LECTURE XL.

Continuation of the commentary on Magna Charta.

Having mentioned the several kinds of proceeding to judgment without the intervention of juries, practised by the courts of common law, and authorised under the words of this statute, per legem terræ, it will be proper, before I quit this head, to say something of other kinds of courts which do not admit this method of trial; which, yet, have been received, and allowed authority in England; and whose proceedings, however different from those of the common law, are justified by the same words, per legem terræ. These are the courts ecclesiastical, maritime, and military.

If we trace back the origin of ecclesiastical jurisdictions, we shall find its source in that advice of St. Paul, who reproves the new christians for scandalising their profession, by carrying on law-suits against each other before heathen judges, and recommends their leaving all matters in dispute between them to the decision of the Ecclesiæ, or the congregation of the faithful. In the fervour of the zeal of these times, this counsel was soon followed as a law. The heathen tribunals scarce ever heard of any of their controversies. They were all carried before the bishop, who, with his clergy, presided in the congregation; and who, from the deference the laity paid them, became at length the sole judges, as, in after ages, the bishop became sole judge, to the exclusion of his clergy. These judges, however, being, properly speaking, only arbitrators, had no coercive power to enforce their judgments. They were obliged, therefore, to make use of that only means they had of bringing the refractory to submission, namely, excluding them from the rights of the church, and warning other Christians against their company, and indeed, it was an effectual one; for what could a Christian, despised and abhorred by the heathen, and shut out from the commerce of his brethren, do, but submit? Besides, if he was really a Christian, this proceeding seems founded on the words of the Apostle, “He that will not hear the ecclesia, the congregation, let him be unto thee as an heathen[402].”

Thus was excommunication the only process in the primitive church to inforce obedience, as it is in ecclesiastical courts at this day; though, considering the many petty and trifling occasions on which they are, of necessity, obliged to have recourse to these arms, having no other, and the many temporal inconveniencies it may be attended with, it has been the opinion of many wise and learned, as well as of many pious men, that it would not be unworthy the attention of the legislature to devise some other coercive means for the punishment of contempts, and to restrain excommunication to extraordinary offences only. Though, if we consider that the jealousy which the temporal courts, and the laity in general, so justly conceived of these judicatures in the time of popery, hath not even yet entirely subsided, there is little prospect that this or any other regulation, to amend their proceedings, and others they do want, will be attempted.

When the empire became Christian, these courts and their authority were fully established in the minds of the people. However, that the temporal courts might not be stripped of their jurisdiction, and churchmen become the sole judges, a distinction was made between matters of spiritual and temporal cognizance; not but several matters, originally and naturally temporal, were allowed, by the grants of the emperors, to the ecclesiastical jurisdiction; and even, of such as were not allowed them, they might take cognizance, if both the parties agreed thereto. This was called proroguing the jurisdiction, that is, extending, by the consent of the litigants, its power to matters that do not properly belong to it. A practice our law has most justly rejected; for it would introduce confusion, and a perpetual clashing of courts, if it was in the power of the private persons to break down the fences that the constitution has so wisely erected ta keep every judicature within its strict bounds. And indeed this practice was one of the great engines the churchmen made use of, in their grand scheme of swallowing up all temporal jurisdiction and power. The method of trial in these courts was by the depositions of witnesses; and upon them the judge determined both the law and the fact.

Trials by jury were entirely unknown to the Romans, though indeed their centumviral court, in the early times, bore some resemblance to them; and even when the northern nations, who were the introducers of the trial per pares, became Christians, the ecclesiastical courts on the continent proceeded in their old manner. But in England, during the times of the Saxons, both spiritual and temporal courts, though their business was distinct, sat together, and mutually assisted each other, as I observed under the Conqueror’s reign. But whether the matter of fact in ecclesiastical causes was then tried by a jury, I will not pretend to affirm, though, from the peculiar fondness the Saxons had, above the other northern nations, for that method of trial, it may seem not improbable. However, this is certain, that from the time William, who, to gratify the court of Rome, and to shew his own political purposes, separated the courts, the proceedings of the spiritual ones in England have been conformed to the practice of those courts abroad, and to the canon law. The alteration, if indeed there was any, was sufficiently authorised by the king and pope; and indeed as all the bishoprics were filled by Normans, they knew not how to proceed in any other manner. By the time of John, the proceedings of these courts, and their trial of causes without jury, had been universally fixed, and received as a part of the lex terræ, and, as such, is confirmed by the words of this statute.

The next court that the law of the land allows to proceed to sentence without a jury is the Court of Admiralty, and that for absolute necessity; for as its jurisdiction is not allowed as to any thing that happens within the body of a county, except in one particular instance, contracts for sailors wages, but extends only to things done on the sea, or at most to contracts made in foreign countries (though this last is denied by the lawyers of our days to belong to them) there is no place from whence a jury can come. For the jury of the county, where the cause of suit arose, are the triers, but here, it arose in none. Besides, the great excellency of this method of trial consists in this, that the jury, from their vicinity, have opportunities of knowing something of the nature of the case, and of being acquainted with the characters and credit of the witnesses, neither of which can be supposed in this case. In this court the judge determines both matter of law and fact.

The same was the case of the Constable’s and Marshal’s Court, formerly of great power, but now next to antiquated. Its jurisdiction was, first, martial law, over the soldiers and attendants of the camp. Now the trial of offenders in this kind, by a jury, whether taken out of the army, or out of the county, if in the kingdom, would have effectually destroyed that strict subordination, which is the soul of military enterprises. Secondly, they had the trials of treasons and felonies done by the king’s subjects in foreign kingdoms. Here there could be no trial by jury, for the same reason as given already for the Court of Admiralty. The last part of their jurisdiction was as to precedence, arms, and marks of dignity, which flowing immediately from the grace of the crown, the sole disposer and judge of them, were not supposed to be in the cognizance of jurors, but proper to be determined by the king’s judges, who had the keeping of the memorials of his grants in this kind. Besides, these honorary distinctions are not local, but universal through the realm; so that there is no particular county from whence a jury should come[403].

Such are the reasons assigned why these two courts proceed per legem terræ, and not by juries; but, to speak my own opinion truly, when I consider that their methods are formed upon the proceedings of the civil law, I suspect a farther design. The discovery and revival of this law happened in the reign of our Stephen. I have already had occasion to observe how greatly the princes, in every part of Europe, were flattered by the tempting bait of unlimited power it set before them, and particularly the kings of England, who were the first that set out in pursuit of this delusive object; and that their being less successful than others was, very probably, owing to their beginning the career too early. When I consider then that these two courts, where trials by juries prevail not, dealt in matters that were of the resort of the prerogative, and that, in consequence, the modelling of them was left to the king; when I see all the parts of these models taken from the imperial law; when I reflect on the notoriously avowed and unjust preference the weakest of them gave to that against the common law, and the kind patronage the wisest and most moderate of them shewed to it, and its possessions, down to the reign of Charles the Second, I cannot help suspecting a deeper design. And, indeed, the common lawyers seemed to take the alarm, and decried and despised every part of this law, though most of it is founded on good reason, merely out of the apprehensions, that giving it the least countenance, might, in time, open a door for the absolute authority of the prince, and the rapaciousness of his fisc or treasury, and thereby overturn the constitution.

But there are other courts, besides those already named, that proceed upon the deposition of witnesses, and not by jury, I mean the courts of Equity; which, in imitation of the civil and canon laws, oblige a party to answer upon oath to his adversary’s charge. This practice, though not allowed by common law, is founded in very good reason. For, as the proper business of a court of equity is to detect fraud and surprize, these things being done in private, and endeavoured to be as much concealed as possible, it is but reasonable that the plaintiff should have power to sift the conscience of his adversary, and to examine not to a single point, as the issues at common law are, but to many separate facts, from which, taken together, the fraud, if any, may appear. Such matters, therefore, being of nice discussion, and of a complicated nature, are not fit for the decision of a jury, and indeed would take up more time than they could possibly employ in the examination. The court, therefore, go upon depositions, and judge both of the law and fact. However, if a matter of fact, necessary for the decision of the cause, appears on the deposition doubtful; or if any matter arise which these courts have no power to try, they direct an issue, wherein the point is tried by jury, in a court of common law; and thus, these courts have the advantage of both methods of trial, as well that of the civil, as that used by the common law; namely the oath of the party, and depositions from one, and the trial by jury from the other.

This method, however, of trial by deposition, has been objected to, as productive of enormous expence and delays; and it cannot be denied, that, as affairs are now conducted, there is too much reason for the objection. Yet to this it may be answered, that if examiners were more careful, and would set down nothing but what is evidence, and were the rules of court, to cut off delays, always strictly inforced, the damage arising from both these heads would be considerably lessened. To cut off all delays, and to reduce the proceedings to as summary a method as that of the courts of common law would, (considering the matters they are conversant about are of different proof, and require the most acute examination) instead of preventing frauds in most instances, by a hurried manner of trial, serve to defend and encourage them. The policy of the common law was to reduce the matter in question to a single fact, which the jury might, with ease and convenience, determine within a convenient time. And it must be owned that the lawyers and judges of latter days, by admitting the trial of titles to lands in personal actions, have deviated much from the simplicity of the law, and weakened the excellence of the trial by jury. The present practice, of determining the title to land by an action of trespass, will serve as an instance; where the enquiry is, whether a man’s entering upon lands was a trespass or not; if he had right to enter in, it was no trespass; if he had not, it was otherwise. Now, as the right may depend upon twenty different matters of fact, beside matters of law, all which must be settled and weighed, before the bare question of trespass can be determined, it is easy to see to what lengths trial by juries may be now spun; to how short a time the examination of the most material points must be confined; how imperfect, consequently, the examination must often be; to say nothing of the danger of a jury’s erring when both body and mind is wearied out with long attendance, and the attention consequently enfeebled.

If it be asked, how came this deviation, which has been attended with so many inconveniencies? The true answer is the best, that it sprung from the advantage of practitioners, and the litigiousness of suitors. By the common law, no man could bring two actions of the same nature for the same thing. If I am entitled to the possession of lands, I may bring my writ of entry, or an assize, to recover it; but if I am foiled, I cannot bring a second. So, if I am entitled to the propriety of the land, I may bring my writ of right, and if I recover not therein, my right is gone for ever. The litigiousness of suitors, who had a mind to gain a method of trying the same thing over and over again, where they miscarried, introduced this method I am speaking of. For every new entry was a new trespass, and could not be said to have been tried before; though whether it was a trespass or not, depends on what had been tried before, and the avarice of practitioners, who desired frequent suits, encouraged it. But when once it was allowed, notwithstanding all the complaints of Coke and his co-temporary judges, it became universally followed, and is now so established, and the higher actions so much out of use, that I question whether there is a lawyer living who would be able, without a great deal of study, to conduct a cause in one of those antiquated real actions. The inconveniencies of these frequent trials introduced, for the obviating them, a new practice, the applying to the court of chancery, after two or more verdicts consonant to one another, for an injunction to stop farther proceedings at law; which, though a new, was become a necessary curb, after the common law-courts had allowed the former method.

Besides these courts already mentioned, there are many other judicatories, which, by particular acts of parliament, have particular matters entrusted to their determination, without the intervention of juries; as the several matters determinable summarily by one or more justices of the peace; the affairs of the revenue by the commissioners; and suits by civil bills for limited sums by judges of assize; though in these last the presiding judge may, and ought, in matters of difficulty, to call a jury to his assistance; and it must be owned in this poor country the alteration of the law in this last particular, has been attended with very good consequences. The expediency of the two former changes, indeed, has been much disputed; but that being a question of politicks, not of law, I shall not enter into it.

Thus much I have observed, in a summary way, concerning the several methods of trial, differing from that per pares, which are authorised by these words of Magna Charta, per legem terræ.

I shall next proceed to the point of the personal liberty of the subject; but as it will be proper to take all that together, in one view, I shall here conclude the present Lecture.