The question here arises, Whether the barons and people intended that those peers (the jury) should be mere puppets in the hands of the king, exercising no opinion of their own as to the intrinsic merits of the accusations they should try, or the justice of the laws they should be called on to enforce? Whether those haughty and victorious barons, when they had their tyrant king at their feet, gave back to him his throne, with full power to enact any tyrannical laws he might please, reserving only to a jury ("the country") the contemptible and servile privilege of ascertaining, (under the dictation of the king, or his judges, as to the laws of evidence), the simple fact whether those laws had been transgressed? Was this the only restraint, which, when they had all power in their hands, they placed upon the tyranny of a king, whose oppressions they had risen in arms to resist? Was it to obtain such a charter as that, that the whole nation had united, as it were, like one man, against their king? Was it on such a charter that they intended to rely, for all future time, for the security of their liberties? No. They were engaged in no such senseless work as that. On the contrary, when they required him to renounce forever the power to punish any freeman, unless by the consent of his peers, they intended those peers should judge of, and try, the whole case on its merits, independently of all arbitrary legislation, or judicial authority, on the part of the king. In this way they took the liberties of each individual—and thus the liberties of the whole people—entirely out of the hands of the king, and out of the power of his laws, and placed them in the keeping of the people themselves. And this it was that made the trial by jury the palladium of their liberties.
The trial by jury, be it observed, was the only real barrier interposed by them against absolute despotism. Could this trial, then, have been such an entire farce as it necessarily must have been, if the jury had had no power to judge of the justice of the laws the people were required to obey? Did it not rather imply that the jury were to judge independently and fearlessly as to everything involved in the charge, and especially as to its intrinsic justice, and thereon give their decision, (unbiased by any legislation of the king,) whether the accused might be punished? The reason of the thing, no less than the historical celebrity of the events, as securing the liberties of the people, and the veneration with which the trial by jury has continued to be regarded, notwithstanding its essence and vitality have been almost entirely extracted from it in practice, would settle the question, if other evidences had left the matter in doubt.
Besides, if his laws were to be authoritative with the jury, why should John indignantly refuse, as at first he did, to grant the charter, (and finally grant it only when brought to the last extremity,) on the ground that it deprived him of all power, and left him only the name of a king? He evidently understood that the juries were to veto his laws, and paralyze his power, at discretion, by forming their own opinions as to the true character of the offences they were to try, and the laws they were to be called on to enforce; and that "the king wills and commands" was to have no weight with them contrary to their own judgments of what was intrinsically right.[13]
The barons and people having obtained by the charter all the liberties they had demanded of the king, it was further provided by the charter itself that twenty-five barons should be appointed by the barons, out of their number, to keep special vigilance in the kingdom to see that the charter was observed, with authority to make war upon the king in case of its violation. The king also, by the charter, so far absolved all the people of the kingdom from their allegiance to him, as to authorize and require them to swear to obey the twenty-five barons, in case they should make war upon the king for infringement of the charter. It was then thought by the barons and people, that something substantial had been done for the security of their liberties.
This charter, in its most essential features, and without any abatement as to the trial by jury, has since been confirmed more than thirty times; and the people of England have always had a traditionary idea that it was of some value as a guaranty against oppression. Yet that idea has been an entire delusion, unless the jury have had the right to judge of the justice of the laws they were called on to enforce.
SECTION II.
The Language of Magna Carta.
The language of the Great Charter establishes the same point that is established by its history, viz., that it is the right and duty of the jury to judge of the justice of the laws.
The chapter guaranteeing the trial by jury is in these words:
"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ."[14]
The corresponding chapter in the Great Charter, granted by Henry III., (1225,) and confirmed by Edward I., (1297,) (which charter is now considered the basis of the English laws and constitution,) is in nearly the same words, as follows:
"Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de libero tenemento, vel libertatibus, vel liberis consuetudinibus suis, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terræ."
The most common translation of these words, at the present day, is as follows:
"No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or outlawed, or exiled, or in any manner destroyed, nor will we (the king) pass upon him, nor condemn him, unless by the judgment of his peers, or the law of the land."
"Nec super eum ibimus, nec super eum mittemus."
There has been much confusion and doubt as to the true meaning of the words, "nec super eum ibimus, nec super eum mittemus." The more common rendering has been, "nor will we pass upon him, nor condemn him." But some have translated them to mean, "nor will we pass upon him, nor commit him to prison." Coke gives still a different rendering, to the effect that "No man shall be condemned at the king's suit, either before the king in his bench, nor before any other commissioner or judge whatsoever."[15]
But all these translations are clearly erroneous. In the first place, "nor will we pass upon him,"—meaning thereby to decide upon his guilt or innocence judicially—is not a correct rendering of the words, "nec super eum ibimus." There is nothing whatever, in these latter words, that indicates judicial action or opinion at all. The words, in their common signification, describe physical action alone. And the true translation of them, as will hereafter be seen, is, "nor will we proceed against him," executively.
In the second place, the rendering, "nor will we condemn him," bears little or no analogy to any common, or even uncommon, signification of the words "nec super eum mittemus." There is nothing in these latter words that indicates judicial action or decision. Their common signification, like that of the words nec super eum ibimus, describes physical action alone. "Nor will we send upon (or against) him," would be the most obvious translation, and, as we shall hereafter see, such is the true translation.
But although these words describe physical action, on the part of the king, as distinguished from judicial, they nevertheless do not mean, as one of the translations has it, "nor will we commit him to prison;" for that would be a mere repetition of what had been already declared by the words "nec imprisonetur." Besides, there is nothing about prisons in the words "nec super eum mittemus;" nothing about sending him anywhere; but only about sending (something or somebody) upon him, or against him—that is, executively.
Coke's