Free Political Institutions

Their Nature, Essence, and Maintenance

An Abridgment and Rearrangement of Lysander Spooner's "Trial by jury"

EDITED BY

VICTOR YARROS

LONDON

C. W. DANIEL, LTD.

3, Amen Corner, E.C.

1912

CHAPTER 3: TRIAL BY JURY AS DEFINED BY MAGNA CHARTA.-AUTHORITY OF MAGNA CHARTA

For more than six hundred years-that is, since Magna Charta 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 to 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.

Probably no political compact between king and people was ever entered into in a manner to settle more authoritatively the fundamental law of a nation than was Magna Charta. Probably no people were ever more united and resolute in demanding from their king a definite and unambiguous acknowledgment of their rights and liberties than 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 than 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 than 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 Charta.

To give all the evidence of the authority of Magna Charta, it would be necessary to give the constitutional history of England since the year 1215. The history would show that Magna Charta, 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 that the judicial tribunals, whenever it suited their purposes to do so, were in the habit of referring to Magna Charta as authority. 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 Charta, 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 even if the authority of Magna Charta had rested simply upon its character as a compact between king and people, it would have been for ever binding upon the king 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 Charta 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 principal benefit of the charter was that it contained a written description and acknowledgment, by the king himself, of what the constitutional law of the kingdom was which his coronation oath bound him to observe.

Previous to Magna Charta this constitutional law rested mainly in precedents, customs, and 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 acknowledgment 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 Charta it required much more audacity, cunning, or strength on the part of the king than it had to invade the people's liberties with impunity. Still, Magna Charta, like all other written constitutions, proved inadequate to the full accomplishment of its purpose, for when did a parchment ever have power 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 Charta. Innovations upon the law of the land were still made by the government. One innovation was cited as a precedent; precedents 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 "forty shilling freeholders," 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.

In order to judge of the object and meaning of that chapter of Magna Charta which secures the trial by jury, it is to be borne in mind that at the time of Magna Charta the king was, with immaterial exceptions, 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. Judges were abject servants of the king. Parliament, so far as there was a parliament, was a mere council of the king. It assembled only at the pleasure of the king, sat only during his pleasure, and had no power beyond that of simply advising the king. There was no House of Commons at that time, and the people had no right to be heard, unless as petitioners.

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. 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 the 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 circumstauces that the Great Charter of English Liberties was granted. The barons of England, sustained by the common people, having the king in their power, compelled him, at the price of his throne, to pledge himself that he would punish no freeman for a violation of any of his laws except with the consent of his 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 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 contemptible and servile privilege of ascertaining the simple fact whether those laws had been transgressed? Was this the only restraint which they, when they had the power, 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 for ever the power to punish any freeman except by the consent of his peers, they intended those peers should judge of and try the whole case on its merits, independentlv of all arbitrary legislation or judicial authority on the part of the king. in this way they took the liberties of each individual 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 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 evidence had left the matter in doubt.

Besides, if his laws were to be authoritative with the jury, why should John indignantly refuse, as at first he did, to grant the charter 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.

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 twenty-five barons should be appointed by the barons out of their number to keep. special, vigilance in the kingdom and 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 twenty-five 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.