he knew or suspected to be his secret enemies without observing any form of law third lingard 47 and note end of footnote it is evident that the difference between the true and false translations of the words next super aim ibimos next super aim mitzemos is of the highest legal importance in as much as the true translation nor will we the king proceed against him nor send anyone against him by force or arms represents the king only in an executive character carrying the judgment of the peers and the law of the land into execution whereas the false translation nor will we pass upon him nor condemn him gives color for the exercise of a judicial power on the part of the king to which the king had no right but which according to the true translation belongs holy to the jury per legale euditium parrim suorum the foregoing interpretation is cooperated but were not already too plain to be susceptible of cooperation by the true interpretation of the phrase per legale euditium parrim suorum in giving this interpretation I leave out for the present the word legale which will be defined afterwards the true meaning of the phrase per euditium parrim suorum is the sentence of his peers the word euditium judgment has a technical meaning in the law signifying the decree rendered in the decision of a cause in civil suits this decision is called a judgment in transcery proceedings it is called a decree in criminal actions it is called a sentence or judgment indifferently thus in a criminal suit a motion and arrest of judgment means a motion and arrest of sentence note judgment euditium the sentence of the law pronounced by the court upon the matter contained in the record third blackstone 395 jacob's law dictionary tolemans ditto judgment is the decision or sentence of the law of justice or other competent tribunal as the result of the proceedings instituted therein for the redress of an injury for the law dictionary judgment euditium sentence of a judge against a criminal determination decision in general Bayley's dictionary judgment in a legal sense a sentence or decision pronounced by authority of the king in their own mouth or by that of their judges and officers whom they appoint to administer justice in their stead chamber's dictionary judgment in law the sentence or doom pronounced in any case civil or criminal by the judge or court by which it is tried Webster's dictionary sometimes the punishment itself is called euditium judgment or rather it was at the time of the Magna Carta for example in a statute passed 51 years after Magna Carta it was said that a baker for default in the weight of his bread debiat amaziori vell subire euditium plurie that is ought to be immersed or suffer the punishment or judgment of the pillroy also that a brewer is called contrary to the assies debiat amaziori vell pati euditium tumbreli that is ought to be immersed or suffer the punishment or judgment of the tumbreil 51 Henry 1266 also the statutes of uncertain date but supposed to be prior to Edward III or 1326 provide in chapters 6 and 10 for judgment of the pillroy see first rough head statutes 187-188 first statutes of the realm 203 Blackstone in his chapter of judgment and its consequences says judgment unless any matter be offered and arrest thereof follows upon conviction being the pronouncing of that punishment Blackstone's analysis of the laws of England book 4 chapter 29 section 1 Blackstone's law tracks 126 Koch says euditium the judgment is the guide and direction of the execution third institutes 210 end footnote in cases of sentence judgment are synonymous terms they are to this day commonly used in law books as synonymous terms and the phrase euditium therefore implies the geriatric the sentence the word pair means according to otherwise there is no sense in the phrase euditium there is sense in saying that a king might imprison disease outlaw exile or otherwise punish a man or proceed against him or send anyone against him by force or arms by a judgment of his peers but there is sense in saying that the king may imprison disease and punish a man or proceed against him or send anyone against him by force or arms according to because in that case the king would be merely carrying the sentence or judgment of the peers into execution the word pair in the phrase euditium of course means precisely what it does in the next phrase pair where it obviously means according to and not by as it is usually translated there would be no sense in saying that the king might proceed against a man by force or arms by the law of the land but there is sense in saying that he may proceed against him by force or arms according to the law of the land because the king would then be acting only as an executive officer carrying the law of the land into execution indeed the true meaning of the word by as used in similar cases now always is according to as for example when we say a thing was done by the government or by the executive by law we mean only that it was done by them according to law that is that they merely executed the law or if we say that the word by signifies by authority of the result will still be the same for nothing can be done by authority of law except with the law or directs to be done that is nothing can be done by authority of law except simply to carry the law itself into execution so nothing can be done by authority of the sentence of the peers or by authority of the law of the land except with the sentence of the peers or the law of the land themselves authorized or directed to be done nothing in short the sentence of the peers or the law of the land themselves into execution doing a thing by law or according to law is only carrying the law into execution and punishing a man by or according to the sentence or judgment of his peers is only carrying that sentence or judgment into execution if these reasons could leave any doubt that the word according to that doubt would be removed by the terms of an antecedent guarantee for the trial by jury granted by the Emperor Conrad of Germany 200 years before Magna Carta note this precedent from Germany is good authority because the trial by jury was in use in the northern nations of Europe generally long before Magna Carta from time immemorial and the Saxons and Normans were familiar with it before they settled in England end footnote Blackstone cites it as follows third Blackstone 350 Nemo beneficium Suum perdat Nesse se kundum con sueturnum ante se sorum nestorum et juditium pariam suorum that is no one shall lose his estate unless according to se kundum the custom or law of our ancestors and according to the sentence or judgment of his peers note beneficium was the legal name of an estate held by a feudal tenor seized Spalman's glossary end footnote the evidence is therefore conclusive that the phrase perjuditium pariam suorum means according to the sentence of his peers thus implying that the jury and not the government are to fix the sentence if any additional proof were wanted that juries were to fix the sentence it would be found in the following provisions of Magna Carta a freeman shall not be immersed for a small crime or a lecto but according to the degree of the crime and for a great crime in proportion to the magnitude of it saving to him is contentment and after the same manner or merchant saving to him is merchandise and of a lane shall be immersed after the same manner saving to him is wainage if he fall under our mercy and none of the aforesaid or assess punator but by the oath of honest men of the neighborhood girls and barons shall not be immersed but by their peers and according to the degree of their crime notes contentment of a freeman was the means of living in the condition of a freeman wainage was a valane's plow tackle and carts tamalan says the ancient practice was when any such fine was imposed to inquire by a jury quantum in the regi per annum salva sustentaciones sua et uxores et liber orum svorum how much is he able to give to the king per annum saving his own maintenance and that of his wife and children and since the disuse of such inquest it is never usual to assess the way without touching the implements of his livelihood but to inflict corporal punishment or a limited imprisonment instead of a fine is might amount to imprisonment for life and this is the reason why fines in the king's courts are frequently denominated ransoms because the penalty must otherwise fall upon a man's person end of footnotes pecuniary punishments were the most common punishments of that day and the foregoing provisions of Magna Carta show that the amount of these punishments was to be fixed by the jury fines went to the king and were a source of revenue and if the amounts of the fines had been left to be fixed by the king he would have had a pecuniary punishment so also in regard to other punishments then fines if it were left to the king to fix the punishment he might often have motives to inflict cruel and oppressive ones as it was the object of the trial by jury to protect the people against all possible oppression from the king it was necessary that the jury and not the king suppose that the king was obliged to carry the sentence into execution but only that he could not go beyond the sentence he might pardon or he might acquit on grounds of law notwithstanding the sentence but he could not punish beyond the extent of the sentence Magna Carta does not prescribe that the king shall punish according to the sentence of the peers but only that he shall not punish unless according to that sentence he may acquit or pardon notwithstanding their sentence or judgment but he cannot punish except according to their judgment end footnote legali the word legali in the phrase pair legali euditium parrim surum doubtless means two things that the sentence must be given in a legal manner that is by the legal number of jurors legally impaneled and sworn to try the cause and that they give their judgment or sentence after a legal trial both in form and substance has been had that the sentence shall be for a legal cause or offense if therefore a jury should convict and sentence a man either without giving him a legal trial or for an act that was not legally and legally criminal the sentence itself would not be legal and consequently this clause forbids the king to carry such a sentence into execution for the clause guarantees that he will execute no judgment or sentence except it be legali euditium a legal sentence whether a sentence be a legal one would have to be ascertained by the king or his judges to appeal or might be judged of informally by the king himself the word legali clearly did not mean that the euditium parriums worum judgment of his peers should be a sentence which any law of the king should require the peers to pronounce for in that case the sentence would not be the sentence of the peers but only the sentence of the law that is of the king in uttering it parilegem tere one other phrase remains to be explained vis parilegem tere by the law of the land all writers agree that this means the common law thus Sir Matthew Hale says the common law is sometimes called by way of eminence lex tere thus Sir Matthew Hale says the common law is sometimes called by way of eminence as in the statutes of Magna Carta chapter 29 where certainly the common law principally intended by those words out parilegem tere as appears by the exposition thereof in several subsequent statutes and particularly in the statute of 28 Edward III chapter 3 which is but an exposition and explanation of that statute sometimes it is called lex unglia as in the statute of Merton chapter 9 anomus legis unglia e matari etc we will that the laws of England be not changed sometimes it is called lex et quanzuetudin prene the law and custom of the kingdom as in all commissions of Euler and Terminar and in the statutes of 18 Edward III chapter 5 and De Quo Wanto and diverse others but most commonly it is called the common law or the common law of England as in the statute articule super cartos chapter 18 and in the statute 25 Edward III chapter 5 and infinite more records and statutes first Hale's history of the common law 128 or law of the land the king was sworn to maintain this fact is recognized by a statute made at Westminster in 1346 by Edward III which commences in this manner Edward by the grace of God et cetera et cetera to the sheriff of Stafford greeting because that by diverse complaints made to us we have perceived the law of the land which we by oath are bound to maintain et cetera statute 20 Edward III the foregoing authorities are cited to show to the unprofessional reader what is well known to the profession that legend the law of the land mentioned in Magna Carta was the common ancient fundamental law of the land which the kings observed and that it did not include any statutes or laws enacted by the king himself the legislative power of the nation if the term legendary had included laws enacted by the king himself the whole chapter of Magna Carta now under discussion would have amounted to nothing as a protection to liberty because it would have imposed no restraint whatever upon the power of the king and the laws at any time and such ones as he pleased he could therefore have done anything he pleased by the law of the land as well as in any other way if his own laws had been the law of the land if his own laws had been the law of the land within the meaning of that term as used in Magna Carta this chapter of Magna Carta would have been sheer nonsense as much as the whole purport of it would have been simply that no man shall be arrested imprisoned or deprived of his free hold or his liberties or free customs or outlawed or exiled or in any manner destroyed by the king nor shall the king proceed against him nor send anyone against him with force and arms unless by the judgment of his peers or unless the king shall please to do so Magna would therefore have imposed not the slightest restraint upon the power of the king or afforded the slightest protection to the liberties of the people if the laws of the king had been embraced in the term legim tere but if legim tere was the common law which the king was sworn to maintain then a real restriction was laid upon his power and a real guarantee given to the people for their liberties such then being the meaning of legim tere the fact is established that Magna Carta took an accused person entirely out of the hands of the legislative power that is of the king and placed him in the power and under the protection of his peers and the common law alone that in short Magna Carta suffered no man to be punished for violating any enactment of the legislative power unless the peers or equals of the accused freely consented to it or the common law authorized it that the legislative power of itself was wholly incompetent to require the conviction or punishment of a man for any offense whatever end of chapter 2 part 1