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.
LECTURE XLI.
_Continuation of the commentary on Magna Charta._
Having explained the import of the words _per legale judicium parium
suorum, vel per legem terræ_, which refer to, and qualify all the
preceeding parts, it will be proper to mention those preceeding
articles, and to make some observations upon them. They then consist of
six different heads. The first relates to the personal liberty of the
subject; the second to the preservation of his landed property; the third
is intended to defend him from unjust outlawry; the fourth to prevent
unjust banishment; the fifth prohibits all manner of destruction; and the
design of the sixth is to regulate criminal prosecutions at the suit of
the king. I shall briefly treat of all these particulars in the order in
which they stand.
The first clause tending to secure personal liberty, runs in these words;
_Nullus liber homo capiatur vel imprisonetur_. _Liber homo_, as I before
observed, here extends to all the subjects, and is not to be taken in
its more restrained sense, of a freeholder. We see the words are not
barely against wrongful imprisonment, but extend to arresting, or taking,
_nullus capiatur_. This act extends not only to prevent private persons,
particularly the great men, from arresting and imprisoning the subjects,
but extends also to those from whom, on account of their extraordinary
power, the greatest danger might be apprehended, I mean the king’s
ministerial officers, his council, nay himself, acting in person. “No
man,” (says my Lord Coke, commenting on this point,) “shall be taken,
that is restrained of liberty, by petition or suggestion to the king,
or his council; unless it be by indictment, or presentment of good and
lawful men, where such deeds be done.” For in that case it is _per legale
judicium parium_; though an indictment found, or a presentment made by
a grand jury, in one sense, cannot properly be called _judicium_, as it
is not conclusive; but the fact must be after tried by a petty jury;
yet for the purpose of restraining and securing a person accused upon
record, that he may be forthcoming on his trial, it is _judicium parium_.
Otherwise the most flagrant offenders might escape being tried and
convicted[404].
In the fifteenth chapter of Westminster the first, enacted in the third
year of Edward the First, and ordained to ascertain for what offences a
man might be detained in prison, and to make effectual provision for the
bailing out persons upon their giving security to abide a trial, those
accused of the slighter offences, persons detained _per maundement de
roy_ by the command of the king, are mentioned as not bailable; and this
may seem to contradict the law I have now laid down. Yet, when rightly
understood, it doth not. For as judge Gascoigne rightly said, the king
hath committed all his power judicial to divers courts, some to one,
some to another; and it is a rule in the construction of statutes, that
when any judicial act is referred to the king, it is to be understood
to be done in some court of justice, according to law. The command of
the king, therefore, doth not mean the king’s private will, but a legal
command, issued in his name, by his judges, to whom his judicial power is
intrusted. Accordingly, Sir John Markham, chief justice, told Edward the
Fourth, that the king could not arrest any man for suspicion of treason,
or felony, as any of his subjects might; and he gave a most excellent
reason for it: Because, says he, if the king did wrong, the party could
not have his action. In the sixteenth of Henry the Sixth, it was resolved
by the whole court, That if the king command me to arrest a man, and I do
arrest him, he shall have his action of false imprisonment against me,
although I did it in the king’s presence.
The maxim, then, is, that no man shall be taken and committed to prison,
but by _judicium parium, vel per legem terræ_, that is, by due process
of law. Now to understand this, it is necessary to see in what cases a
man may be taken before presentment or indictment by a jury; and in the
enquiry it is to be considered, that process of law, for this purpose,
is two-fold, either by the king’s writ, to bring him into a court of
justice, to _answer_, or by what is called _a warrant in law_. And this
is, again, two-fold, _indeed_, by the authority of a legal magistrate,
as a Justice of Peace’s _mittimus_, or that which each private person is
invested with, and may exercise.
First then, for making a _mittimus_ a good warrant, it is previously
necessary, that there should be an information on oath, before a
magistrate having lawful authority, that the party hath committed an
offence; or at least of some positive fact, that carries with it a strong
and violent presumption that he hath so done: Next, then, the _mittimus_
must contain the offence in certain, that it may appear whether the
offence charged is such an one as justifies the taking; whether it is
bailable, or such as the law requires the detention in prison. A warrant
without the cause expressed, is a void one, and imprisonment on it
illegal, and so it was adjudged in Charles the First’s reign, though done
by the secretaries of state, by the king’s authority, with the advice of
his council; thirdly, the warrant must not only contain a lawful cause,
but have a legal conclusion, _and him safely to keep until delivered by
law_; not until the party committing doth farther order, for that would
be to make the magistrate, who is only _ministerial_, _judicial_, as to
the point of the liberty of the subject; from whence might redound great
mischief to the party on one hand, or to the king and public on the
other, by letting an offender escape.
Let us see how far the law warrants a private person to take another,
and commit him to prison. First, then, if a man is present when another
commits treason, felony, or notorious breach of the peace, he hath a
right instantly to arrest and commit him, lest he should escape if any
affray be made, to the breach of the peace, any man present may, during
the continuance of the affray, by a warrant in law, in order to prevent
imminent mischief, restrain any of the offenders; but if the affray is
over, so that the danger is perfectly past, there is a necessity of
an information, and an express warrant; so, if one man wounds another
dangerously, any person may arrest him, that he be safely kept, until it
be known whether the party wounded shall die or not. Suspicion, also,
where it is violent and strong, is, in many cases, a good cause of
imprisonment. Suppose a felony done, and the hue and cry of the country
is raised, to pursue and take the offender, any man may arrest another
whom he finds flying; for what greater presumption of guilt can there
be, than for a person, instead of joining the hue and cry as his duty
prompts him, to fly from it? His good character or his innocence, how
clear it may after appear, shall not avail him. His imprisonment is
lawful.
Another lawful cause of arresting and imprisoning upon suspicion is, if
a treason or felony is certainly done; and though there is no certain
evidence against any person as the perpetrator, yet if the public voice
and fame is, that A is guilty, it is lawful for any man to arrest and
detain him. So, if a treason or felony be done, and though there be no
public fame, any one that suspects another for the author of the fact may
arrest him. But let him that so doth, take care his cause of suspicion
will be such as will bear the test; for otherwise he may be punishable
for false imprisonment. The frequent keeping company with a notorious
thief, that is, one that had been convicted, or outlawed, or proclaimed
as such, was a good cause of imprisonment. Lastly, a watchman may arrest
a night-walker at unseasonable hours by the common law, however peaceably
he might demean himself; for strolling at unusual hours was a just
cause of suspicion of an ill intent. With respect to persons arrested
by private authority, I must observe, that the law of England so abhors
imprisonment, without a certain cause shewn, that if there is not an
information on oath sworn before a magistrate, and his commitment thereon
in a competent time, which is esteemed twenty-four hours, the person is
no longer to be detained[405].
Such is the law of England with respect to the personal liberty of the
subject. Let us now see the remedies the law provides for those that
suffer by its being infringed: the writ of _odio & atia_ I have already
mentioned, and that it is long since out of use: the most usual way then
to remedy this, and to deliver the party, is the writ of _habeas corpus_,
in obedience to which, the person imprisoned is brought into court by the
sheriff, who is the keeper of the prison, together with the cause of his
caption and detention, that the court may judge whether the first taking
was lawful; and if it was, whether the continuance of the imprisonment is
such; and this is brought in the name of the party himself imprisoned.
The next is the writ _de homine replegiando_, of replevying a man, that
is, delivering him out upon security, to answer what may be objected
against him. This is most commonly used when a person is not in the
legal prison, but perhaps carried off by private violence, and secreted
from his friends, and therefore may be brought by a near friend having
interest in the person’s liberty, as by a father, or mother, for their
child, or a husband for his wife. These are the remedies for restoring a
person unjustly deprived of liberty, to the enjoyment of that invaluable
blessing. But very deficient would these remedies be, if there were no
provisions made for the punishment of a person offending against his
natural right, nor any relief for the person unjustly aggrieved.
For the point of punishment, an indictment will lie at the king’s
suit, against the false imprisoner, grounded on this statute, for the
vindication of the public justice of the nation; and the party, if found
guilty, shall be punished by fine and imprisonment. For the relief of the
person injured, he may have an action of false imprisonment, wherein he
shall recover damages; or an action on the case grounded on this statute,
wherein he shall have the same remedy. For Coke observes on this statute,
that it is a general rule, where an act of parliament is made against any
public mischief or grievance, there is either given expressly, or else
implied by the law, an action to the party injured.
Such is the antient original law of England with respect to liberty;
and so different from that of other nations of Europe, at least, as
their laws are understood and practised at present, where a man may be
imprisoned without knowing his crime or accuser, or having any means,
except of humble petition, to be brought to his trial. It is therefore no
wonder that the people on the continent envy much the situation of the
subjects of these islands, when they contemplate their own.