LECTURE XXXIX.

Continuation of the commentary on Magna Charta.

The twenty-third chapter of Magna Charta prohibits fish weires in rivers, which are great annoyances to navigation, and the free liberty of fishing; and which have stood their ground in spite of all the laws that can be made against them. The next relates to the inferior courts of Lords of Manors, and to writs of Præcipe in capite; which having gone into disuse, with the feudal tenures, I shall pass them over. The twenty-fifth orders, that measures and weights should be one and the same through the whole kingdom; witness the difference between Troy weight and Averdupois; the wine gallon and ale gallon. Established customs, which of necessity must come into daily practice, are hard to be rooted out by positive laws; and indeed it is more prudent to let them continue. For the confusion that such an alteration of things in daily or hourly practice would occasion, would be more detrimental, for a considerable time at least, than the uniformity intended to be introduced would be attended with advantage[396].

The twenty-sixth is concerning the writ De odio et atia, that is, of hatred and malice; which, though not abolished, hath long since been antiquated; but, as it was an antient provision for restoring the liberty of the subject, I shall take some notice of it. It was a maxim of the common law, that no man imprisoned for any offence, which, if proved, would touch his life or members, could be bailed out but by the supreme criminal court, the King’s Bench; which, upon danger of death, or such other special causes as appeared sufficient to them, had that power. Hence, in those unsettled and oppressive times, it became a practice for malicious persons to have a man clapped up in prison for a capital offence, without either indictment or appeal brought against him; and there he was of necessity to lie, until the justice in eyre came into the county to deliver the gaols, which regularly was but once in seven years; to avoid this hardship, the writ we are now speaking of was invented, and issued out from time to time, as occasion required, out of the Chancery. Besides, by this chapter of Magna Charta, it is ordered to be granted without any purchase or reward; whereas, before, all the original writs were purchased at the price the chancellor pleased to set on them, which was a grievous oppression. It ordered the sheriff to make inquisition in the county court, by the oath of a jury, whether the imprisonment proceeded from malice or not. If they found it did, upon its return, the person accused had a right to a writ, ordering the sheriff to bail him by twelve manucaptors, or securities. But, this was only where there was no indictment, or appeal; for these were accusations of record, and therefore the finding the charge malicious in the county court, which was no court of record, could not avail against them. This, writ has gone into disuse, since justices of gaol-delivery have continued to go into every county twice a year; a proceeding which has evidently superseded the necessity of it[397].

The twenty-seventh chapter restrains the unjust practice in the king, of arrogating to himself the wardship of his socage or burgage tenants, where they held lands by military service from others, his subjects. The whole military system hath since been dissolved by act of parliament, and therefore it will be unnecessary for me to explain or enlarge upon the nature of the mischief complained of in this chapter. The next forbids any judge or officer of the king to oblige a man to wage his law, that is, swear to his innocence, except in a cause where a suit was instituted against him; but wager of law, being now totally fallen into disuse, I hasten to the twenty-ninth chapter, the corner-stone of the English liberties, made in affirmance of the old common law[398].

By the bare reading of this chapter we may learn the extravagances of John’s reign, which it was intended to redress. It consists of two parts. The first runs thus: Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, de libero tenemento suo, vel libertatibus vel liberis consuetudinibus suis, aut utlagetur aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittimus, nisi per legale judicium parium suorum, vel per legem terræ. First, then, to see to whom this act extends: the words liber homo, in antient acts of parliament, is, in general, rightly construed freeholders, and so it means here, in the second branch which prohibits disseisins; for none but a freeholder is capable of being disseised, no others being said to have a seisin of land. But it must not, throughout the whole of this act, be confined to this limited sense. The first branch speaks of the restraint of liberty; the third, of unjust outlawries; the fourth, of unjust banishment; the fifth, of any kind of destruction, or wrongs; which, offered to an innocent person, are against the natural rights of mankind, and therefore, the remedy must extend to all: and so it hath always been understood; for women are included in it, and so are villeins, for they are free men against all but their lord.

Let us next consider the end of this part, which is an exception running through the whole; nisi per legale judicium parium suorum, vel per legem terræ. That is, by the common law, which doth not, in all these cases, require a trial by peers; a thing indeed impossible, where the party doth not appear; in which case there is a necessity of proceeding to judgment another way. Coke observes, the words legale judicium parium suorum include the trial both of lords and commons, the finding of the latter being upon oath, and called Veredictum, and in which all must be unanimous; wherein it differs from the trial of lords, for they find not upon oath, but upon honour; and it is not necessary that all should agree, the majority, provided that majority consists of twelve, being sufficient[399].

Upon this a question may be put, who are the peers of a woman of quality? If she be noble by blood, that is, a peeress, (for I speak not of the nobility by courtesy, which is merely nominal) there is no doubt but the barons and other noblemen; if she be ennobled by marrying a peer, she becomes in law one person with her husband, and therefore must have the same peers with him, which right continues after her husband’s death, unless she marries a commoner; for then, being one person with him, she becomes a commoner; whereas a peeress, in her own right, marrying a commoner, forfeits not her dignity, though she becomes one person with him. She was not ennobled by her own act, and therefore, by no act of her own can destroy that nobility she has by the gift of God, or the king, by means of her blood, which she cannot alter.

Two exceptions, however, there are to the rule of every Englishman’s being tried for offences by his peers; but neither of them against the purport of this statute. First, the statute speaks in the disjunctive, per legale judicium parium suorum, aut per legem terræ: now the lex terræ, the common law, in the universal practice of it, allows these exceptions; nor will they be found to be against the letter; for the words are nec super eum ibimus, nec super eum mittemus, speaking in the person of the king; which shews that it is meant of the accusation or other suit of the king. Now these exceptions are not at his suit. One of these exceptions I mentioned in a former lecture. It is where a commoner is impeached by the commons in parliament; and the reason I then gave, is, I think, plain and satisfactory, that every jury that could be summoned is supposed a party to the charge brought by their representatives, and therefore, as the man is accused as an enemy to the king by the body of the people, that there may not be a failure of justice, the lords, as the only indifferent persons, must be the judges.

The other exception may seem more extraordinary. It is that a lord of parliament appealed, that is, accused of a crime, by a private person, not for the satisfaction of public justice, but of his own private wrong, shall not be tried by his peers, but by a jury of commoners. When this law was introduced, the lords were few in number, immensely rich and powerful, linked together frequently by alliances, almost always by factions. In this towering situation, they looked down on the lower ranks with disdain; frequently injured and oppressed them; and little prospect would the poor commoner have of redress, were the criminal to be tried by those of his own rank, several of them his relations, most of them liable to be suspected of the same offences; especially, as the law will not allow a lord to be challenged. Neither did the lord run any extraordinary risk of being unjustly condemned. The lower rank of people in all countries and ages have been used to look with respect on persons possessed of great wealth and power, invested with titles of honour, and dignified by blood of an antient descent. But, in those military ages, such veneration was highly encreased by that valour and personal bravery, which distinguished every one of the nobility, and than which no virtue is more apt to captivate, in general, the hearts of mankind. Besides, that the lord had his advantage of challenging suspected jurors; whereas, if tried by his peers, he had not such privilege of exception, though they were ever so notoriously his enemies. Every commoner almost, how great soever, was, in those days, under the influence of some one or other of the lords, and there could be little doubt but that influence would be exerted, and successfully too, unless the guilt was too clear and evident.

It may here be asked, When a civil suit is depending between a lord and a commoner, how the issue is to be tried, whether by the lords alone, or by commoners only, or by a jury composed of an equal number of each; in the same manner, as, when an alien is tried, it is by a jury half natives, half aliens? The answer is, it shall be tried by a jury of commoners; only, on account of the dignity of the lord, there must be a knight on the jury. I need not enlarge on the reason, as it is the same with the former, the lesser danger of partiality.

I now come to the other part of the disjunctive, aut per legem terræ; and it will be necessary to point out in general (for to descend into particulars, would carry me a great deal too far) the principal cases, where this lex terræ supersedes the trial per pares. First, then, if a man accused of a crime pleads guilty, so that there is no doubt of the fact, it would be an absurd and useless delay to summon a jury, to find what is already admitted: accordingly, by the lex terræ judgment is given on the confession. So in a civil action, if the defendant confesses the action, or if he appears, and afterwards, when he should defend himself, makes default, and will not plead (which case is equivalent to confession) no jury is requisite. So, if both parties plead all the matters material in the case, and a demurrer is joined, that is, the facts agreed on both sides, and only the matter of right, depending on the facts already allowed, in contest, the judges shall try by demurrer, and give judgment according to law without a jury. The general rule is, that a jury shall try facts, and the judges the law; for it would carry a face of absurdity to expect from a common, or indeed, from any jury, a decision of a point of law that is controverted between the lawyers of the plaintiff and defendant, who have made that science their particular study. Besides, as the law inflicts so heavy a punishment on jurors who give a false verdict, it would be the utmost cruelty to force men unpractised in law to run such a hazard, where it must be supposed an equal chance, at least, they may mistake. The same dangers that the jurors would run by mistaking the law, hath, in points complicated both of law and fact, introduced special verdicts, that is, the finding of all the facts by the jury, and the leaving the matter of right to be judged by the court, who best know the law: but this by way of digression.

All the proceedings of courts to bring causes to a hearing previous to the impannelling a jury, and the carrying judgments into execution, are per legem terræ, or, as my Lord Coke expresses it, the due process of the law is lex terræ. The inflicting of punishment by the discretion of courts for all contempts of their authority, without the intervention of a jury, is also, I think part of the lex terræ, and founded in the necessity of enforcing due respect and obedience to courts of justice, and supporting their due dignity. The outlawing a person who absconds, and cannot be found, so as to oblige him to answer a charge against him, whether civil or criminal, is one of these proceedings per legem terræ without a jury; of which, as I have now occasion, it will not be amiss to give a short account, as it is in daily practice[400].

By the very antient law of England, the consequence of outlawry was very troublesome. Not only a seizure of the person, lands and goods, was lawful, but he was looked upon, not, merely, as one out of the protection of the law, but also as a publick enemy; for whoever met him had a right to slay him. This barbarous law undoubtedly proceeded hence, that no person was then ever outlawed but for a felony; that is, a crime whose punishment was death; but it was a most absurd thing to allow every private person to execute the offender, who by refusing to answer has confessed himself guilty: and the absurdity became more glaring, when, about Henry the Third’s time, process of outlawry began to be extended to all trespasses committed vi et armis, when the consequences were so dreadful. Such extension seems surprising; yet the turbulent condition of the times will, in some measure, account for it; when, under pretence of dormant titles, forcible possessions, not without frequent bloodshed and murders, were daily taken by the adherents of the king or barons, as their respective parties prevailed. But when the times grew peaceable, this bloody maxim wore out, and in the beginning of Edward the Third’s reign, it was resolved by all the judges, that the putting any man to death, except by the sheriff, and even by him without due warrant in law, however outlawed and convicted, was murder; and since the forementioned times, as the number of people encreased, and the opportunities of concealment and absconding along with them, it has been found necessary to grant the process of outlawry in many civil actions.

I shall briefly point out the proceedings therein, to shew the abundant care the law of England takes, on the one hand, to do justice to the plaintiff, if the defendant absconds, and will not appear; and, on the other, that the defendant may have all possible opportunity of notice before the outlawry be pronounced against him. First, there issue three writs successively, to take the body of the defendant, if found in his bailywick or county, and to bring him to answer. The first is called a capias, from that mandatory word in the writ. When the sheriff cannot find him in his bailywick, he returns a non est inventus on the back of the writ, on which there issues a second capias, called an alias, from its reciting that alias, or before this, the like writ had issued. On the same return of non est inventus to this (for if upon any of the processes the defendant is taken, or comes voluntarily in, so as to answer, the end is obtained, and no further proceedings to outlawry go on), the third writ issues called a pluries, because it recites the sheriff had been pluries, that is, twice before, commanded to take him. The sending these three writs, one after the other, in order to bring in the party is, I presume (as, undoubtedly many of the antient practices in our courts of law are) borrowed from the civil law; for by that law they issued three citations, at the distance of ten days, one after another, to call in the party to answer.

But as, upon a return of a non est inventus on the third capias, the personal apprehending the defendant may well be despaired of, the law proceeds another way; in order, if possible, to give him notice, that is by issuing the writ of exigent, so called from the Latin word exigere, to require, or call upon. This writ commands the sheriff to call the defendant in his county-court, where all the persons of the county are supposed to have business, or at least some that can inform him might have. The words are, We command you that you cause such a one to be required from county-court to county-court, until, according to the law and custom of our realm, he be outlawed if he doth not appear. And if he do appear, him to take, and safely keep, and so forth. Now the law and custom of the realm requires, in this case, that the party should be called on five different county-court days, one after another, before he can be outlawed; and these courts being held at the distance of four weeks from each other, the interval amounts to sixteen weeks, besides the time of the three previous capias’s; a time so abundantly sufficient, as it is scarce to be presumed possible a person living in the county should not have notice; and consequently, on his not appearing in the fifth court, the coroners of the county, whose duty it is, give judgment of outlawry against him.

Such is the care the common law takes to prevent outlawries by surprize. But the act of the thirty-first of Elizabeth in England, enacted here in the eleventh of James, had superadded another caution, namely three publick proclamations. The reason of this superadded caution was, I presume, on account of the dwindling of the business in the county-courts, and, in consequence, their being not so well attended. This writ, commanding the sheriff to make proclamation, issues with the exigent, and recites it, and the cause for which the proceeding to an outlawry is, and directs him to proclaim the party three several days; first in the county-court, secondly at the quarter-sessions, a court of more resort, and lastly on a Sunday immediately after Divine service, at the most usual door of the church of the parish, where the person dwelt at the time the exigent issued; or if no church, in the church-yard of the parish; or if no parish, at the nearest church, and all outlawries in personal actions, where these solemnities are not observed, are declared void.

I have been the more particular on this head, to shew the abundant care the law has taken in these proceedings, and to vindicate it from the common complaint, of outlawries being obtained surreptitiously, and without notice. I am sensible such complaints are generally without foundation; but if in any case they are just, the fault is not in the law, but in man, in the laws not being duly executed; and if we are to complain of the best laws, until they be in all cases perfectly and uprightly executed, we shall never cease complaining while human nature is what it is, weak and corrupt[401].