Full Text Archive logoFull Text Archive — Free Classic E-books

An Essay on the Trial By Jury

Part 5 out of 6

Adobe PDF icon
Download An Essay on the Trial By Jury - Full Text Free Book (Part 5/6) pdf
File size: 0.6 MB
What's this? light bulb idea Many people prefer to read off-line or to print out text and read from the real printed page. Others want to carry documents around with them on their mobile phones and read while they are on the move. We have created .pdf files of all out documents to accommodate all these groups of people. We recommend that you download .pdfs onto your mobile phone when it is connected to a WiFi connection for reading off-line.

8, p. 126.

"BAILIFF- office. Magistrates who formerly administered justice
in the parliaments or courts of France, answering to the English
sheriffs, as mentioned by Bracton." Bouvier's Law Dict.

"There be several officers called bailiffs, whose offices and
employments seem quite different from each other... The chief
magistrate, in divers ancient corporations, are called bailiffs,
as in Ipswich, Yarmouth, Colchester, &c;. There are, likewise,
officers of the forest, who are termed bailiffs." 1 Bacon's
Abridgment, 498 9.

" BAILIFF signifies a keeper or superintendent, and is directly
derived from the French word bailli, which appears to come from
the word balivus, and that from bagalus, a Latin word signifying
generally a governor, tutor, or superintendent... The French word
bailli is thus explained by Richelet, (Dictionaire, &e;.:)
Bailli. He who in a province has the superintendence of justice,
who is the ordinary judge of the nobles, who is their head for
the ban and arriere ban, [9] and who maintains the right and
property of others against those who attack them... All the
various officers who are called by this name, though differing as
to the nature of their employments, seem to have some kind of
superintendence intrusted to them by their superior." Political

" BAILIFF, balivus. From the French word bayliff, that is,
praefectus provinciae, and as the name, so the office itself was
answerable to that of France, where there were eight parliaments,
which were high courts from whence there lay no appeal, and
within the precincts of the several parts of that kingdom which
belonged to each parliament, there were several provinces to
which justice was administered by certain officers called
bailiffs; and in England we have several counties in which
justice hath been, and still is, in small suits, administered to
the inhabitants by the officer whom we now call sheriff, or
viscount; (one of which names descends from the Saxons, the
other from the Normans.) And, though the sheriff is not called
bailiff, yet it was probable that was one of his names also, because
the county is often called balliva; as in the return of a writ, where
the person is not arrested, the sheriff saith, infra-nominatus,
A. B. non est inventus in balliva mea, &c;.; (the within named A.
B. is not found in my bailiwick, &c;.) And in the statute of
Magna Carta, ch. 28, and 14 Ed. 8, ch. 9, the word bailiff seems
to comprise as well sheriffs, as bailiffs of hundreds.

BAILIES, in Scotland, are magistrates of burghs, possessed of
certain jurisdictions, having the same power within their
territory as sheriffs in the county.

As England is divided into counties, so every county is divided
into hundreds; within which, in ancient times, the people had
justice administered to them by the several officers of every
hundred, which were the bailiffs. And it appears by Bracton,
(lib. 3, tract. 2, ch. 34,) that bailiffs of hundreds might
anciently hold plea of appeal and approvers; but since that time
the hundred courts, except certain franchises, are swallowed in
the county courts; and now the bailiff's name and office is grown
into contempt, they being generally officers to serve writs,
&c;., within their liberties; though, in other respects, the name
is still in good esteem, for the chief magistrates in divers
towns are called bailiffs; and sometimes the persons to whom the
king's castles are committed are termed bailiffs, as the bailiffof
Dover Castle, &c;.,

"Of the ordinary bailiffs there are several sorts, viz., bailiffsof
liberties; sheriffs' bailiffs; bailiffs of lords of manors; bailiffs of
husbandry, &c;.

"Bailiffs of liberties or franchises are to be sworn to take
distresses, truly impanel jurors, make returns by indenture
between them and sheriffs, &c;.

"Bailiffs of courts baron summon those courts, and execute the
process thereof. " Besides these, there are also bailiffs of the
forest... " Jacob's Law Dict. Tomlin's do.

"BAILIWICK, balliva, is not only taken for the county, but
signifies generally that liberty which is exempted from the
sheriff of the county, over which the lord of the liberty
appointeth a bailiff, with such powers within his precinct as an
under-sheriff exerciseth under the sheriff of the county; such as
the bailiff of Westminster." Jacob's Law Dict. Tomlin's do.

"A bailiff of a Leet, Court-baron, Manor, Balivus Letae, Baronis,
Manerii. He is one that is appointed by the lord, or his
steward, within every manor, to do such offices as appertain
thereunto, as to summon the court, warn the tenants and resiants;
also, to summon the Leet and Homage, levy fines, and make
distresses, &c;., of which you may read at large in Kitchen's
Court-leet and Court-baron." A Law Dictionary, anonymous, (in
Suffolk Law Library.)

"Bailliff In England an officer appointed by the sheriff.
Bailiff's are either special, and appointed, for their
adroitness, to arrest persons; or bailiffs of hundreds, who
collect fines, summon juries, attend the assizes, and execute
writs and processes, The sheriff in England is the king's

"The office of bailiff formerly was high and honorable in
England, and officers under that title on the continent are still
invested with important functions." Webster.

"BAILLI, (Scotland.) An alderman; a magistrate who is second in
rank in a royal burgh." Worcester.

"Baili, or Bailiff. (Sorte d'officier de justice.) A bailiff; a
sort of magistrate." Boyer's French Dict.

"By some opinions, a bailiff, in Magna Carta, ch. 28, signifies
any judge." Cunningham's Law Dict.

"BAILIFF. In the court of the Greek emperors there was a grand
bajulos, first tutor of the emperor's children. The
superintendent of foreign merchants seems also to have been
called bajulos; and, as he was appointed by the Venetians, this
title (balio) was transferred to the Venetian ambassador. From
Greece, the official bajulos (ballivus, bailli, in France;
bailiff, in England,) was introduced into the south of Europe,
and denoted a superintendent; hence the eight ballivi of the
knights of St. John, which constitute its supreme council. In
France, the royal bailiffs were commanders of the militia,
administrators or stewards of the domains, and judges of their
districts. In the course of time, only the first duty remained to
the bailiff; hence he was bailli d'epee, and laws were
administered in his name by a lawyer, as his deputy, lieutenant
de robe. The seigniories, with which high courts were connected,
employed bailiffs, who thus constituted, almost everywhere, the
lowest order of judges. From the courts of the nobility, the
appellation passed to the royal courts; from thence to the
parliaments. In the greater bailiwicks of cities of importance,
Henry II. established a collegial constitution under the name of
presidial courts... The name of bailiff was introduced into
England with William I. The counties were also called bailiwicks,
(bailivae,) while the subdivisions were called hundreds, but, as
the courts of the hundreds have long since ceased, the English
bailiffs are only a kind of subordinate officers of justice, like
the French huissiers. These correspond very nearly to the
officers called constables in the United States. Every sheriff
has someof them under him, for whom he is answerable. In some
cities the highest municipal officer yet bears this name, as the
high bailiff of Westminster. In London, the Lord Mayor is at the
same time bailiff; (which title he bore before the present became
usual,) and administers, in this quality, the criminal
jurisdiction of the city, in the court of old Bailey, where there
are, annually, eight sittings of the court, for the city of
London and the county of Middlesex. Usually, the recorder of
London supplies his place as judge. In some instances the term
bailiff, in England, is applied to the chief magistrates of
towns, or to the commanders of particular castles, as that of
Dover. The term baillie, in Scotland, is applied to a judicial
police-officer, having powers very similar to those of justices
of peace in the United States." Encyclopaedia Americana.

[8] Alderman was a title anciently given to various judicial officers,
as the Alderman of all England, Alderman of the King, Alderman
of the County, Alderman of the City or Borough, alderman of the
Hundred or Wapentake. These were all judicial officers. See Law

[9] "Ban and arriere ban, a proclamation, whereby all that hold
lands of the crown, (except some privileged officers and
citizens,) are summoned to meet at a certain place in order to
serve the king in his wars, either personally, or by proxy."

[10] Perhaps it may be said (and such, it has already been seen,
is the opinion of Coke and others) that the chapter of Magna
Carta, that "no bailiff from henceforth shall put any man to his
open law, (put him on trial,) nor to an oath (that is, an oath of
self- exculpation) upon his (the bailiff's) own accusation or
testimony, without credible witnesses brought in to prove the
charge," is itself a " provision in regard to the king's justices
sitting in criminal trials," and therefore implies that they areto sit
in such trials.

But, although the word bailiff includes all judicial, as well as
other, officers, and would therefore in this case apply to the
king's justices, if they were to sit in criminal trials; yet this
particular chapter of Magna Carta evidently does not contemplate
"bailiffs" while acting in their judicial capacity, (for they
were not allowed to sit in criminal trials at all,) but only in
the character of witnesses, and that the meaning of the chapter
is, that the simple testimony (simplici loquela) of "no bailiff,"
(of whatever kind,) unsupported by other and "credible
witnesses," shall be sufficient to put any man on trial, or to
his oath of self-exculpation." [11]

It will be noticed that the words of this chapter are not, "no
bailiff of ours," that is, of the king, as in some other
chapters of Magna Carta; but simply "no bailiff,"&c;. The
prohibition, therefore, applied to all "bailiffs," to those
chosen by the people, as well as those appointed by the king. And
the prohibition is obviously founded upon the idea (a very sound
one in that age certainly, and probably also in this) that public
officers (whether appointed by king or people) have generally, or
at least frequently, too many interests and animosities against
accused persons, to make it, safe to convict any man on their
testimony alone.

The idea of Coke and others, that the object of this chapter was
simply to forbid magistrates to put a man on trial, when there
were no witnesses against him, but only the simple accusation or
testimony of the magistrates themselves, before whom he was to
be tried, is preposterous; for that would be equivalent to supposing
that magistrates acted in the triple character of judge, jury and
witnesses, in the same trial; and that, therefore, in such case,
they needed to be prohibited from condemning a man on their own
accusation or testimony alone. But such a provision would have
been unnecessary and senseless, for two reasons; first, because
the bailiffs or magistrates had no power to "hold pleas of the
crown," still less to try or condemn a man; that power resting
wholly with the juries; second, because if bailiffs or
magistrates could try and condemn a man, without a jury, the
prohibition upon their doing so upon their own accusation or
testimony alone, would give no additional protection to the
accused, so long as these same bailiffs or magistrates were
allowed to decide what weight should be given, both to their own
testimony and that of other witnesses, for, if they wished to
convict, they would of course decide that any testimony, however
frivolous or irrelevant, in addition to their own, was sufficient.
Certainly a magistrate could always procure witnesses
enough to testify to something or other, which he himself could
decide to be corroborative of his own testimony. And thus the
prohibition would be defeated in fact, though observed in form.

[11] At the common law, parties, in both civil and criminal
cases, were allowed to swear in their own behalf; and it will be
so again, if the true trial by jury should be reestablished.

[12] In this chapter I have called the justices "presiding
officers," solely for the want of a better term. They are not
"presiding officers," in the sense of having any authority over
the jury; but are only assistants to, and teachers and servants
of, the jury. The foreman of the jury is properly the "Presiding
Officer," so far as there is such an officer at all. The sheriff
has no authority except over other persons than the jury.


The free administration of justice was a principle of the common
law; and it must necessarily be a part of every system of
government which is not designed to be an engine in the hands of
the rich for the oppression of the poor.

In saying that the free administration of justice was a principle
of the common law, I mean only that parties were subjected to no
costs for jurors, witnesses, writs, or other necessaries for the
trial, preliminary to the trial itself. Consequently, no one
could lose the benefit of a trial, for the want of means to
defray expenses. But after the trial, the plaintiff or defendant
was liable to be amerced, (by the jury, of course,) for having
troubled the court with the prosecution or defence of an unjust

[1] But it is not likely that the losing party was subjected to
an amercement as a matter of course, but only in those cases
where the injustice of his cause was so evident as to make him
inexcusable in bringing it before the courts.

All the freeholders were required to attend the courts, that they
might serve as jurors and witnesses, and do any other service
that could legally be required of them; and their attendance was
paid for by the state. In other words, their attendance and
service at the courts were part of the rents which they paid the
state for their lands.

The freeholders, who were thus required always to attendthe
courts, were doubtless the only witnesses who were usually
required in civil causes. This was owing to the fact that, in
those days, when the people at large could neither write nor
read, few contracts were put in writing. The expedient adopted
for proving contracts, was that of making them in the presence of
witnesses, who could afterwards testify to the transactions. Most
contracts in regard to lands were made at the courts, in the
presence of the freeholders there assembled. [2]

In the king's courts it was specially provided by Magna Carta
that "justice and right" should not be "sold;" that is, that the
king should take nothing from the parties for administering

The oath of a party to the justice of his cause was all that was
necessary to entitle him to the benefit of the courts free of all
expense; (except the risk of being amerced after the trial, in
case the jury should think he deserved it. [3])

This principle of the free administration of justice connects
itself necessarily with the trial by jury, because a jury could
not rightfully give judgment against any man, in either a civil
or criminal case, if they had any reason to suppose he had been
unable to procure his witnesses.

The true trial by jury would also compel the free administration
of justice from another necessity, viz., that of preventing
private quarrels; because, unless the government enforced a man's
rights and redressed his wrongs, free of expense to him, a jury
would be bound to protect him in taking the law into his own
hands. A man has a natural right to enforce his own rights and
redress his own wrongs. If one man owe another a debt, and refuse
to pay it, the creditor has a natural right to seize sufficient
property of the debtor, wherever he can find it, to satisfy the
debt. If one man commit a trespass upon the person, property or
character of another, the injured party has a natural right,
either to chastise the aggressor, or to take compensation for the
injury out of his property. But as the government is an impartial
party as between these individuals, it is more likely to do
exactjustice between them than the injured individual himself would
do. The government, also, having more power at its command, is
likely to right a man's wrongs more peacefully than the injured
party himself could do it. If, therefore, the government will do
the work of enforcing a man's rights, and redressing his wrongs,
promptly, and free of expense to him, he is under a moral
obligation to leave the work in the hands of the government; but
not otherwise. When the government forbids him to enforce his
own rights or redress his own wrongs, and deprives him of all means
of obtaining justice, except on the condition of his employing
the government to obtain it for him, and of paying the government
for doing it, the government becomes itself the protector and
accomplice of the wrong-doer. If the government will forbid a man
to protect his own rights, it is bound, to do it for him, free of
expense to him. And so long as government refuses to do this,
juries, if hey knew their duties, would protect a man in
defending his own rights.

Under the prevailing system, probably one half of the community
are virtually deprived of all protection for their rights, except
what the criminal law affords them. Courts of justice, for all
civil suits, are as effectually shut against them, as though it
were done by bolts and bars. Being forbidden to maintain their
own rights by force, as, for instance, to compel the payment of
debts, and being unable to pay the expenses of civil suits,
they have no alternative but submission to many acts of
injustice, against which the government is bound either to
protect them, free of expense, or allow them to protect

There would be the same reason in compelling a party to pay the
judge and jury for their services, that there is in compelling
him to pay the witnesses, or any other necessary charges. [4]

This compelling parties to pay the expenses of civil suits is one
of the many cases in which government is false to the fundamental
principles on which free government is based. What is the object
of government, but to protect men's rights? On what principle
does a man pay his taxes to the government, except on that of
contributing his proportion towards the necessary cost of
protecting the rights of all? Yet, when his own rights are
actually invaded, the government, which he contributes to
support, instead of fulfilling its implied contract, becomes his
enemy, and not only refuses to protect his rights, (except at his
own cost,) but even forbids him to do it himself.

All free government is founded on the theory of voluntary
association; and on the theory that all the parties to it
voluntarily pay their taxes for its support, on the condition of
receiving protection in return. But the idea that any poor man
would voluntarily pay taxes to build up a government, which will
neither protect his rights, (except at a cost which he cannot
meet,) nor suffer himself to protect them by such means as may be
in his power, is absurd.

Under the prevailing system, a large portion of the lawsuits
determined in courts, are mere contests of purses rather than of
rights. And a jury, sworn to decide causes "according to the
evidence" produced, are quite likely, for aught they themselves
can know, to be deciding merely the comparative length of the
parties' purses, rather than the intrinsic strength of their
respective rights. Jurors ought to refuse to decide a cause at
all, except upon the assurance that all the evidence, necessary
to a full knowledge of the cause, is produced. This assurance
they can seldom have, unless the government itself produces all
the witnesses the parties desire.

In criminal cases, the atrocity of accusing a man of crime, and
then condemning him unless he prove his innocence at his own
charges, is so evident that a jury could rarely, if ever, be
justified in convicting a man under such circumstances.

But the free administration of justice is not only indispensable
to the maintenance of right between man and man; it would also
promote simplicity and stability in the laws. The mania for
legislation would be, in an important degree, restrained, if the
government were compelled to pay the expenses of all the suits
that grew out of it.

The free administration of justice would diminish and nearly
extinguish another great evil, that of malicious civil suits It
is an old saying, that "multi litigant in foro, non ut aliquid
lucentur, sed ut vexant alios." (Many litigate in court, not that
they may gain anything, but that they may harass others.) Many
men, from motives of revenge and oppression, are willing to spend
their own money in prosecuting a groundless suit, if they can
thereby compel their victims, who are less able than themselves
to bear the loss, to spend money in the defence. Under the
prevailing system, in which the parties pay the expenses of their
suits, nothing but money is necessary to enable any malicious man
to commence and prosecute a groundless suit, to the terror,
injury, and perhaps ruin, of another man. In this way, a court of
justice, into which none but a conscientious plaintiff certainly
should ever be allowed to enter, becomes an arena into which any
rich and revengeful oppressor may drag any man poorer than
himself, and harass, terrify, and impoverish him, to almost any
extent. It is a scandal and an outrage, that government should
suffer itself to be made an instrument, in this way, for the
gratification of private malice. We might nearly as well have no
courts of justice, as to throw them open, as we do, for such
flagitious uses. Yet the evil probably admits of no remedy except
a free administration of justice. Under a free system, plaintiffs
could rarely be influenced by motives of this kind; because they
could put their victim to little or no expense, neither pending
the suit, (which it is the object of the oppressor to do,) nor at
its termination. Besides, if the ancient common law practice
should be adopted, of amercing a party for troubling the courts
with groundless suits, the prosecutor himself would, in the end,
be likely to be amerced by the jury, in such a manner as to make
courts of justice a very unproitable place for a man to go to
seek revenge.

In estimating the evils of this kind, resulting from the present
system, we are to consider that they are not, by any means,
confined to the actual suits in which this kind of oppression is
practised; but we are to include all those cases in which the
fear of such oppression is used as a weapon to compel men into a
surrender of their rights.

[1] 2 Sullivan Lectures, 234-5. 3 Blackstone, 274-5, 376. Sullivan
says that both plaintiff's and defendants were liable to
amercement. Blackstone speaks of plaintiffs being liable, without
saying whether defendants were so or not. What the rule really
was I do not know. There would seem to be some reason in
allowing defendants to defend themselves, at their own charges,
without exposing themselves to amercement in case of failure.

[2] When any other witnesses than freeholders were required in a
civil suit, I am not aware of the manner in which their
attendance was procured; but it was doubtless done at the expense
either of the state or of the witnesses themselves. And it was
doubt less the same in criminal cases.

[3] "All claims were established in the first stage by the oath
of the plaintiff, except when otherwise specially directed by the
law. The oath, by which any claim was supported, was called the
fore-oath, or ' Praejuramentum,' and it was the foundation of his
suit. One of the cases which did not require this initiatory
confirmation, was when cattle could be tracked into another man's
land, and then the foot-mark stood for the fore-oath." 2
Palgrave's Rise and Progress, &c;., 114.

[4] Among the necessary expenses of suits, should be reckoned
reasonable compensation to counsel, for they are nearly or quite
as important to the administration of justice, as are judges,
jurors, or witnesses; and the universal practice of employing
them, both on the part of governments and of private persons,
shows that their importance is generally understood. As a mere
matter of economy, too, it would be wise for the government to
pay them, rather than they should not be employed; because they
collect and arrange the testimony and the law beforehand, so as
to be able to present the whole case to the court and jury
intelligibly, and in a short space of time. Whereas, if they were
not employed, the court and jury would be under the necessity
either of spending much more time than now in the investigation
of causes, or of despatching them in haste, and with little
regard to justice. They would be very likely to do the latter,
thus defeating the whole object of the people in establishing

To prevent the abuse of this right, it should perhaps be left
discretionary with the jury in each case to determine whether the
counsel should receive any pay and, if any, how much from the


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. Guiltis 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 for such offences, 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 all agree that
it is in the right, or it must incur the risk of resistance,
without any power to punish it. 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." And 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 offences 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 aforethought," 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." This 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, viz., 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 persons under
the years of discretion, and men of imbecile minds? What else
than ignorance of the law is it that excuses judges themselves
for all their erroneous decisions? Nothing. They are every day
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 unlearned man, who comes before them charged with 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 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:

1. "The reason for the maxim 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 2d edition of Starkie on Slander,
Prelim. Disc., p. 140, note.)" Law Magazine, (London,) vol. 27,
p. 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 but 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 every-day practice of 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," &. &. 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 offence,) 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, 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 clearlycriminal, they would
naturally and reasonably infer that the accused also understood that
it was intrinsically criminal, (and consequently illegal,) unless it
should appear that he was either below themselves in the scale of
intellect, or had had less opportunities of knowing what acts were
criminal. In short, they would judge, 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

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 of the penalty
thereby inflicted on offenders, doth not excuse any that is of
the age of discretion and compos mentis, from the penalty of the
breach of it; because every person, of the age of discretion and
compos mentis, is bound to know the law, and presumed to do so.
"Ignorantia eorum,, quae quis scire tenetur non excusat."
(Ignorance of those things which every one is bound to know, does
not excuse.) 1 Hale's Pleas of the Crown, 42. Doctor and
Student, Dialog. 2, ch. 46. Law Magazine, (London,) vol. 27, p.

The sum of this reason is, that ignorance of the law excuses no
one, (who is of the age of discretion and is compos mentis,)
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 every one 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 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 the 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.

This doctrine, that "ignorance of the law excuses no one," is
constantly repeated in the form that "every one 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 extraordinaries of any one. It requires only
thoughtfulness and a good conscience. It requires only that a man
fairly and properly 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 as 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 mass of mankind can
give but little of their attention to acquiring a knowledge of the
law. Their other duties in life forbid it. Of course, they cannot
investigate abstruse or difficult questions. All that can
rightfully be required of each of them, then, is that he exercise
such a candid and conscientious judgment as it is common
formankind 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 in his own
liability to be punished for such acts. As those are the only
grounds on which any one 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 he 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 jury 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 understand- ing 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. [2]

[1] This presumption, founded upon age alone, is as absurd in
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 twenty-one 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 wants 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 twenty-one 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 twenty-one 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
any one becomes capable of taking reasonable care of himself, and
not until then, he is entitled to his freedom, be his age more or

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 in question.

[2] 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 of the present day, or perhaps within the last five
hundred years, has admitted the right of 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 evince 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 practised upon in courts of justice; and they
plainly involve the most absolute despotism on the part of the

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 eminent judges,
and the reasons for it are thus given by Lord Mansfield:

"They (the jury) do not know, and are not presumed to know, the
law. They are not sworn to decide the law;" [3] 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 but their passions and wishes." 8 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 even they are not supposed
competent to understand, but for the transgression 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 truetrial 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 Mansfield 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 but
despotism? and not merely despotism, but insult and oppression
of the intensest kind?

[3] This declaration of Mansfield, that 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 as well as
the fact. See Jurors Oath, page 85.

This doctrine of Mansfield 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 defence.


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
hold 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 a 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, and 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
impostures 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, what weight 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 in the trial at all, and cannot do so
without making themselves accomplices in any injustice that they
may 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, when
they 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 indicted 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) think ought to have been
admitted in his defence.

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 infliction of such

The consequence is, that jurors must have the whole case in their
hands, and judge of law, evidence, and sentence, or they incur
the moral responsibility of accomplices in any injustice which
they have reason to believe will be done by the government on the
authority of their 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 a defendant,
and any sentence that can be inflicted upon him, even if he be

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 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 of variation, but this should be the
substance. Such, we have seen, were the ancient common law


PROBABLY no political compact between king and people was
entered into in a manner to settle more authoritatively the
fundamental law of a nation, than was Magna Carta. Probably no
people were ever more united and resolute in demanding from
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 every 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 Carta. If, 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 two hundred years the charter was confirmed by
Henry and his successors more than thirty 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, vigilance 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,
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 Mackintosh designates as "a few
freeholders then accounted wealthy," [1]) by the exclusion of all
others than such freeholders from all voice in the election of
knights to represent the counties in the House of Commons, that a
repetition of these confirmations of Magna Carta ceased to be
demanded. and obtained. [2]

The terms and the formalities of some of these "confirmations"
make them worthy of insertion at length.

Hume thus describes one which took place in the 38th year of
Henry III. (1253):

" 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 manner 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 of excommunication against every one who should
thenceforth violate that fundamental law. They threw their tapers
on the ground, and exclaimed, May the soul of every one 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 inviolate, as I am a man, as I am a
Christian, as I am a knight, and as I am a king crowned and
anointed.' " Hume, ch. 12. See also Blackstone's Introd. to the
Charters. Black. Law Tracts, Oxford ed., p. 332. Makintosh's
Hist. of Eng., ch. 3. Lardner's Cab. Cyc., vol. 45, p. 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 a thousand two hundred and fifty-three, the
third day of May, in the great Hall of the King at Westminster,
in the presence, and by the assent, of the Lord Henry, by the
Grace of God King of England, and the Lords Richard, Earl of
Cornwall, his brother, Roger (Bigot) Earl of Norfolk and
Suffolk;, marshal of England, Humphrey, Earl of Hereford, Henry,
Earl of Oxford, John, Earl of Warwick, and other estates of the
Realm of England: We, Boniface, by the mercy of God Archbishop
Canterbury, Primate of all England, F. of London, H. of Ely, S.
of Worcester, F. of Lincoln, W. of Norwich, P. of Hereford, W. of
Salisbury, W. of Durham, R. of Exeter, M. of Carlisle, W. of
Bath, E. of Rochester, T. of Saint David's, Bishops, appareled in
Pontificals, with tapers burning, against the breakers of the
Church's Liberties, and of the Liberties or free customs of the
Realm of England, and especially of those which are contained in
the Charter of the Common Liberties of the Realm, and the
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, accurse, and from the thresholds
(liminibus) of our Holy Mother the Church, We sequester, all
those that hereafter willingly and maliciously deprive or spoil
the Church of her right: And all those that by any craft or
wiliness 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 counsel, 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, the
Writers and Counselors of said statutes, and the Executors of
them, and a11 those that shall presume to judge according to
them. All and every which persons before mentioned, that
wittingly 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, and
be admonished, except they reform themselves within fifteen days
after the time of the admonition, and make full satisfaction 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, We, the aforesaid Prelates, have put our
seals to these presents." Statutes of the Realm, vol. 1, p. 6.
Ruffhead's Statutes, vol. 1, p. 20.

One of the Confirmations of the Charters, by Edward I., was by
statute, in the 25th year of his reign, (1297,) in the following
terms. The statute is usually entitled. "Confirmatio
Cartarum,"(Confirmation of the Charters.)

Ch. 1. "Edward, by the Grace of God, King of England, Lord of
Ireland, and Duke of Guyan, To all those that these presents
shall hear or see, Greeting. Know ye, that We, to the honor of
Cod, and of Holy Church, and to the profit of our Realm, have
granted, for us and our heirs, that the Charter of Liberties, and
the Charter of the Forest, which were made 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, as to others, and to all Sheriff's of shires, and to
all our other officers, and to all our cities throughout the
Realm, together with our writs, in the which it shall he
contained, that they cause the aforesaid 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 for the
wealth of our Realm.

Ch. 2. "And we will that if any judgment be given from henceforth
contrary to the points of the charters aforesaid 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.

Ch. 3. "And we will, that the same Charters shall be sent, under
our seal, to Cathedral Churches throughout our Realms there to
remain, and shall be read before the people two times in the

Ch. 4. "And that all Archbishops and Bishops shall pronounce the
sentence of excommunication against all those that by word, deed,
or counsel, 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 aforesaid. And if
the same prelates, or any of them, be remiss in the denunciation
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 aforesaid." St. 25 Edward I., (1297.).
Statutes of the Realm, vol. l, p. 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., ch. 1, (1300.) v

Lingard says, "The Charter was ratified four times by Henry III.,
twice by Edward I., fifteen times by Edward III., seven times by
Richard II., six times by Henry IV., and once by Henry V.;"
making thirty-five times in all. 3 Lingard, 50, note, Philad.

Coke says Magna Carta was confirmed thirty-two times. Preface
to 2 Inst., p. 6.

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." 3 Lingard, 50.

Mackintosh says, "For almost five centuries (that is, until 1688)
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." Mackintosh's Hist. of Eng.
ch. 3. 45 Lardner's Cab. Cyc., 221.

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, [3] says:

"It is called Magna Carta, not that it is great in quantity, for
there be many voluminous charters commonly passed, specially in
these later times, longer than this is; nor comparatively in
respect that it is greater than Charta de Foresta, but in respect
of the great importance and weightiness of the matter, as
hereafter shall appear; and likewise for the same cause Charta de
Foresta; and both of them are called Magnae Char- tae Libertatum
Angliae, (The Great Charters of the Liberties of England.)

"And it is also called Charta Libertatum regni, (Charter of the
liberties of the kingdom;) and upon great reason it is so called
of the effect, quia liberos facit, (because it makes men free.)
Sometime for the same cause (it is called) communis libertas,
(common liberty,) and le chartre des franchises, (the charter of

"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 said act of 25 Edward I., (called Confirmatio
Chartarum,) it is adjudged in parliament 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 Charta, and Charta de Foresta, divers
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 such as
resorted to them the laws of the realm, taking their foundation
of Magna Charta and Charta de Foresta.

"And the said two charters have been confirmed, established, and
commanded to be put in execution by thirty-two several acts of
parliament in all.

"This appeareth partly by that which hath been said, for that it
hath so often been confirmed by the wise providence of so many
acts of parliament.

"And albeit judgments in the king's courts are of high regard in
law, and judicia (judgments) are accounted as jurisdicta, (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 Charta de Foresta, by the
justices, or by any other of the king's ministers, &c;., 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 Magna Carta 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 Magna Charta and
Charta de Foresta.

"Magna fuit quondam magnae reverentia chartae." (Great was
formerly the reverence for Magna Carta.) Coke's Proem to 2
Inst., p. 1 to 7.

Coke also says, "All pretence of prerogative against Magna Charta
is taken away." 2 Inst., 36.

He also says, "That after this parliament (52 Henry III., in
1267) neither Magna Carta nor Carta de Foresta was ever
attempted to be impugned or questioned." 2 Inst., 102. [4]

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 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 Carta, this constitutional law rested
mainly in precedents, 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
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; for when did a parchment ever
power adequately to restrain a government, that had either
cunning to evade its requirements, or strength to overcome those
who attempted its defence? 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;
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.

As proof that Magna Carta embraced little else than what was
previously recognized as the common law, or Law of the Land, I
repeat some authorities that have been already cited.
Crabbe says, "It is admitted on all hands that it (Magna Carta)
contains nothing but what was confirmatory of the common law
the ancient usages of the realm; and is, properly speaking, only
an enlargement of the charter of Henry I. and his successors."
Crabbe's Hist. of the Eng. Law, p. 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 Saxon princes." Blackstone's Introd. to
the Charters. See Blackstone's Law Tracts, Oxford ed., p. 289.

Coke says, " The common law is the most general and ancient law
of the realm... The common law appeareth in the statute of Magna
Carta, and other ancient statutes, (which for the most part are
affirmations of the common law,) in the original writs, in
judicial records, and in our books of terms and years." 1
Inst., 115 b.

Coke 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 of 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." Preface to 2 Inst., p. 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 latter articles
of Magna Carta; and the barons who, at the beginning of these
commotions, demanded the revival of the Saxon laws,
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, ch. 11.

Edward the First 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
been already cited in this chapter. 25 Edward I., ch. 1,

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 irrefragable 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, had utterly inadequate ideas of the true character of
the instrument on which they lavished their eulogiums.

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 to 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
precedents were supposed valid that infringed them, they rather
acquired than lost authority, from the frequent attempts made
against them in several ages, by regal and arbitrary power."
Hume, ch. 12.

Mackintosh 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
arid Shakspeares, her Miltons and Newtons, with all the truth
which they have revealed, and all the generous virtues which they
have inspired, are of inferior value when compared with the
subjection of men and their rulers to the principles of justice;
if, indeed, it be not more true that these mighty spirits could
not have been formed except under equal laws, nor roused to full
activity without the influence of that spirit which the Great
Charter breathed over their forefathers." Mackintosh's Hist. of
Eng., ch. 3, [8]

Of the Great Charter, the trial by jury is the vital part, and
the only part that places the liberties of the people in their
own keeping. Of this Blackstone says:

"The trial by jury, or the country, per patriam, is also that
trial by the peers of every Englishman, which, as the grand
bulwark of his liberties, is secured to him by the Great Charter;
nullus liber homo capiatur, vel imprisonetur, aut exuletur, aut
aliquo modo destruatur, nisi per legale judicial parium suorum,
vel per legem terrae.

The liberties of England cannot but subsist so long as this
palladium remains sacred and inviolate, not only from all open,
attacks, which none will be so hardy as to make, but also from
all secret machinations which may sap and undermine it." [9]

"The trial by jury ever has been, and I trust ever will be,
looked upon as the glory of the English law... It is the most
transcendent privilege which any subject can enjoy or wish for,
that he cannot be affected in his property, his liberty, or his
person, but by the unanimous consent of twelve of his neighbors
and equals."[10]

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." [11]

An old book, called "English Liberties," says:"English
Parliaments have all along been most zealous for preserving this
Great Jewel of Liberty, Trials by Juries having no less than
fifty-eight several times, since the Norman Conquest, been
established and confirmed by the legislative power, no one
privilege besides having been ever so often remembered in

[1] Mackintosh's Hist. of Eng., ch. 3. 45 Lardner's Cab. Cyc.,

[2] "Forty shilling freeholders" were those "people dwelling and
resident in the same counties, whereof every one of them shall
have free land or tenement to the value of forty shillings by the
year at the least above all charges." By statute 8 Henry 6, ch.
7, (1429,) these freeholders only were allowed to vote for
members of Parliament from the counties.

[3] He probably speaks in its favor only to blind the eyes of the
people to the frauds he has attempted upon its true meaning.

[4] 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 pretences, that laws anciently
enacted by the king, at the request, or with the consent, or by
the advice, of his parliament, was "an act of parliament,"
instead of the act of the king. And in the extracts cited, he
carries this idea so far as to pretend that the various
confirmations of the Great Charter were "acts of parliament,"
instead of the acts of the kings. He might as well have pretended
that the original grant of the Charter was an "act of parliament;
"because it was not only granted at the request, and with the
consent, and by the advice, but on the compulsion even, of those
who commonly 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 false- hood that 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 in special answer to the
petitions of their subjects, therefore those petitioners were a
part of the legislative power of the kingdom.

One great objection to this 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 in council, or a simple proclamation, writ, 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

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 the ancient parliaments were not
legislative, but judicial, as will be shown more fully hereafter.
The people were not represented in the parliaments at the time of
Magna Carta, but only the archbishops, bishops, earls, barons,
and knights; so that little or nothing would have been gained for
liberty by Coke's idea that parliament had a legislative power.
He would only have substituted an aristocracy for a king. Even
after the Commons were represented in 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, and especially of the
Commons, in the general legislation of the country, was a thing
of slow growth, having its origin in a device of the king to get
money contrary to law, (as will be seen in the next volume,) and
not at all a part of the constitution of the kingdom, nor having
its foundation in the consent of the people. The power, as at
present exercised, was not fully established until 1688, (near
five hundred years after Magna Carta,) when the House of
Commons (falsely so called) had acquired such influence as the
representative, not of the people, but of the wealth, of the
nation, that they compelled, the king to discard the oath fixed
by the constitution of the kingdom; (which oath has been already
given in a former chapter, [5] and was, in substance, to preserve
and execute the Common Law, the Law of the Land, or, in the
words of the oath, "the just laws and customs which the common
people had chosen;") and to swear that he would "govern the
people of this kingdom of England, and the dominions thereto
belonging, accordingto the statutes in parliament agreed on, and
the laws and customs of the same." [6]

The passage and enforcement of this statute, and the assumption
of this oath by the king, were plain violations of the English
constitution, inasmuch as they abolished, so far as such an oath
could abolish, the legislative power of the king, and also "those
just laws and customs which the common people (through their
juries) had chosen," and substituted the will of parliament in
their stead.

Coke 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," [7] 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 Coke, that the charter was confirmed by
thirty-two "acts of parliament," have a mischievous bearing in
another respect. They tend to weaken the authority of the
charter, by conveying the impression that the charter itself
might be abolished by "act of parliament." Coke himself admits
that it could not be revoked or rescinded by the king; for he
says, "All pretence of prerogative against Magna Carta is taken
away." (2 Inst., 36.)

He knew perfectly well, and the whole English nation knew, that
the king could not lawfully infringe Magna Carta. Magna Carta,
therefore, made it impossible that absolute power could ever be
practically established in England, in the hands of the king.
Hence, as Coke was an advocate for absolute power, that is, for
a legislative power "so transcendent and absolute as (that) it
cannot, be confined, either for causes or persons, within any
bounds," there was no alternative for him but to vest this
absolute power in parliament. Had he not vested it in parliament,
he would have been obliged to abjure it altogether, and to
confess that the people, through their juries, had the right to
judge of the obligation of all legislation whatsoever; in other
words, that they had the right to confine the government within
the limits of "those just laws and customs which the common
people (acting as jurors) had chosen." True to his instincts, as
a judge, and as a tyrant, he 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 thirty-two confirmations of Magna Carta, which Coke
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 confirmations; just as they had helped to oblige him by
arms to grant the charter in the first place. But the confirmations
themselves were nevertheless constitutionally, as well as formally,
the acts of the king alone.

[5] See page 103.

[6]St. 1.William and Mary, ch. 6, (1688)

[7]4. Inst., 36.

[8] Under the head of "John."

[9] 4 Blackstone, 849-50.

[10] 3 Blackstone, 379.

[11] Hume, ch. 2.

[12] Page 203, 5th edition, 1721.

CHAPTER XII. Limitations Imposed Upon The Majority By The
Trial By Jury

The principal objection, that will be made to the doctrine of
this essay, is, that under it, a jury would paralyze the power of
the majority, and veto all legislation that was not in accordance
with the will of the whole, or nearly the whole, people.

The answer to this objection is, that the limitation, which would
be thus imposed upon the legislative power, (whether that power
be vested in the majority, or minority, of the people,) is the
crowning merit of the trial by jury. It has other merits; but,
though important in themselves, they are utterly insignificant
and worthless in comparison with this.

It is this power of vetoing all partial and oppressive
legislation, and of restricting the government to the maintenance
of such laws as the whole, or substantially the whole, people are
agreed in, that makes the trial by jury "the palladium of
liberty." Without this power it would never have deserved that

The will, or the pretended will, of the majority, is the last
lurking place of tyranny at the present day. The dogma, that
certain individuals and families have a divine appointment to
govern the rest of mankind, is fast giving place to the one that
the larger number have a right to govern the smaller; a dogma,
which may, or may not, be less oppressive in its practical
operation, but which certainly is no less false or tyrannical in
principle, than the one it is so rapidly supplanting. Obviously
there is nothing in the nature of majorities, that insures
justice at their hands. They have the same passions as
minorities, and they have no qualities whatever that should be
expected to prevent them from practising the same tyranny as
minorities, if they think it will be for their interest to do so.

There is no particle of truth in the notion that the majority
have a right to rule, or to exercise arbitrary power over, the
minority, simply because the former are more numerous than the
latter. Two men have no more natural right to rule one, than one
has to rule two. Any single man, or any body of men, many or few,
have a natural right to maintain justice for themselves, and for
any others who may need their assistance against the injustice of
any and all other men, without regard to their numbers; and
majorities have no right to do any more than this. The relative
numbers of the opposing parties have nothing to do with the
question of right. And no more tyrannical principle was ever
avowed, than that the will of the majority ought to have the
force of law, without regard to its justice; or, what is the same
thing, that the will of the majority ought always to be presumed
to be in accordance with justice. Such a doctrine is only another
form of the doctrine that might makes right.

When two men meet one upon the highway, or in the wilderness,
have they a right to dispose of his life, liberty, or property at
their pleasure, simply because they are the more numerous party?
Or is he bound to submit to lose his life, liberty, or property,
if they demand it, merely because he is the less numerous party?
Or, because they are more numerous than he, is he bound to
presume that they are governed only by superior wisdom, and the
principles of justice, and by no selfish passion that can lead
them to do him a wrong? Yet this is the principle, which it is
claimed should govern men in all their civil relations to each
other. Mankind fall in company with each other on the highway or
in the wilderness of life, and it is claimed that the more
numerous party, simply by virtue of their superior numbers, have
the right arbitrarily to dispose of the life, liberty, and
property of the minority; and that the minority are bound, by
reason of their inferior numbers, to practise abject submission,
and consent to hold their natural rights, any, all, or none, as
the case may be, at the mere will and pleasure of the majority;
as if all a man's natural rights expired, or were suspended by
the operation of a paramount law, the moment he came into the
presence of superior numbers.

If such be the true nature of the relations men hold to each
other in this world, it puts an end to all such things as crimes,
unless they be perpetrated upon those who are equal or superior,
in number, to the actors. All acts committed against persons
inferior in number to the aggressors, become but the exercise at
rightful authority. And consistency with their own principles
requires that all governments, founded on the will of the
majority, should recognize this plea as a sufficient
justification for all crimes whatsoever.

If it be said that the majority should be allowed to rule, not
because they are stronger than the minority, but because their
superior numbers furnish a probability that they are in the
right; one answer is, that the lives, liberties, and properties
of men are too valuable to them, and the natural presumptions are
too strong in their favor, to justify the destruction of them by
their fellow-men on a mere balancing of probabilities, or on any
ground whatever short of certainty beyond a reasonable doubt.
This last is the moral rule universally recognized to be binding
upon single individuals. And in the forum of conscience the same
rule is equally binding upon governments, for governments are
mere associations of individuals. This is the rule on which the
trial by jury is based. And it is plainly the only rule that
ought to induce a man to submit his rights to the adjudication of
his fellow-men, or dissuade him from a forcible defence of them.

Another answer is, that if two opposing parties could be supposed
to have no personal interests or passions involved, to warp their
judgments, or corrupt their motives, the fact that one of the
parties was more numerous than the other, (a fact that leaves the
comparative intellectual competency of the two parties entirely
out of consideration,) might, perhaps, furnish a slight, but at
best only a very slight, probability that such party was on the
side of justice. But when it is considered that the parties are
liable to differ in their intellectual capacities, and that one,
or the other, or both, are undoubtedly under the influence of
such passions as rivalry, hatred, avarice, and ambition.
passions that are nearly certain to pervert their judgments, and
very likely to corrupt their motives, all probabilities founded
upon a mere numerical majority, in one party, or the other,
vanish at once; and the decision of the majority becomes, to all
practical purposes, a mere decision of chance. And to dispose of
men's properties, liberties, and lives, by the mere process of
enumerating such parties, is not only as palpable gambling as was
ever practised, but it is also the most atrocious that was ever
practised, except in matters of government. And where
government is instituted on this principle, (as in the United States, for
example,) the nation is at once converted into one great gambling
establishment; where all the rights of men are the stakes; a few
bold bad men throw the dice (dice loaded with all the hopes,
fears, interests, and passions which rage in the breasts of
ambitious and desperate men,) and all the people, from the
interests they have depending, become enlisted, excited,
agitated, and generally corrupted, by the hazards of the game.

The trial by jury disavows the majority principle altogether; and
proceeds upon the ground that every man should be presumed to
be entitled to life, liberty, and such property as he has in his
possession; and that the government should lay its hand upon none
of them, (except for the purpose of bringing them before a
tribunal for adjudication,) unless it be first ascertained.,
beyond a reasonable doubt, in every individual case, that justice
requires it.

To ascertain whether there be such reasonable doubt, it takes
twelve men by lot from the whole body of mature men. If any of
these twelve are proved to be under the influence of any special
interest or passion, that may either pervert their judgments, or
corrupt their motives, they are set aside as unsuitable for the
performance of a duty requiring such absolute impartiality and
integrity; and others substituted in their stead. When the utmost
practicable impartiality is attained on the part of the whole
twelve, they are sworn to the observance of justice; and their
unanimous concurrence is then held to be necessary to remove that
reasonable doubt, which, unremoved, would forbid the
government to lay its hand on its victim.

Such is the caution which the trial by jury both practises and
inculcates, against the violation of justice, on the part of the
government, towards the humblest individual, in the smallest
matter affecting his civil rights, his property, liberty, or
life. And such is the contrast, which the trial by jury presents,
to that gambler's and robber's rule, that the majority have a
right, by virtue of their superior numbers, and without regard to
justice, to dispose at pleasure of the property and persons of
all bodies of men less numerous than themselves.

The difference, in short, between the two systems, is this. The
trial by jury protects person and property, inviolate to their
possessors, from the hand of the law, unless justice, beyond a
reasonable doubt, require them to be taken. The majority
principle takes person and property from their possessors, at the
mere arbitrary will of a majority, who are liable and likely to
be influenced, in taking them, by motives of oppression, avarice,
and ambition.

If the relative numbers of opposing parties afforded sufficient
evidence of the comparative justice of their claims the
government should carry the principle into its courts of justice;
and instead of referring controversies to impartial and
disinterested men, to judges and jurors, sworn to do justice,
and bound patiently to hear and weigh all the evidence and
arguments that can be offered on either side, it should simply
count the plaintiff's and defendants in each case, (where there
were more than one of either,) and then give the case to the
majority; after ample opportunity had been given to the
plaintiffs and defendants to reason with, flatter, cheat,
threaten, and bribe each other, by way of inducing them to change
sides. Such a. process would be just as rational in courts of
justice, as in halls of legislation; for it is of no importance
to a man, who has his rights taken from him, whether it be done
by a legislative enactment, or a judicial decision.

In legislation, the people are all arranged as plaintiff's and
defendants in their own causes; (those who are in favor of a
particular law, standing as plaintiff's, and those who are
opposed to the same law, standing as defendants); and to allow
these causes to be decided by majorities, is plainly as absurd as
it would be to allow judicial decisions to be determined by the
relative number of plaintiffs and defendants.

If this mode of decision were introduced into courts of justice,
we should see a parallel, and only a parallel, to that system of
legislation which we witness daily. We should see large bodies of
men conspiring to bring perfectly groundless suits, against other
bodies of men, for large sums of money, and to carry them by
sheer force of numbers; just as we now continually see large
bodies of men conspiring to carry, by mere force of numbers, some
scheme of legislation that will, directly or indirectly, take
money out of other men's pockets, and put it into their own. And
we should also see distinct bodies of men, parties in separate
suits, combining and agreeing all to appear and be counted as
plaintiffs or defendants in each other's suits, for the purpose
of ekeing out the necessary majority; just as we now see distinct
bodies of men, interested in separate schemes of ambition or
plunder, conspiring to carry through a batch of legislative
enactments, that shall accomplish their several purposes.

This system of combination and conspiracy would go on, until at
length whole states and a whole nation would become divided into
two great litigating parties, each party composed of several
smaller bodies, having their separate suits, but all confederating
for the purpose of making up the necessary majority in each case.
The individuals composing each of these two great parties, would
at length become so accustomed to acting together, and so well
acquainted with each others' schemes, and so mutually
dependent upon each others' fidelity for success, that they would
become organized as permanent associations; bound together by
that kind of honor that prevails among thieves; and pledged by
all their interests, sympathies, and animosities, to mutual
fidelity, and to unceasing hostility to their opponents; and
exerting all their arts and all their resources of threats,
injuries, promises, and bribes, to drive or seduce from the other
party enough to enable their own to retain or acquire such a
majority as would be necessary to gain their own suits, and
defeat the suits of their opponents. All the wealth and talent of
the country would become enlisted in the service of these rival
associations; and both would at length become so compact, so well
organized, so powerful, and yet always so much in need of
recruits, that a private person would be nearly or quite unable
to obtain justice in the most paltry suit with his neighbor,
except on the condition of joining one of these great litigating
associations, who would agree to carry through his cause, on
condition of his assisting them to carry through all the others,
good and bad, which they had already undertaken. If he refused
this, they would threaten to make a similar offer to his
antagonist, and suffer their whole numbers to be counted against

Now this picture is no caricature, but a true and honest
likeness. And such a system of administering justice, would be no
more false, absurd, or atrocious, than that system of working by
majorities, which seeks to accomplish, by legislation, the same
ends which, in the case supposed, would be accomplished by
judicial decisions.

Again, the doctrine that the minority ought to submit to the will
of the majority, proceeds, not upon the principle that government
is formed by voluntary association, and for an agreed purpose, on
the part of all who contribute to its support, but upon the
presumption that all government must be practically a state of
war and plunder between opposing parties; and that in order to
save blood, and prevent mutual extermination, the parties come to
an agreement that they will count their respective numbers
periodically, and the one party shall then be permitted quietly
to rule and plunder, (restrained only by their own discretion,)
and the other submit quietly to be ruled and plundered, until the
time of the next enumeration.

Such an agreement may possibly be wiser than unceasing and
deadly conflict; it nevertheless partakes too much of the ludicrous
to deserve to be seriously considered as an expedient for the
maintenance of civil society. It would certainly seem that
mankind might agree upon a cessation of hostilities, upon more
rational and equitable terms than that of unconditional
submission on the part of the less numerous body. Unconditional
submission is usually the last act of one who confesses himself
subdued and enslaved. How any one ever came to imagine that
condition to be one of freedom, has never been explained. And as
for the system being adapted to the maintenance of justice among
men, it is a mystery that any human mind could ever have been
visited with an insanity wild enough to originate the idea.

If it be said that other corporations, than governments,

Facebook Google Reddit Twitter Pinterest