 Chapter 9 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 Bethanne. Trial by Jury by Lysander Spooner. Chapter 9. The Criminal Intent. It is a maxim of the common law that there can be no crime without a criminal intent. And it is a perfectly clear principle, although one which judges have in a great measure overthrown in practice, that jurors are to judge of the moral intent of an accused person and hold him guiltless, whatever his act, unless they find him to have acted with a criminal intent, that is, with a design to do what he knew to be criminal. This principle is clear because the question for a jury to determine is whether the accused be guilty or not guilty. Guilt is a personal quality of the actor not necessarily involved in the act, but depending also upon the intent or motive with which the act was done. Consequently, the jury must find that he acted from a criminal motive before they can declare him guilty. There is no moral justice in nor any political necessity for punishing a man for any act whatever that he may have committed if he have done it without any criminal intent. There can be no moral justice in punishing for such an act because there having been no criminal motive. There can have been no other motive which justice can take cognizance of as demanding or justifying punishment. There can be no political necessity for punishing to warn against similar acts in future because if one man have injured another, however unintentionally, he is liable and justly liable to a civil suit for damages. And in this suit he will be compelled to make compensation for the injury, notwithstanding his innocence of any intention to injure. He must bear the consequences of his own act instead of throwing them upon another, however innocent he may have been of any intention to do wrong. And the damages he will have to pay will be a sufficient warning to him not to do the like act again. If it be alleged that there are crimes against the public, as treason for example, or any other resistance to government for which private persons can recover no damages and that there is a political necessity for punishing such offenses, even though the party acted conscientiously, the answer is the government must bear with all resistance that is not so clearly wrong as to give evidence of criminal intent. In other words, the government in all its acts must keep itself so clearly within the limits of justice as that twelve men taken at random will agree that it is in the right or it must incur the risk of resistance without any power to punish. This is the mode in which the trial by jury operates to prevent the government from falling into the hands of a party or a faction and to keep it within such limits as all, or substantially all, the people are agreed that it may occupy. This necessity for a criminal intent to justify conviction is proved by the issue which the jury are to try and the verdict they are to pronounce. The issue they are to try is guilty or not guilty Those are the terms they are required to use in rendering their verdicts, but it is a plain falsehood to say that a man is guilty unless he have done an act which he knew to be criminal. This necessity for a criminal intent, in other words, for guilt as a preliminary to conviction, makes it impossible that a man can be rightfully convicted for an act that is intrinsically innocent, though forbidden by the government, because guilt is an intrinsic quality of actions and motives and not one that can be imparted to them by arbitrary legislation. All the efforts of the government, therefore, to make offenses by statute out of acts that are not criminal by nature must necessarily be ineffectual unless a jury will declare a man guilty for an act that is really innocent. The corruption of judges in their attempts to uphold the arbitrary authority of the government by procuring the conviction of individuals for acts innocent in themselves and forbidden only by some tyrannical statute and the commission of which, therefore, indicates no criminal intent is very apparent. To accomplish this object they have, in modern times, held it to be unnecessary that indictments should charge, as by the common law they were required to do, that an act was done wickedly, feloniously, with malice of forethought, or in any other manner that implied a criminal intent, without which there can be no criminality, but that it is sufficient to charge simply that it was done contrary to the form of the statute, in such case, made and provided. The form of indictment proceeds plainly upon the assumption that the government is absolute and that it has authority to prohibit any act it pleases, however innocent in its nature the act may be. Judges have been driven to the alternative of either sanctioning this new form of indictment, which they never had any constitutional right to sanction, or of seeing the authority of many of the statutes of the government fall to the ground, because the acts forbidden by the statutes were so plainly innocent in their nature that even the government itself had not the face to allege that the commission of them implied or indicated any criminal intent. To get rid of the necessity of showing a criminal intent and thereby further to enslave the people by reducing them to the necessity of a blind, unreasoning submission to the arbitrary will of the government and of a surrender of all right on their own part to judge what are their constitutional and natural rights and liberties, courts have invented another idea, which they have incorporated among the pretended maxims upon which they act in criminal trials, is that ignorance of the law excuses no one, as if it were in the nature of things possible that there could be an excuse more absolute and complete. What else than ignorance of the law is it that excuses judges themselves for all their erroneous decisions? Nothing. They are everyday committing errors, which would be crimes, but for their ignorance of the law, and yet these same judges who claim to be learned in the law and who yet could not hold their offices for a day, but for the allowance which the law makes for their ignorance are continually asserting it to be a maxim that ignorance of the law excuses no one, by which of course they really mean that it excuses no one but themselves, and especially that it excuses no unmoordered man who comes before them charged with a crime. This preposterous doctrine that ignorance of the law excuses no one is asserted by courts because it is an indispensable one to the maintenance of absolute power in the government. It is indispensable for this purpose because if it be once admitted that the people have any rights and liberties which the government cannot lawfully take from them, then the question arises in regard to every statute of the government whether it be law or not, that is whether it infringe or not the rights and liberties of the people. Of this question every man must of course judge according to the light in his own mind, and no man can be convicted unless the jury find not only that the statute is law that it does not infringe the rights and liberties of the people, but also that it was so clearly law so clearly consistent with the rights and liberties of the people as that the individual himself who transgressed it knew it to be so, and therefore had no moral excuse for transgressing it. Governments see that if ignorance of the law were allowed to excuse a man for any act whatever, it must excuse him for transgressing all statutes whatsoever, which he himself thinks inconsistent with his rights and liberties. But such a doctrine would of course be inconsistent with the maintenance of the arbitrary power by the government, and hence governments will not allow the plea although they will not confess their true reasons for disallowing it. The only reasons, if they deserve the name of reasons, that I ever knew given for the doctrine that ignorance of the law excuses no one are these. First, the reason for the maximum is that of necessity, it prevails, not that all men know the law, but because it is an excuse which every man will make, and no man can tell how to confute him. Selden, as quoted in the second edition of Starkey on Slander, preliminary discourse, page 140, note. Law magazine, London, volume 27, page 97. This reason impliedly admits that ignorance of the law is, intrinsically, an ample and sufficient excuse for a crime, and that the excuse ought to be allowed if the fact of ignorance could be ascertained. But it asserts that this fact is incapable of being ascertained, and that therefore there is a necessity for punishing the ignorant and the knowing, that is, the innocent and the guilty, without discrimination. This reason is worthy of the doctrine it is used to uphold, as if a plea of ignorance any more than any other plea must necessarily be believed simply because it is urged, and as if it were not a common and everyday practice of the courts and juries in both civil and criminal cases to determine the mental capacity of individuals, as, for example, to determine whether they are of sufficient mental capacity to make reasonable contracts, whether they are lunatic, whether they are compotes, mentis, of sound mind and memory, etc., etc. And there is obviously no more difficulty in a jury's determining whether an accused person knew the law in a criminal case than there is in determining any of these other questions that are continually determined in regard to a man's mental capacity. For the question to be settled by the jury is not whether the accused person knew the particular penalty attached to his act. For at common law no one knew what penalty a jury would attach to an offense, but whether he knew that his act was intrinsically criminal. If it were intrinsically criminal, it was criminal at common law. If it was not intrinsically criminal, it was not criminal at common law. At least, such was the general principle of the common law. There may have been exceptions in practice owing to the fact that the opinions of men as to what was intrinsically criminal may not have been in all cases correct. A jury. A jury then, in judging whether an accused person knew his act to be illegal, were bound first to use their own judgments as to whether the act were intrinsically criminal. If their own judgments told them the act was intrinsically and clearly criminal, they would naturally and reasonably infer that the accused person also understood that it was intrinsically criminal and consequently illegal unless it should appear that he was either below themselves on the scale of intellect or had had less opportunities of knowing what acts were criminal. In short, they would judge and from any and every means they might have of judging and if they had any reasonable doubt that he knew his act to be criminal in itself, they would be bound to acquit him. The second reason that has been offered for the doctrine that ignorance of the law excuses no one is this. Ignorance of the municipal law of the kingdom or the penalty thereby inflicted on offenders does not excuse any that is of the age of discretion uncomposmentus from the penalty of the breach of it because every person of the age of discretion uncomposmentus is bound to know the law and presumed to do so. Ignorancia e orum quae quis schiae tonetor non excusat Ignorance of those things which everyone is bound to know does not excuse. First Tales, Plays of the Crown, 42 Doctor and Student, Dialogue 2, Chapter 46 Law Magazine, London, Vol. 26, Page 97 The sum of this reason is that ignorance of the law excuses no one who is of the age of discretion and is compostmentus because every such person is bound to know the law but this is giving no reason at all for the doctrine since saying that a man is bound to know the law is only saying in another form that ignorance of the law does not excuse him. There is no difference at all in the two ideas to say therefore that ignorance of the law excuses no one because everyone is bound to know the law is only equivalent to saying that ignorance of the law excuses no one because ignorance of the law excuses no one. It is merely reasserting the doctrine without giving any reason at all. And yet these reasons which are really no reasons at all are the only ones so far as I know that have ever been offered for this absurd and brutal doctrine. The idea is suggested that the age of discretion determines the guilt of a person that there is a particular age prior to which all persons alike should be held incapable of knowing any crime and subsequent to which all persons alike should be held capable of knowing all crimes is another of this most ridiculous nest of ideas. All mankind acquire their knowledge of crimes as they do of other things gradually. Some they learn at an early age, others not till a later one. One individual acquires a knowledge of crimes as he does of arithmetic at an earlier age than others do and to apply this same presumption to all on the ground of age alone is not only gross injustice but gross folly. A universal presumption might with nearly or quite as much reason be founded upon weight or height as upon age. Note, this presumption founded upon age alone is as absurd and civil matters as in criminal. What can be more entirely ludicrous than the idea that all men not manifestly imbecile become mentally competent to make all contracts whatsoever on the day they become 21 years of age and that previous to that day no man becomes competent to make any contract whatever except for the present supply of the most obvious ones of nature. In reason, a man's legal competency to make binding contracts in any and every case whatever depends wholly upon his mental capacity to make reasonable contracts in each particular case. It of course requires more capacity to make a reasonable contract in some cases than in others. It requires, for example, more capacity to make a reasonable contract in the purchase of a large estate than in the purchase of a pair of shoes. But the mental capacity to make a reasonable contract in any particular case is, in reason, the only legal criterion of the legal competency to make a binding contract in that case. The age, whether more or less than 21 years, is of no legal consequence whatever except that it is entitled to some consideration as evidence of capacity. It may be mentioned in this connection that the rules that prevail that every man is entitled to freedom from parental authority at 21 years of age and no one before that age are of the same class of absurdities with those that have been mentioned. The only ground on which a parent is ever entitled to exercise authority over his child is that the child is incapable of taking reasonable care of himself. The child would be entitled to his freedom from his birth if he were, at that time, capable of taking reasonable care of himself. Some become capable of taking care of themselves at an earlier age than others and whenever anyone becomes capable of taking reasonable care of himself and not until then he is entitled to his freedom, be his age more or less. These principles would prevail under the true trial by jury, the jury being the judges of the capacity of every individual whose capacity should be called into question. End footnote. This doctrine that ignorance of the law excuses no one is constantly repeated in the form that everyone is bound to know the law. The doctrine is true in civil matters, especially in contracts so far as this, that no man who has the ordinary capacity to make reasonable contracts can escape the consequences of his own agreement on the ground that he did not know the law applicable to it. When a man makes a contract, he gives the other party rights and he must of necessity judge for himself and take his own risk as to what those rights are. Otherwise the contract would not be binding and men could not make contracts that would convey rights to each other. Besides, the capacity to make reasonable contracts implies and includes a capacity to form a reasonable judgment as to the law applicable to them. But in criminal matters where the question is one of punishment or not, where no second party has acquired any right to have the crime punished unless it were committed with criminal intent but only to have it compensated for by damages in a civil suit and when the criminal intent is the only moral justification for the punishment, the principle does not apply and a man is bound to know the law only as well as he reasonably may. The criminal law requires neither impossibilities nor extraordinary of anyone. It requires only thoughtfulness and a good conscience. It requires only that a man fairly improperly use the judgment he possesses and the means he has of learning his duty. It requires of him only the same care to know his duty in regard to the law that he is morally bound to use in other matters of equal importance and this care it does require of him. Any ignorance of the law therefore that is unnecessary or that arises from indifference or disregard of one's duty is no excuse. An accused person therefore may be rightfully held responsible for such a knowledge of the law that is common to men in general having no greater natural capacities than himself and no greater opportunities for learning the law and he can rightfully be held to no greater knowledge of the law than this. To hold him responsible for a greater knowledge of the law than is common to mankind when other things are equal would be gross injustice and cruelty. The massive mankind can give full of their attention to acquiring a knowledge of the law. Their other duties in life forbid it. Of course, they cannot investigate of truths or difficult questions. All that can rightfully be required of each of them then is that he exercised such a candid and conscientious judgment as it is common for mankind generally to exercise in such matters. If he have done this it would be monstrous to punish him criminally for his errors. Errors not of conscience but only of judgment. It would also be contrary to the first principles of a free government that is a government formed by voluntary association to punish men in such cases 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 crimes. But a man may reasonably unite with his fellow men to maintain a government to punish those acts which he himself considers criminal and may reasonably acquiesce to his own liability to be punished for such acts. As those are the only grounds on which anyone can be supposed to render any voluntary support to a government it follows that a government formed by voluntary association and of course having no powers except such as all the associates have consented that it may have can have no power to punish a man for acts which he did not himself know to be criminal. The safety of society which is the only object of the criminal law requires only that those acts which are understood by mankind at large to be intrinsically criminal should be punished as crimes. The remaining few if there are any may safely be left to go unpunished. Nor does the safety of society require that any individuals other than those who have sufficient mental capacity to understand that their acts are criminal should be criminally punished. All others may safely be left to their liability under the civil law to compensate for their unintentional wrongs. The only real object of this absurd and atrocious doctrine that ignorance of the law that is of crime excuses no one and that everyone is bound to know the criminal law that is bound to know what is a crime is to maintain an entirely arbitrary authority on the part of the government and to deny to the people all right to judge for themselves what their own rights and liberties are. In other words 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 liberties and thus to reduce the people to the condition of mere slaves to a despotic power such as the people themselves would never have voluntarily established and the justice of whose laws the people themselves cannot understand. Under the true trial by Jerry all tyranny of this kind would be abolished a jury would not only judge what acts were really criminal but they would judge of the mental capacity of an accused person and of his opportunities for understanding the true character of his conduct. In short they would judge of his moral intent from all the circumstances of the case and acquit him if they had any reasonable doubt that he knew that he was committing a crime. Note In contrast to the doctrines of the text it may be proper to present more distinctly the doctrines that are maintained by judges and that prevail in courts of justice. Of course no judge either the present day or perhaps within the last 500 years has admitted the right to a jury to judge of the justice of a law or to hold any law invalid for its injustice. Every judge asserts the power of the government to punish for acts that are intrinsically innocent and which therefore involve or invents no criminal intent. To accommodate the administration of law to this principle all judges so far as I am aware hold it to be unnecessary that an indictment should charge or that a jury should find that an act was done with a criminal intent except in those cases where the act is malum in se criminal in itself. In all other cases so far as I am aware they hold it sufficient that the indictment charge and consequently that the jury find simply that the act was done contrary to the form of the statute in such case made and provided in other words contrary to the orders of the government. All these doctrines prevail universally among judges and are I think uniformly practiced upon in courts of justice and they plainly involve the most absolute despotism on the part of the government. But there is still another doctrine that extensively and perhaps most generally prevails in practice although judges are not agreed in regard to its soundness. It is this that it is not even necessary that the jury should see or know for themselves what the law is that is charged to have been violated nor to see or know for themselves that the act charged was in violation of any law whatever but that it is sufficient that they be simply told by the judge that any act whatever charged in an indictment is in violation of law and that they are then bound blindly to receive the declaration as true and convict a man accordingly if they find that he has done the act charged. This doctrine is adopted by many among the most imminent judges and the reasons for it are thus by the Lord Mansfield. They, the jury, do not know and are not presumed to know the law. They are not sworn to decide the law. Note this declaration of Mansfield that the juries in England are not sworn to decide the law in criminal cases is a plain falsehood. They are sworn to try the whole case at issue between the king and the prisoner and that includes the law and the act. See jurors oath page 86 and note with a note they are not required to do it the jury ought not to assume the jurisdiction of law they do not know and are not presumed to know anything of the matter they do not understand the language in which it is conceived or the meaning of the terms they have no rule to go by is third term rep 428 note what is this but saying that the people who are supposed to be represented in juries and who institute and support the government of course for the protection of their own rights and liberties as they understand them for plainly no other motive can be attributed to them are really the slaves of a despotic power whose arbitrary commands are imposed competent to understand but for the transgressions of which they are nevertheless to be punished as criminals this is plainly the sum of the doctrine because the jury are the peers equals of the accused and are therefore supposed to know the law as well as he does and as well as it is known by the people at large if they the jury are not presumed to know the law neither the accused nor the people at large can be presumed to know it hence it follows that one principle of the true trial by jury is that no accused person shall be held responsible for any other or greater knowledge of the law than is common to his political equals who will generally be men of nearly similar condition in life but the doctrine of Mansfeld is that the body of the people from whom jurors are taken are responsible to a law which it is agreed they cannot understand what is this despotism and not merely despotism but insult and oppression of the intensest kind this doctrine of Mansfeld is the doctrine of all who deny the right of juries to judge of the law although all may not choose to express it in so blunt and unambiguous terms but the doctrine evidently admits of no other interpretation or defense end footnote end of chapter 9 chapter 10 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 Ann trial by jury by Lysander Spooner chapter 10 moral considerations for jurors the trial by jury must, if possible be construed to be such that a man can rightfully sit in a jury and unite with his fellows in giving judgment but no man can rightfully do this unless he holds in his own hand alone a veto upon any judgment or sentence whatever to be rendered by the jury against a defendant which veto he must be permitted to use according to his own discretion and conscience and not bound to use according to the dictation of either legislatures or judges the prevalent idea that a juror may at the mere dictation of a legislature or judge and without the concurrence of his own conscience or understanding declare a man guilty and thus in effect license the government to punish him and that the legislature or the judge in not himself has in that case all the moral responsibility for the correctness of the principles on which the judgment was rendered is one of the many gross imposters by which it could hardly have been supposed that any sane man could ever have been deluded but which governments have nevertheless succeeded in inducing the people at large to receive and act upon as a moral proposition it is perfectly self evident that unless juries have all the legal rights that have been claimed for them in the preceding chapters that is the rights of judging what the law is whether the law be a just one what evidence is admissible and what way the evidence is entitled to whether an act were done with a criminal intent and the right also to limit the sentence free of all dictation from any quarter they have no moral right to sit on the trial at all and cannot do so without making themselves accomplices in any injustice and have reason to believe may result from their verdict it is absurd to say that they have no moral responsibility for the use that may be made of their verdict by the government when they have reason to suppose it will be used for purposes of injustice it is for instance manifestly absurd to say that jurors have no moral responsibility for the enforcement of an unjust law to consent to render a verdict of guilty for the transgression of it which verdict they know or have good reason to believe will be used by the government as a justification for inflicting a penalty it is absurd also to say that jurors have no moral responsibility for a punishment inflicted upon a man against law when at the dictation of a judge as to what the law is they have consented to render a verdict against their own opinions of the law it is absurd too to say that jurors have no moral responsibility for the conviction and punishment of an innocent man when they consent to render a verdict against him on the strength of evidence or laws of evidence dictated to them by the court if any evidence or laws of evidence have been excluded which they the jurors have been admitted in his defense it is absurd to say that jurors have no moral responsibility for rendering a verdict of guilty against a man for an act which he did not know to be a crime and in the commission of which therefore he could have had no criminal intent in obedience to the instructions of courts that ignorance of the law that is, of crime excuses no one it is absurd also, to say that jurors have no moral responsibility for any cruel or unreasonable sentence that may be inflicted even upon a guilty man when they consent to render a verdict which they have reason to believe will be used by the government as a justification for the inflection of such sentence the consequence is that jurors must have the whole case in their hands and judge of law, evidence and sentence where 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 verdict the same principles apply to civil cases as to criminal if a jury consent at the dictation of the court as to either law or evidence to render a verdict on the strength of which they have reason to believe that a man's property will be taken from him and given to another against their own notions of justice they make themselves morally responsible for the wrong every man, therefore ought to refuse to sit in a jury and to take the oath of a juror unless the form of the oath be such as to allow him to use his own judgment on every part of the case free of all dictation whatsoever and to hold in his own hand a veto upon any verdict that can be rendered against the defendant and any sentence that can be inflicted upon him even if he be guilty of course no man can rightfully take an oath as juror to try a case according to law if by law be meant anything other than his own ideas of justice nor according to the law and the evidence as they shall be given him nor can he rightfully take an oath even to try a case according to the evidence 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 received the only oath which it would seem that a man can rightfully take as a juror in either a civil or criminal case is that he will try the case according to his conscience of course the form may admit a variation but this should be the substance such we have seen were the ancient common law oaths end of chapter 10 chapter 11 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 Bethann trial by jury by Lysander Spooner chapter 11 authority of Magna Carta probably no political compact between king and people was ever entered into in a manner to settle more authoritatively the fundamental law of the nation then was Magna Carta probably no people were ever more united and resolute in demanding from their king a definite and unambiguous acknowledgement of their rights and liberties then were the English at that time probably no king was ever more completely stripped of all power to maintain his throne and at the same time resist the demands of his people then was John on the 15th day of June 1215 probably no king ever consented more deliberately or explicitly to hold his throne subject to specific and enumerated limitations upon his power then did John when he put his seal to the great charter of the liberties of England and if any political compact between king and people was ever valid to settle the liberties of the people or to limit the power of the crown that compact is now to be found in Magna Carta therefore the constitutional authority of Magna Carta had rested solely upon the compact of John with his people that authority would have been entitled to stand forever as the supreme law of the land unless revoked by the will of the people themselves but the authority of Magna Carta does not rest alone upon the compact with John when in the next year 1216 his son Henry III came to the throne the charter was ratified by him and again in 1217 and again in 1225 in substantially the same form and especially without allowing any new powers legislative, judicial or executive to the king or his judges and without detracting in the least from the powers of the jury and from the latter date to this the charter has remained unchanged in the course of 200 years the charter was confirmed by Henry and his successors more than 30 times and although they were guilty of numerous and almost continual breaches of it and were constantly seeking to evade it yet such were the spirit diligence and courage of the nation that the kings held their thrones only on the condition of their renewed and solemn promises of observance and it was not until 1429 as will be more fully shown hereafter when a truce between themselves and a formal combination against the mass of the people had been entered into by the king the nobility and the forty shilling freeholders a class whom Macintosh designates as a few freeholders than accounted wealthy Macintosh's history of England Chapter 3 45 Lardner's Cabinet Cyclopedia 354 by the exclusion of all others such freeholders from all voice in the election of knights to represent the counties in the House of Commons that a repetition of these confirmations of Magna Carta ceased to be demanded and obtained Note 40 shilling freeholders were those people dwelling and resident in the same counties where of every one of them shall have free land or tenement to the value of 40 shillings by the year at the least above by Statute 8 Henry VI Chapter 7 1429 these freeholders only were allowed to vote for members of parliament from the counties End footnote the terms and the formalities of some of these confirmations makes them worthy of insertion and length Hume thus describes one which took place in the 38th year of Henry III but as they the barons had experienced his, the king's frequent breach of promise they required that he should ratify the great charter in a matter still more authentic and solemn than any which he had hitherto employed all the prelates and abbots were assembled they held burning tapers in their hands the great charter was read before them they denounced the sentence the next communication against everyone who should henceforth violate that fundamental law they threw their tapers on the ground and exclaimed may this soul of everyone who incurs this sentence so stink and corrupt in hell the king bore a part in this ceremony and subjoined so help me God I will keep all these articles in violet as I am a man as I am a Christian as I am a knight and anointed Hume, Chapter 12 see also Blackstone's introduction to the charters, Blackstone's law tracts, Oxford edition page 332 Macintosh's History of England, Chapter 3 Lardner's Cabinet Cyclopedia Volume 45 page 233-4 the following is the form of the sentence of excommunication referred to by Hume the sentence of curse given by the bishops against the breakers of the charters the year of our lord, 1253 the third day of May in the great hall of the king at Westminster in the presence and by the ascent of the lord Henry by the grace of God king of England and the lord's Richard Earl of Cornwall, his brother Roger, Biggett Earl of Norfolk and Suffolk Marshall of England, Humphrey Henry, Earl of Oxford John, Earl of Warwick and other estates of the realm of England we, Boniface by the mercy of God Archbishop of Canterbury primate of all England F of London, H of Eli S of Worcester E of Lincoln W of Norwich P of Hurford W of Salisbury W of Durham W of Bath E of Rochester T of St. David's bishops, appareled in pontificals with tapers burning against the breakers of the church's liberties and the liberties of free customs of the realm of England and especially of those which are containing the charter of the common liberties of the realm and the charter of the forest have solemnly denounced the sentence of excommunication in this form by the authority of Almighty God the Father, the Son and the Holy Ghost and of the glorious Mother of God and perpetual Virgin Mary of the Blessed Apostles Peter and Paul and of all apostles of the Blessed Thomas Archbishop and Martyr and of all martyrs of Blessed Edward of England and of all confessors and virgins and of all the saints of Heaven we excommunicate a curse and from the threshold Limnibus of our Holy Mother the Church we squester all those that hereafter willingly and maliciously deprive or spoil the church of her right and all those that by any craft or willingness do violate break, diminish or change the church's liberties or the ancient approved customs of the realm and especially the liberties and free customs contained in the charters of the common liberties and of the forest conceded by our Lord the King to archbishops, bishops and other prelates of England and likewise to the earls barons, knights and other freeholders of the realm and all that secretly or openly by deed, word or council do make statutes or observe them being made and that bring in customs or keep them when they be brought in against the said liberties or any of them writers and counsellors of said statutes and the executors of them and all those that shall presume to judge according to them all and every which persons before mentioned that willingly shall commit anything of the premises let them well know that they incur the aforesaid sentence ipso facto i.e. upon the deed being done and those that ignorantly do so mean and admonished except they reform themselves within fifteen days after the time of the admonition and make full sentence action for that they have done at the will of the ordinary shall be from that time forth included in the same sentence and with the same sentence we burden all those that presume to perturb the peace of our sovereign Lord the King and of the realm to the perpetual memory of which thing the aforesaid prelates have put our seals to these presence statutes of the realm vol 1 page 6 rough head statutes vol 1 page 20 one of the confirmations of the charters by edward the first was by statute in the 25th year of his reign 1297 in the following terms the statute is usually entitled conformatio cattorum confirmation of the charters chapter 1 edward by the grace of God King of England, Lord of Ireland and Duke of Ganyan to all those that these presence shall hear or see, greeting no ye that we to the honor of God and of holy church and to the prophet of our realm have granted for us in our heirs that the charter of liberties and the charter of the forest and by common assent of all the realm in the time of King Henry our father shall be kept in every point without breach and we will that the same charters shall be sent under our seal as well to our justices of the forest and to all sheriffs of shires and to all our other officers and to all our cities throughout the realm together with our writs in the which shall be contained that they shall cause the foresaid charters to be published and to declare to the people that we have confirmed them at all points and to our justices, sheriffs mayors and other ministers which under us have the laws of our land to guide that they allow the same charters in all their points in pleas before them and in judgment that is to wit the great charter as the common law and the charter of the forest in the realm and we will that if any judgment be given from henceforth contrary to the points of the charters of foresaid by the justices or by any others our ministers that hold plea before them against the points of the charters it shall be undone and holden for naught and we will that the same charters shall be sent under our seal to cathedral churches throughout our realm there to remain and shall be read before the people two times in the year Chapter 4 and that all archbishops and bishops shall pronounce the sentence of excommunication against all those that by word, deed, or council do contrary to the foresaid charters or that in any point break or undo them and that the said curses be twice a year denounced and published by the prelates of foresaid and that the same prelates or any of them be remiss the renunciation of the said sentences the archbishops of canterbury and york for the time being shall compel and distrain them to make the denunciation in the form of foresaid Statute 23 Edward I 1297 Statutes of the realm, volume 1 page 123 it is unnecessary to repeat the terms of the various confirmations most of which were less formal than those that have been given though of course equally authoritative most of them are brief and in the form of a simple statute or promise to the effect that the great charter and the charter of the forest shall be firmly kept and maintained in all points they are to be found printed with the other statutes of the realm one of them after having again granted renewed and confirmed the charters requires as follows that the charters be delivered to every sheriff of england under the king's seal to be read four times in the year before the people in the full county that is at the county court that is to wit the next county court after the feast of saint michael and the next county court after christmas and at the next county court after easter and at the next county court after the feast of saint john 28 Edward I 1300 lingard says the charter was ratified four times by henry the third twice by edward the first fifteen times by edward the third seven times by richard the second six times by henry the fourth and once by henry the fifth making thirty five times in all third lingard fifty note philadelphia edition coke says magna carta was confirmed thirty two times preface to second institutes page six lingard calls these thirty five successive ratifications of the charter a sufficient proof how much its provisions were abhorred by the sovereign and how highly they were prized by the nation third lingard fifty macintosh says for almost five centuries that is until sixteen eighty eight it, magna carta was appealed to as the decisive authority on behalf of the people though commonly so far only as the necessities of each case demanded macintosh's history of england chapter three forty five loudner's cabinet cyclopedia two two one coke who has labored so hard to overthrow the most vital principles of magna carta and who therefore ought to be considered good authority when he speaks in its favor says note he probably speaks in its favor only to blind the eyes of the people to the frauds he has attempted upon its true meaning in footnote it is called magna carta not that it is great in quantity for there be many voluminous charters commonly passed specially in these latter times longer than this is nor comparatively in respect that it is greater than carta de foresta but in respect of the great importance and weightiness of the matter as hereafter shall appear and likewise for the same cause carta de foresta and both of them are called magna carta libertatium angliae the great charters the liberties of england and it is also called carta libertatium redney charter the liberties of the kingdom and upon great reason it is so called of the effect quia liberos quia liberos facet because it makes men free sometimes for the same cause it is called communes libertatas common liberty and the charter franchises it was for the most part declaratory of the principal grounds of the fundamental laws of england and for the residue it is additional to supply some defects of the common law also by the set act of 25 edward the first called conformatio cartorum it is a judged empowerment that the great charter and the charter of the forest shall be taken as the common law they, magna carta and carta de foresta were for the most part but declarations of the ancient common laws of england to the observation and keeping whereof the king was bound and sworn after the making of magna carta and carta de foresta diverse learned men in the laws that i may use the words of the record kept schools of the law in the city of london and taught that disresorted to them the laws of the realm taking their foundation of magna carta and carta de foresta and the said two charters have been confirmed established and commanded to be put in execution by 32 several acts of parliament in all this appears partly by that which has been said for that it has so often been confirmed by the wise providence of so many acts of parliament and albeit judgments in the king's court are of high regard in law and euditia judgments are accounted as euristicta the speech of the law itself yet it is provided by act of parliament that if any judgment be given contrary to any of the points of the great charter and carta de foresta by the justices or by any other of the king's ministers etc. it shall be undone and holden for naught and that both the said charters shall be sent under the great seal to all cathedral churches throughout the realm there to remain and shall be read to the people twice every year the highest and most binding laws are the statutes which are established by parliament and by authority of that highest court it is enacted only to show their tender care of magnacarta and carta de foresta that if any statute be made contrary to the great charter or the charter of the forest that shall be holden for none by which words all former statutes made against either of those charters are now repealed and the nobles and great officers were to be sworn to the observation of magnacarta and carta de foresta magna fort condom magnae reverencia carta great was formally the reverence for magnacarta coke's poem to second institutes page 1 to 7 coke also says all pretense a prerogative against magnacarta is taken away second institutes 36 he also says that after this parliament 52 Henry III in 1267 neither magnacarta nor carta de foresta was ever attempted to be impugned or questioned second institutes 102 note it will be noticed that coke calls these confirmations of the charter acts of parliament instead of acts of the king alone this needs explanation it was one of coke's ridiculous pretenses that laws anciently enacted by the king at the request or with the consent or by the advice of his parliament was an act of parliament instead of an act of the king and in the extract cited he carries this idea so far as to pretend that the various confirmations of the great charter were acts of parliament instead of the acts of the kings he might as well have pretended that the original grant of the charter was an act of parliament because it was not only granted at the request and with the consent and by the advice but on the compulsion even of those who commonly constituted his parliaments yet this did not make the grant of the charter an act of parliament it was simply an act of the king the object of coke in this pretence was to furnish some color for the palpable falsehood of the legislative authority which parliament was trying to assume in his own day and which it finally succeeded in obtaining had a precedent in the ancient constitution of the kingdom there would be as much reason in saying that because the ancient kings were in the habit of passing laws and special answer to the petitions of their subjects therefore those petitioners were part of the legislative power of the kingdom and the argument of coke for the legislative authority of the ancient parliaments is that a very large probably much the larger number of legislative acts were done without the advice consent, request or even presence of a parliament not only were many formal statutes passed without any mention of the consent or advice of parliament but a simple order of the king and council or a simple proclamation or letter under seal issued by his command had the same force as what coke calls an act of parliament and this practice continued to a considerable extent at least down to coke's own time the kings were always in the habit of consulting their parliaments more or less in regard to matters of legislation not because their consent was constitutionally necessary but in order to make influence in favor of their laws and thus induce the people to observe them and the juries to enforce them the general duties of ancient parliaments were not legislative but judicial as will be shown more fully hereafter the people were not representing the parliaments at the time of Magna Carta but only the archbishops, bishops urls, barons and knights so that little or nothing would have been gained for liberty by coke's idea that parliament had a legislative power he would only have substituted an aristocracy for a king even after the commons were representing parliament they for some centuries appeared only as petitioners except in the matter of taxation when their consent was asked and almost the only source of their influence on legislation was this that they would sometimes refuse their consent to the taxation unless the king would pass such laws as they petitioned for or as would seem to have been much more frequently the case unless he would abolish such laws and practices as they remonstrated against the influence or power of parliament especially of the commons in the general legislation of the country was a thing of slow growth having its origin in a device of the king to get money contrary to law as will be seen in the next volume and not at all a part of the constitution of the kingdom nor having its foundation in the consent of the people the power as at present exercise was not fully established until 1688 near 500 years after Magna Carta when the house of commons falsely so called had acquired such influence as the representative not of the people but of the wealth of the nation that they compelled the king to discard the oath fixed by the constitution of the kingdom which oath has already been given in a former chapter c page 101 and was in substance to preserve and execute the common law the law of the land or in the words of the oath the just laws and customs which the common people had chosen and to swear that he would govern the people of this kingdom of England means thereto belonging according to the statutes in parliament agreed on and the laws and customs of the same note with a note statute 1 William and Mary chapter 6 1688 and note the passage and enforcement of this statute and the assumption of this oath by the king were plain violations of the English constitution in as much as they abolished so far as such an oath could abolish the legislative power of the king and also those just laws and customs which the common people through their juries had chosen and substituted the will of parliament in their stead Koch was a great advocate for the legislative power of parliament as a means of restraining the power of the king as he denied all power to juries to decide upon the obligation of laws and as he held that the legislative power was so transcendent and absolute as that it cannot be confined either for causes or persons within any bounds fourth institutes 36 he was perhaps honest in holding that it was safer to trust this terrific power in the hands of parliament than in the hands of the king his error consisted in holding that either the king or parliament had any such power or that they had any power at all to pass laws that should be binding upon a jury these declarations of Koch that the charter was confirmed by 32 acts of parliament have a mischievous bearing in another respect they tend to weaken the authority of the charter by conveying the impression that the charter itself might be abolished by act of parliament Koch himself admits that it could not be revoked by the king for he says all pretense of prerogative against Magna Carta is taken away second institutes 36 he knew perfectly well and the whole English nation knew that the king could not lawfully infringe Magna Carta Magna Carta therefore made it impossible that absolute power could ever be practically established in England in the hands of the king hence as Koch was an advocate for absolute power that is, for a legislative power so transcendent and absolute as that it cannot be confined either for causes or persons within any bounds there was no alternative for him but to vest this absolute power in parliament had he not vested it in parliament he would have been obliged to abjure it all together and to confess that the people through their juries had the right to judge the obligation of all legislation whatsoever in other words that they had the right to confine the government within the limits of those just laws and customs which the common people acting as jurors had chosen Truge's instincts as a judge and as a tyrant he assumed that this absolute power was vested in the hands of parliament but the truth was that as by the English constitution parliament had no authority at all for general legislation it could no more confirm than it could abolish Magna Carta these 32 conformations of Magna Carta which Koch speaks of as acts of parliament were merely acts of the king the parliaments, indeed by refusing to grant him money except on that condition and otherwise had contributed to oblige him to make the conformations just as they had helped oblige him by arms to grant the charter in the first place but the conformations themselves were nevertheless constitutionally as well as formally the acts of the king alone to give all the evidence of the authority of Magna Carta it would be necessary to give the constitutional history of England since the year 1215 this history would show that Magna Carta although continually violated and evaded was still acknowledged as law by the government and was held up by the people as the great standard and proof of their rights and liberties it would show also that the judicial tribunals whenever it suited their purposes to do so were in the habit of referring to Magna Carta as authority in the same manner and with the same real or pretended veneration with which American courts now refer to the constitution of the United States or the constitutions of the states and what is equally to the point it would show that these same tribunals the mere tools of kings and parliaments would resort to the same artifices of assumption precedent construction and false interpretation to evade the requirements of Magna Carta and to emasculate it of all its power for the preservation of liberty that are resorted to by American courts to accomplish the same work on our American constitutions I take it for granted therefore that if the authority of Magna Carta had rested simply upon its character as a compact between the king and the people it would have been forever binding upon the king that is upon the government for the king was the government in his legislative, judicial and executive character and that there was no constitutional possibility of his escaping from its restraints unless the people themselves should freely discharge him from them but the authority of Magna Carta does not rest either wholly or mainly upon its character as a compact for centuries before the Charter was granted its main principles constituted the law of the land the fundamental and constitutional law of the realm which the kings were sworn to maintain and the principle benefit of the Charter was that it contained a written description and acknowledgement by the king himself of what the constitutional law of the kingdom was which his coronation oath bound him to observe previous to Magna Carta this constitutional law rested mainly in precedence customs and the memories of the people and if the king could but make one innovation upon this law without arousing resistance and being compelled to retreat from his usurpation he would cite that innovation as a precedent for another act of the same kind next assert a custom and finally raise a controversy as to what the law of the land really was the great object of the barons and people in demanding from the king a written description and acknowledgement of the law of the land was to put an end to all disputes of this kind and to put it out of the power of the king to plead any misunderstanding of the constitutional law of the kingdom and the charter no doubt accomplished very much in this way after Magna Carta it required much more audacity cunning or strength on the part of the king than it had before to invade the people's liberties with impunity still Magna Carta like all other written constitutions proved inadequate to the full accomplishment of its purpose to empower adequately to restrain a government that had either cunning to evade its requirements or strength to overcome those who attempted its defense the work of usurpation therefore though seriously checked still went on to a great extent after Magna Carta innovations upon the law of the land are still made by the government one innovation was cited as a precedent precedence made customs and customs became laws so far as practice was concerned until the government composed of the king the high functionaries of the church the nobility a house of commons representing the 40 shilling free holders and a dependent and servile judiciary all acting in conspiracy against the mass of the people became practically absolute as it is at this day as proved that Magna Carta embraced little else and previously recognized as the common law or law of the land I repeat some authorities that have been already cited Crab says it is admitted on all hands that it, Magna Carta contains nothing but what was confirmatory of the common law and the ancient usages of the realm and is, properly speaking only an enlargement of the charter of Henry I and his successors in Crab's history of English law page 127 Blackstone says it is agreed by all our historians that the great charter of King John was, for the most part compiled from the ancient customs of the realm or the laws of Edward the Confessor by which they mean the old common law which was established under our sacks and princes Blackstone's introduction to the charters see Blackstone's law tracts Oxford edition page 289 Koch says the common law is the most general and ancient law of the realm the common law appeared in the statute of Magna Carta and other ancient statutes which, for the most part are affirmations of the common law in the original rites in judicial records and in our books of terms and years 1st institutes 115 B Koch also says it, Magna Carta was, for the most part declaratory of the principal grounds of the fundamental laws of England and for the residue it was additional to supply some defects in the common law they, Magna Carta and Carta de Forreste were, for the most part but declarations of the ancient common laws of England to the observation and keeping of the king was bound and sworn preference to 2nd institutes pages 3 and 5 Hume says we may now, from the tenor of this charter Magna Carta, conjecture what those laws were of King Edward the Confessor, which the English nation during so many generations still desired with such an obstinate perseverance to have recalled and established they were chiefly these lighter articles of Magna Carta and the barons who, at the beginning of these commotions demanded the revival of the Saxon laws undoubtedly thought that they had sufficiently satisfied the people by procuring them this concession which comprehended the principal objects to which they had so long aspired Hume, Chapter 11 Edward I confessed that the great charter was substantially identical with the common law as far as it went when he commanded his justices to allow the great charter as the common law in pleas before them and in judgment as has already been cited in this chapter 25 Edward I Chapter 1 1297 in conclusion of this chapter it may be safely asserted that the veneration, attachment and pride which the English nation for more than six centuries have felt towards Magna Carta are in their nature among the most irrefutable of all proofs that it was the fundamental law of the land and constitutionally binding upon the government for otherwise it would have been in their eyes an unimportant and worthless thing what those sentiments were I will use the words of others to describe the words too of men who, like all modern authors who have written on the same topic the utterly inadequate ideas of the true character of the instrument on which they lavish their eulogims Hume, speaking of the great charter and the charter of the forest as they were confirmed by Henry III in 1217 says Thus these famous charters were brought nearly to the shape in which they have ever since stood and they were, during many generations the peculiar favorites of the English nation and esteemed the most sacred rampart of national liberty and independence as they secured the rights of all orders of men they were anxiously defended by all and became the basis in a manner of the English monarchy and a kind of original contract which both limited the authority of the king and ensured the conditional allegiance of his subjects though often violated they were still claimed by the nobility and people and as no presidents were supposed to be valid that infringed them they rather acquired than lost authority from the frequent attempts made against them in several ages by wriggle and arbitrary power Hume, chapter 12 Macintosh says it was understood by the simplest of the unlettered age for whom it was intended it was remembered by them for almost five centuries it was appealed to as the decisive authority on behalf of the people to have produced it to have preserved it to have matured it constitute the immortal claim of England on the esteem of mankind her bacons and Shakespeare's her Milton's and Newton's with all the truth which they have revealed and all the generous verges which they have inspired are of inferior value and compared with the subjection of men and their rulers to the principles of justice if indeed it be not more true and informed except under equal laws nor roused to full activity without the influence of that spirit which the great charter breathed over their forefathers Macintosh's history of England chapter 3 under the heading of John of the great charter the trial by jury is the vital part and the only part that places the liberties of the people in their own keeping of this Blackstone says the trial by jury or the country per patrium is also that trial by the peers of every Englishman which as the grand bulwark of his liberties is secured to him by the great charter Nullus liber homo capiator vel imprisonator out exulator out aleque modo testuator nisi per legale euditium parrim surum vel per legend terre the liberties of England cannot but subsist so long as this palladium remains sacred and inviolate not only from all open attacks which none will be so hardy as to make but also from all secret machinations which may sap and undermine it fourth Blackstone 349 to 50 the trial by jury has ever been and I trust ever will be looked upon as the glory of the English law it is the most transcendent privilege which any subject can enjoy or wish for that he cannot be affected in his property his liberty or his person but by the unanimous consent of 12 of his neighbors and equals third Blackstone 379 Hume calls the trial by jury an institution admirable in itself and the best calculated for the preservation of liberty and the administration of justice that ever was devised by the wit of man Hume chapter 2 an old book called English liberties says English parliaments have all along been most zealous for preserving this great jewel of liberty trials by jury having no less than 58 several times since the Norman conquest been established and confirmed by the legislative power no one privilege besides having been ever so often remembered in parliament page 203 fifth edition 1721 end of chapter 11