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Trial by Jury, Spooner
http://lf-oll.s3.amazonaws.com/titles/2181/Spooner1474_Bk.pdf
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46
The foregoing interpretation of the words nisi per legem terrae - that is, by due process of law - including indictment, &c., has been adopted as the true one by modern writers and courts; as, for example, by Kent, (2 Comm. 13,) Story, (3 Comm. 661,) and Supreme Court of New York, (19 Wendell, 676; 4 Hill, 146.)
The fifth amendment to the constitution of the United States seems to have been framed on the same idea, inasmuch as it provides that “no person shall be deprived of life, liberty, or property, without due process of law.”*
Whether the word VEL should be rendered by OR, or by AND.
Having thus given the meanings, or rather the applications, which the words vel per legem terrae will reasonably, and perhaps must necessarily, bear, it is proper to suggest, that it has been supposed by some that the word vel, instead of being rendered by or, as it usually is, ought to be rendered by and, inasmuch as the word vel is often used for et, and the whole phrase nisi per judicium parium suorum, vel per legem terrae, (which would then read, unless by the sentence of his peers, and the law of the land,) would convey a more intelligible and harmonious meaning than it otherwise does.
Blackstone suggests that this may be the true reading. (Charters, p. 41.) Also Mr. Hallam, who says:
*Nisi per legale judicium parium suorum, vel per legem terrae. Several explanations have been offered of the alternative clause; which some have referred to judgment by default, or demurrer; others to the process of attachment for contempt. Certainly there are many legal procedures besides trial by jury, through which a party’s goods or person may be taken. But one may doubt whether these were in contemplation of the framers of Magna Carta. In an entry of the Charter of 1217 by a contemporary hand, preserved in the Town-clerk’s office in London, called Liber Custumarum et Regum antiquarum, a various reading, et per legem terrae, occurs. Blackstone’s Charters, p. 42 (41.) And the word vel is so frequently used for et, that I am not wholly free from a suspicion that it was so intended in this place. The meaning will be, that no person shall be disseized, &c., except upon a lawful cause of action, found by the verdict of a jury. This really seems as good as any of the disjunctive interpretations; but I do not offer it with much confidence.” - 2 Hallam’s Middle Ages, Ch. 8, Part 2, p. 449, note.*
*I cite the above extract from Mr. Hallam soley for the sake of his authority for rendering the word vel by and; and not by any means for the purpose of indorsing the opinion he suggests, that legem terrae authorized “judgments by default or demurrer,” without the intervention of a jury. He seems to imagine that lex terrae, the common law, at the time of Magna Carta, included everything, even to the practice of courts, that is, at this day, called by the name of Common Law; whereas much of what is now called Common Law has grown up, by usurpation, since the time of Magna Carta, in palpable violation of the authority of that charter. He says, “Certainly there are many legal procedures, besides trial by jury, through which a party’s goods or person may be taken.” Of course there are now many such ways, in which a party’s goods or person are taken, besides by the judgment of a jury; but the question is, wheter such takings are not in violation of Magna Carta.
He seems to think that, in cases of “judgment by default or demurrer,” there is no need of a jury, and thence to infer that legem terrae may not have required a jury in those cases. But this opinion is founded on the erroneous idea that juries are required only for determining contested facts, and not for judging of the law. In case of default, the plaintiff must present a prima facie case before he is entitled to a judgment; and Magna Carta, (supposing it to require a jury trial in civil cases, as Mr. Hallam assumes that it does,) as much requires that this prima facie case, both law and fact, be made out to the satisfaction of a jury, as it does that a contested case shall be.
As for demurrer, the jury must try a demurrer (having the advice and assistance of the court, of course) as much as any other matter of law arising in a case.
Mr. Hallam evidently thinks there is no use for a jury, except where there is a “trial” - meaning thereby a contest on matters of fact. His language is, that “there are many legal procedures, besides trial by jury, through which a party’s goods or person may be taken.” Now Magna Carta says nothing of trial by jury; but only of the judgment, or sentence, of a jury. It is only by inference that we come to the conclusion that there must be a trial by jury. Since the jury alone can give the judgment, or sentence, we infer that they must try the case; because otherwise they would be incompetent, and would have no moral right, to give judgment. They must, therefore, examine the grounds, (bot of law and fact,) or rather try the grounds, of every action whatsoever, whether it be decided on “default, demurrer,” or otherwise, and render their judgment, or sentence, thereon, before any judgment can be a legal one, on which “to take a party’s goods or person.” In short, the principle of Magna Carta is, that no judgment can be valid against a party’s goods or person, (not even a judgment for costs,) except a judgment rendered by a jury. Of course a jury must try every question, bot of law and fact, that is involved in the rendering of that judgment. They are to have the assistance and advice of the judges, so far as they desire them; but the judgment itself must be theirs, and not the judgment of the court.
As to “process of attachment for contempt,” it is of course lawful for a judge, in his character of a peace officer, to issue a warrant for the arrest of a man guilty of contempt, as he would for the arrest of any other offender, and hold him to bail, (or, in default of bail, commit him to prison,) to answer for his offense before a jury. Or he may order him into custody without a warrant when the offence is committed in the judge’s presence. But there is no reason why a judge should have the power of punishing for contempt, any more than for any other offence. And it is one of the most dangerous powers a judge can have, because it gives him absolute authority in a court of justice, and enables him to tyrannize as he pleases over parties, counsel, witnesses, and jurors. If a judge have power to punish for contempt, and to determine for himself what is a contempt, the whole administration of justice (or injustice, if he choose to make it so) is in his hands. And all the rights of jurors, witnesses, counsel, and arties, are held subject to his pleasure, and can be exercised only agreeably to his will. He can of course control the entire proceedings in, and consequently the decision of, every cause, by restraining and punishing every one, whether party, counsel, witness, or juror, who presumed to offer anything contrary to his pleasure.
This arbitrary power, which has been usurped and exercised by judges to punish for contempt, has undoubtedly had much to do in subduing counsel into these servile, obsequious, and cowardly habits, which so universally prevail among them, and which have not only cost so many clients their rights, but have also cost the people so many of their liberties.
If any summary punishment for contempt be ever necessary, (as it probably is not,) beyond exclusion for the time being from the court-room, (which should be done, not as a punishment, but for self-protection, and the preservation of order,) the judgment for it should be given by the jury, (where the trial is before a jury,) and not by the court, for the jury, and no the court, are really the judges. For the same reason, exclusion from the court-room should be ordered only by the jury, in cases when the trial is before a jury, because they, being the real judges and triers of the cause, are entitled, if anybody, to the control of the court-room. In appeal courts, where no juries sit, it may be necessary - not as punishment, but for self-protection, and the maintenance of order - that the court should exercise the power of excluding a person, for the time being, from the court-room; but there is no reason why they should proceed to sentence him as a criminal, without his being tried by a jury.
If the people wish to have their rights respected and protected in courts of justice, it is manifestly of the last importance that they jealously guard he liberty of parties, counsel, witnesses, and jurors, against all arbitrary power on the part of the court.
Certainly Mr. Hallam may ver well say that “one may doubt whether these (the several cases he has mentioned) were in contemplation of the framers of Magna Carta” - that is, as exceptions to the rule of requiring that all judgments, that are to be enforced “against a party’s goods or person,” be rendered by a jury.
Again, Mr. Hallam says, if the word vel be rendered by and, “the meaning will be, that no person shall be disseized, &c., except upon a lawful cause of action.” This is true; but it does not follow that any cause of action, founded on statute only, is therefore a “lawful cause of action,” within the meaning of legem terrae, or the Common law. Within the meaning of the legem terrae of Magna Carta, nothing but a common law cause of action is a “lawful” one.
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The idea that the word vel should be rendered by and, is corroborated, if not absolutely confirmed, by the following passage in Blackstone, which has before been cited. Speaking of the trial by jury, as established by Magna Carta, he calls it,
“A privilege which is couched in almost the same words with that of the Emperor Conrad two hundred years before: ‘nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum, et judicium parium suorum.’ “ (No one shall lose his estate unless according to the custom of our ancestors, and the judgment of his peers.) - 3 Blackstone, 350.
If the word vel be rendered by and, (as I think it must be, at least in some cases,) this chapter of Magna Carta will then read that no freeman shall be arrested or punished, “unless according to the sentence of his peers, and the law of the land.”
The difference between this reading and the other is important. In the one case, there would be, at first view, some color of ground for saying that a man might be punished in either of two ways, viz., according to the sentence of his peers, or according to the law of the land. In the other case, it requires both sentence of his peers and the law of the land (common law) to authorize his punishment.
If this latter reading be adopted, the provision would seem to exclude all trials except trial by jury, and all causes of action except those of the common law.
But I apprehend the word vel must be rendered both by and, and by or; that in cases of a judgment, it should be rendered by and, so as to require the concurrence both of “the judgment of the peers and the law of the land,” to authorize the king to make execution upon a party’s goods or person’ but that in cases of arrest and imprisonment, simply for the purpose of bringing a man to trial, vel should be rendred by or, because there can have been no judgment of a jury in such a case, and “the law of the land” must therefore necessarily be the only guide to, and restraint upon, the king. If this guide and restraint were taken away, the king would be invested with an arbitrary and most dangerous power in making arrests, and confining in prison, under pretence of any intention to bring to trial.
Having thus examined the language of this chapter of Magna Carta, so far as it relates to criminal cases, its legal import may be stated as follows, viz.:
No freeman shall be arrested, or imprisoned, or deprived of his freehold, or his liberties, or free customs, or be outlawed, or exiled, or in any manner destroyed, (harmed,) nor will we (the king) proceed against him, nor send anyone against him, by force or arms, unless according to (that is, in execution of) the sentence of his peers, and (or or, as the case may require) the Common Law of England, (as it was at the time of Magna Carta, in 1215.)
Private Justice:
Judging, therefore, from the special provisions in Magna Carta, requiring fines, or amercements, to be imposed only by juries, ( without mentioning any other punishments; ) judging, also, from the statutes which immediately followed Magna Carta, it is probable that the Saxon custom of punishing all, or nearly all, offences by fines, (with the alternative to the criminal of being imprisoned, banished, or outlawed, and exposed to private vengeance, in case of non-payment,) continued until the time of Magna Carta; and that in providing expressly that fines should be fixed by the juries, Magna Carta provided for nearly or quite all the punishments that were expected to be inflicted; that if there were to be any others, they were to be fixed by the juries; and consequently that nothing was left to be fixed by “legem terrœ.”
“In what great feature are Protestantism, Democracy, and Socialism identical? I will answer this interrogatory first, and demonstrate afterward. Protestantism, Democracy, and Socialism are identical in the assertion of the Supremacy of the Individual, - a dogma essentially contumacious, revolutionary, and antagonistic to the basis principles of all the older institutions of society, which make the Individual subordinate and subject to the Church, to the State, and to Society respectively. Not only is this supremacy or SOVEREIGNTY OF THE INDIVIDUAL a common element of all three of these great movements, but I will make the still more sweeping assertion that it is substantially the whole of those movements. It is not merely a feature, as I have just denominated it, but the living soul itself, the vital energy, the integral essence or the being of them all.”
Steven Pearl Andrews, The Science of Society, 1888
https://babel.hathitrust.org/cgi/pt?id=miua.2916966.0001.001;view=1up;seq=2
"Bills of exchange, bank checks, and negotiable paper of all sorts add just so much to the body of the currency; and this issue is unlimited by law, and unlimited in fact, except by the exigencies of trade. They are just as really currency as the specie dollar, the greenback, or the bank bill. A field which has no fence up one of its sides is not fenced in, no matter how high and strong its fences may be on the other sides. So, the volume of currency is not, in any true sense, limited by prohibitions of free banking, by a return to specie basis, or by any other means, so long as negotiable paper can be freely issued by individuals; and this free issue of negotiable paper is too useful, and too well entrenched in necessity, ever hereafter to be interfered with. Commerce can be hindered and trammeled to some extent—by statute arrangements claiming to regulate the currency, whether by restrictive measures, or by flooding the community with over-issues; but the volume of the currency can no longer be adjusted by such means."
The Labor Dollar
OF INTEREST TO GOLD BUGS
by Stephen Pearl Andrews, 1881