An Essay on the Trial by Jury. Lysander Spooner
beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum, et judicium parium suorum." That is, No one shall lose his estate,[22] unless according to ("secundum") the custom (or law) of our ancestors, and (according to) the sentence (or judgment) of his peers.
The evidence is therefore conclusive that the phrase per judicium parium suorum means according to the sentence of his peers; thus implying that the jury, and not the government, are to fix the sentence.
If any additional proof were wanted that juries were to fix the sentence, it would be found in the following provisions of Magna Carta, viz.:
"A freeman shall not be amerced for a small crime, (delicto,) but according to the degree of the crime; and for a great crime in proportion to the magnitude of it, saving to him his contenement;[23] and after the same manner a merchant, saving to him his merchandise. And a villein shall be amerced after the same manner, saving to him his waynage,[24] if he fall under our mercy; and none of the aforesaid amercements shall be imposed, (or assessed, ponatur,) but by the oath of honest men of the neighborhood. Earls and Barons shall not be amerced but by their peers, and according to the degree of their crime."[25]
Pecuniary punishments were the most common punishments at that day, and the foregoing provisions of Magna Carta show that the amount of those punishments was to be fixed by the jury.
Fines went to the king, and were a source of revenue; and if the amounts of the fines had been left to be fixed by the king, he would have had a pecuniary temptation to impose unreasonable and oppressive ones. So, also, in regard to other punishments than fines. If it were left to the king to fix the punishment, he might often have motives to inflict cruel and oppressive ones. As it was the object of the trial by jury to protect the people against all possible oppression from the king, it was necessary that the jury, and not the king, should fix the punishments.[26]
"Legale."
The word "legale," in the phrase "per legale judicium parium suorum," doubtless means two things. 1. That the sentence must be given in a legal manner; that is, by the legal number of jurors, legally empanelled and sworn to try the cause; and that they give their judgment or sentence after a legal trial, both in form and substance, has been had. 2. That the sentence shall be for a legal cause or offence. If, therefore, a jury should convict and sentence a man, either without giving him a legal trial, or for an act that was not really and legally criminal, the sentence itself would not be legal; and consequently this clause forbids the king to carry such a sentence into execution; for the clause guarantees that he will execute no judgment or sentence, except it be legale judicium, a legal sentence. Whether a sentence be a legal one, would have to be ascertained by the king or his judges, on appeal, or might be judged of informally by the king himself.
The word "legale" clearly did not mean that the judicium parium suorum (judgment of his peers) should be a sentence which any law (of the king) should require the peers to pronounce; for in that case the sentence would not be the sentence of the peers, but only the sentence of the law, (that is, of the king); and the peers would be only a mouthpiece of the law, (that is, of the king,) in uttering it.
"Per legem terræ."
One other phrase remains to be explained, viz., "per legem terræ," "by the law of the land."
All writers agree that this means the common law. Thus, Sir Matthew Hale says:
"The common law is sometimes called, by way of eminence, lex terræ, as in the statute of Magna Carta, chap. 29, where certainly the common law is principally intended by those words, aut per legem terræ; as appears by the exposition thereof in several subsequent statutes; and particularly in the statute of 28 Edward III., chap. 3, which is but an exposition and explanation of that statute. Sometimes it is called lex Angliæ, as in the statute of Merton, cap. 9, "Nolumus leges Angliæ mutari," &c., (We will that the laws of England be not changed). Sometimes it is called lex et consuetudo regni (the law and custom of the kingdom); as in all commissions of oyer and terminer; and in the statutes of 18 Edward I., cap.—, and de quo warranto, and divers others. But most commonly it is called the Common Law, or the Common Law of England; as in the statute Articuli super Chartas, cap. 15, in the statute 25 Edward III., cap. 5, (4,) and infinite more records and statutes."—1 Hale's History of the Common Law, 128.
This common law, or "law of the land," the king was sworn to maintain. This fact is recognized by a statute made at Westminster, in 1346, by Edward III., which commences in this manner:
"Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford, Greeting: Because that by divers complaints made to us, we have perceived that the law of the land, which we by oath are bound to maintain," &c.—St. 20 Edward III.
The foregoing authorities are cited to show to the unprofessional reader, what is well known to the profession, that legem terræ, the law of the land, mentioned in Magna Carta, was the common, ancient, fundamental law of the land, which the kings were bound by oath to observe; and that it did not include any statutes or laws enacted by the king himself, the legislative power of the nation.
If the term legem terræ had included laws enacted by the king himself, the whole chapter of Magna Carta, now under discussion, would have amounted to nothing as a protection to liberty; because it would have imposed no restraint whatever upon the power of the king. The king could make laws at any time, and such ones as he pleased. He could, therefore, have done anything he pleased, by the law of the land, as well as in any other way, if his own laws had been "the law of the land." If his own laws had been "the law of the land," within the meaning of that term as used in Magna Carta, this chapter of Magna Carta would have been sheer nonsense, inasmuch as the whole purport of it would have been simply that "no man shall be arrested, imprisoned, or deprived of his freehold, or his liberties, or free customs, or outlawed, or exiled, or in any manner destroyed (by the king); nor shall the king proceed against him, nor send any one against him with force and arms, unless by the judgment of his peers, or unless the king shall please to do so."
This chapter of Magna Carta would, therefore, have imposed not the slightest restraint upon the power of the king, or afforded the slightest protection to the liberties of the people, if the laws of the king had been embraced in the term legem terræ. But if legem terræ was the common law, which the king was sworn to maintain, then a real restriction was laid upon his power, and a real guaranty given to the people for their liberties.
Such, then, being the meaning of legem terræ, the fact is established that Magna Carta took an accused person entirely out of the hands of the legislative power, that is, of the king; and placed him in the power and under the protection of his peers, and the common law alone; that, in short, Magna Carta suffered no man to be punished for violating any enactment of the legislative power, unless the peers or equals of the accused freely consented to it, or the common law authorized it; that the legislative power, of itself, was wholly incompetent to require the conviction or punishment of a man for any offence whatever.
Whether Magna Carta allowed of any other trial than by jury.
The question here arises, whether "legem terræ" did not allow of some other mode of trial than that by jury.
The answer is, that, at the time of Magna Carta, it is not probable, (for the reasons given in the note,) that legem terræ authorized, in criminal cases, any other trial than the trial by jury; but, if it did, it certainly authorized none but the trial by battle, the trial by ordeal, and the trial by compurgators. These were the only modes of trial, except by jury, that had been known in England, in criminal cases, for some centuries previous to Magna Carta.