Chapter XVII: Front Matter (17)

The king now had the custody, as also the profits, by a legal title for a year and a day, unless the lord pleased to compound with him, and so intitle himself to the immediate possession. But this did not satisfy the greediness of the officers of the crown. It was easy to gather the profits until very near the time the king’s right expired, and then, for a week or fortnight before it was out, they had it in their power to commit waste enough, if the lord, who was intitled by the escheat, did not buy them out. This was certainly against the spirit of the law whereof we are speaking, which was intended to give the king a real profit, instead of a right destructive to the community in general; but the waste was not prohibited expressly, and this was pretext enough for these officers to exact composition for not doing it within the year. It was accordingly claimed and paid, and accounted for as due to the king, on that old maxim, That general laws do not change the prerogative royal, but by express words. This was the doctrine and practice in the courts of the third Henry, and convenient enough for him, who was always indigent. But what was the opinion of the lawyers of that age, we may learn from Bracton, Britton, and the author of Fleta; the first of which wrote in the latter end of this reign, and the other two in the reign following. Bracton says expressly, that “the king’s power over the lands of felons convicted, was because he had a right to throw down the buildings, unroot the gardens, and plow up the meadows; but because such things turned to the great damage of the lords, it was provided, for common utility, that such houses, gardens, and meadows should remain, and that the king for this should have the advantage of the whole land for a year and a day, and so every thing should return entire to the lord. Then he goes on, but now both is demanded, namely, a fine for the term, likewise for the waste, nor do I see the reason why[391].” Thus far Bracton. Britton says, speaking in the person of the king, of felons, for in that manner his book is written, “Their moveables are ours; their heirs are disinherited; and we will have their tenements, of whatsoever holden, for a year and a day, so that they shall remain in our hands that year and day, and that we shall not cause to perish the tenements, nor hurt the woods, nor plow the meadows, as hath been accustomed in time past[392].” Fleta talks in the same strain, in commenting on this law of _Magna Charta_, which he expressly quotes, that, as a mark of brand on felony, it had been antiently provided that the houses should be thrown down, and so goes on to enumerate the other species of waste, which I need not here repeat, as I have mentioned them already; and then he says “because by such doings great damage would accrue to the lords of the fiefs; for common utility it was provided, that such hardships and severities should cease; and that the king, in consideration thereof, should, for a year and a day, enjoy the commodity of the whole land; after which term it should return to the lords of the propriety entirely, without waste or destruction[393].” The _Mirror_, another antient law-book, joins with these; and this book, which was written in the same reign of Edward the first, or, at the latest, in that of his son, says, “the point of felons lands being held for the year is disused; for by that, the king ought not to have but the waste by right, or the year, in name, (that is, in nature) of a fine; to save the fief from _estrepement_ (that is, waste), the ministers of the king take both the one and the other[394].” A melancholy consideration, that, under his name, and in pretence of his profit, though not really to his advantage, such a law should, for their own profit, be eluded by his ministers; as by these testimonies, one cotemporary, and the rest immediately subsequent, we are informed it was contrary to the intention of this chapter of _Magna Charta_; but the practice prevailed for a long time after. I shall conclude this lecture with the words of Lord Coke on this chapter of _Magna Charta_. “Out of these old books you may observe, that when any thing is given to the king, in lieu or satisfaction of _an antient right of his crown_, when once he is in possession of the new recompence, and the same in charge, his officers and ministers will many times demand the old also, which may turn to great prejudice, if it be not duly and discreetly prevented[395]”.

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].

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.

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.