Works of Lysander Spooner vol. 2

NOTICE TO ENGLISH PUBLISHERS.

The author claims the copyright of this book in England, on Common Law principles, without regard to acts of parliament; and if the main principle of the book itself be true, viz., that no legislation, in conflict with the Common Law, is of any validity, his claim is a legal one. He forbids any one to reprint the book without his consent.

Stereotyped by

HOBART & ROEBINS;

New England Type and Stereotype Foundary,

BOSTON.

NOTE.

This volume, it is presumed by the author, gives what will generally be considered satisfactory evidence,—though not all the evidence,—of what the Common Law trial by jury really is. In a future volume, if it should be called for, it is designed to corroborate the grounds taken in this; give a concise view of the English constitution; show the unconstitutional character of the existing government in England, and the unconstitutional means by which the trial by jury has been broken down in practice; prove that, neither in England nor the United States, have legislatures ever been invested by the people with any authority to impair the powers, change the oaths, or (with few exceptions) abridge the jurisdiction, of juries, or select jurors on any other than Common Law principles; and, consequently, that, in both countries, legislation is still constitutionally subordinate to the discretion and consciences of Common Law juries, in all cases, both civil and criminal, in which juries sit. The same volume will probably also discuss several political and legal questions, which will naturally assume importance if the trial by jury should be reëstablished.

CONTENTS.

• CHAPTER I. THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS, . . . . . . . . page 5
  • Section 1, . . . . . . . . . . . 5
  • Section 2, . . . . . . . . . . . 11
• CHAPTER II. THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA, . . . . . . . . . . 20
  • Section 1. The History of Magna Carta, . . . 20
  • Section 2. The Language of Magna Carta, . . 25
• CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS, . . . . . . . 51
  • Section 1. Weakness of the Regal Authority, . . 51
  • Section 2. The Ancient Common Law Juries were mere Courts of Conscience, . . . . . 68
  • Section 3. The Oaths of Jurors, . . . . . 85
  • Section 4. The Right of Jurors to fix the Sentence, . 91
  • Section 5. The Oaths of Judges, . . . . . 98
  • Section 6. The Coronation Oath, . . . . . 102
• CHAPTER IV. THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS, . . . . . . . . . . 110
• CHAPTER V. OBJECTIONS ANSWERED, . . . . . . 123
• CHAPTER VI. JURIES OF THE PRESENT DAY ILLEGAL, . 142
• CHAPTER VII. ILLEGAL JUDGES, . . . . . . . . 157
• CHAPTER VIII. THE FREE ADMINISTRATION OF JUSTICE, . 172
• CHAPTER IX. THE CRIMINAL INTENT, . . . . . . . 178
• CHAPTER X. MORAL CONSIDERATIONS FOR JURORS, . . 189
• CHAPTER XI. AUTHORITY OF MAGNA CARTA, . . . . 192
• CHAPTER XII. LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY, . . . . . 206
• APPENDIX—Taxation, . . . . . . . . . . . 222

CHAPTER I.: THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS.

CHAPTER II.: THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA.

That the trial by jury is all that has been claimed for it in the preceding chapter, is proved both by the history and the language of the Great Charter of English Liberties, to which we are to look for a true definition of the trial by jury, and of which the guaranty for that trial is the vital, and most memorable, part.

CHAPTER III.: ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS.

If any evidence, extraneous to the history and language of Magna Carta, were needed to prove that, by that chapter which guaranties the trial by jury, all was meant that has now been ascribed to it, and that the legislation of the king was to be of no authority with the jury beyond what they chose to allow to it, and that the juries were to limit the punishments to be inflicted, we should find that evidence in various sources, such as the laws, customs, and characters of their ancestors on the continent, and of the northern Europeans generally; in the legislation and customs that immediately succeeded Magna Carta; in the oaths that have at different times been administered to jurors, &c., &c. This evidence can be exhibited here but partially. To give it all would require too much space and labor.

CHAPTER IV.: THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.

The evidence already given in the preceding chapters proves that the rights and duties of jurors, in civil suits, were anciently the same as in criminal ones; that the laws of the king were of no obligation upon the consciences of the jurors, any further than the laws were seen by them to be just; that very few laws were enacted applicable to civil suits; that when a new law was enacted, the nature of it could have been known to the jurors only by report, and was very likely not to be known to them at all; that nearly all the law involved in civil suits was unwritten; that there was usually no one in attendance upon juries who could possibly enlighten them, unless it were sheriffs, stewards, and bailiffs, who were unquestionably too ignorant and untrustworthy to instruct them authoritatively; that the jurors must therefore necessarily have judged for themselves of the whole case; and that, as a general rule, they could judge of it by no law but the law of nature, or the principles of justice as they existed in their own minds.

The ancient oath of jurors in civil suits, viz., that “they would make known the truth according to their consciences,” implies that the jurors were above the authority of all legislation. The modern oath, in England, viz., that they “will well and truly try the issue between the parties, and a true verdict give, according to the evidence,” implies the same thing. If the laws of the king had been binding upon a jury, they would have been sworn to try the cases according to law, or according to the laws.

The ancient writs, in civil suits, as given in Glanville, (within the half century before Magna Carta,) to wit, “Summon twelve free and legal men, (or sometimes twelve knights,) to be in court, prepared upon their oaths to declare whether A Edition: current; Page: [111] or B have the greater right to the land in question,” indicate that the jurors judged of the whole matter on their consciences only.

The language of Magna Carta, already discussed, establishes the same point; for, although some of the words, such as “outlawed,” and “exiled,” would apply only to criminal cases, nearly the whole chapter applies as well to civil as to criminal suits. For example, how could the payment of a debt ever be enforced against an unwilling debtor, if he could neither be “arrested, imprisoned, nor deprived of his freehold,” and if the king could neither “proceed against him, nor send any one against him, by force or arms”? Yet Magna Carta as much forbids that any of these things shall be done against a debtor, as against a criminal, except according to, or in execution of, “a judgment of his peers, or the law of the land,”—a provision which, it has been shown, gave the jury the free and absolute right to give or withhold “judgment” according to their consciences, irrespective of all legislation.

The following provisions, in the Magna Carta of John, illustrate the custom of referring the most important matters of a civil nature, even where the king was a party, to the determination of the peers, or of twelve men, acting by no rules but their own consciences. These examples at least show that there is nothing improbable or unnatural in the idea that juries should try all civil suits according to their own judgments, independently of all laws of the king.

There is substantially the same reason why a jury ought to judge of the justice of laws, and hold all unjust laws invalid, in civil suits, as in criminal ones. That reason is the necessity of guarding against the tyranny of the government. Nearly the same oppressions can be practised in civil suits as in criminal ones. For example, individuals may be deprived of their liberty, and robbed of their property, by judgments rendered in civil suits, as well as in criminal ones. If the laws of the king were imperative upon a jury in civil suits, the king might enact laws giving one man’s property to another, or confiscating it to the king himself, and authorizing civil suits to obtain possession of it. Thus a man might be robbed of his property at the arbitrary pleasure of the king, In fact, all the property of the kingdom would be placed at the arbitrary disposal of the king, through the judgments of juries in civil suits, if the laws of the king were imperative upon a jury in such suits.*

Furthermore, it would be absurd and inconsistent to make a jury paramount to legislation in criminal suits, and subordinate to it in civil suits; because an individual, by resisting the execution of a civil judgment, founded upon an unjust Edition: current; Page: [114] law, could give rise to a criminal suit, in which the jury would be bound to hold the same law invalid. So that, if an unjust law were binding upon a jury in civil suits, a defendant, by resisting the execution of the judgment, could, in effect, convert the civil action into a criminal one, in which the jury would be paramount to the same legislation, to which, in the civil suit, they were subordinate. In other words, in the criminal suit, the jury would be obliged to justify the defendant in resisting a law, which, in the civil suit, they had said he was bound to submit to.

To make this point plain to the most common mind—suppose a law be enacted that the property of A shall be given to B. B brings a civil action to obtain possession of it. If the jury, in this civil suit, are bound to hold the law obligatory, they render a judgment in favor of B, that he be put in possession of the property; thereby declaring that A is bound to submit to a law depriving him of his property. But when the execution of that judgment comes to be attempted—that is, when the sheriff comes to take the property for the purpose of delivering it to B—A acting, as he has a natural right to do, in defence of his property, resists and kills the sheriff. He is thereupon indicted for murder. On this trial his plea is, that in killing the sheriff, he was simply exercising his natural right of defending his property against an unjust law. The jury, not being bound, in a criminal case, by the authority of an unjust law, judge the act on its merits, and acquit the defendant—thus declaring that he was not bound to submit to the same law which the jury, in the civil suit, had, by their judgment, declared that he was bound to submit to. Here is a contradiction between the two judgments. In the civil suit, the law is declared to be obligatory upon A; in the criminal suit, the same law is declared to be of no obligation.

It would be a solecism and absurdity in government to allow such consequences as these. Besides, it would be practically impossible to maintain government on such principles; for no government could enforce its civil judgments, unless it could support them by criminal ones, in case of resistance. A jury must therefore be paramount to legislation in both civil and criminal cases, or in neither. If they are paramount in neither, they are no protection to liberty. If they are paramount in both, then all legislation goes only for what it may chance to be worth in the estimation of a jury.

Another reason why Magna Carta makes the discretion and consciences of juries paramount to all legislation in civil suits, is, that if legislation were binding upon a jury, the jurors—(by reason of their being unable to read, as jurors in those days were, and also by reason of many of the statutes being unwritten, or at least not so many copies written as that juries could be supplied with them)—would have been necessitated—at least in those courts in which the king’s justices sat—to take the word of those justices as to what the laws of the king really were. In other words, they would have been necessitated to take the law from the court, as jurors do now.

Now there were two reasons why, as we may rationally suppose, the people did not wish juries to take their law from the king’s judges. One was, that, at that day, the people probably had sense enough to see, (what we, at this day, have not sense enough to see, although we have the evidence of it every day before our eyes,) that those judges, being dependent upon the legislative power, (the king,) being appointed by it, paid by it, and removable by it at pleasure, would be mere tools of that power, and would hold all its legislation obligatory, whether it were just or unjust. This was one reason, doubtless, why Magna Carta made juries, in civil suits, paramount to all instructions of the king’s judges. The reason was precisely the same as that for making them paramount to all instructions of judges in criminal suits, viz., that the people did not choose to subject their rights of property, and all other rights involved in civil suits, to the operation of such laws as the king might please to enact. It was seen that to allow the king’s judges to dictate the law to the jury would be equivalent Edition: current; Page: [116] to making the legislation of the king imperative upon the jury.

Another reason why the people did not wish juries, in civil suits, to take their law from the king’s judges, doubtless was, that, knowing the dependence of the judges upon the king, and knowing that the king would, of course, tolerate no judges who were not subservient to his will, they necessarily inferred that the king’s judges would be as corrupt, in the administration of justice, as was the king himself, or as he wished them to be. And how corrupt that was, may be inferred from the following historical facts.

Hume says:

Carte says:

Hallam says:

In allusion to the provision of Magna Carta on this subject, Hallam says:

Lingard, speaking of the times of Henry II., (say 1184,) says:

In the narrative of “The costs and charges which I, Richard de Anesty, bestowed in recovering the land of William, my uncle,” (some fifty years before Magna Carta,) are the following items:

Palgrave also says:

But Magna Carta has another provision for the trial of civil suits, that obviously had its origin in the corruption of the king’s judges. The provision is, that four knights, to be chosen in every county, by the people of the county, shall sit with the king’s judges, in the Common Pleas, in jury trials, (assizes,) on the trial of three certain kinds of suits, that were among the most important that were tried at all. The reason for this provision undoubtedly was, that the corruption and subserviency of the king’s judges were so well known, that the people would not even trust them to sit alone in a jury trial of any considerable importance. The provision is this:

It would be very unreasonable to suppose that the king’s judges were allowed to dictate the law to the juries, when the people would not even suffer them to sit alone in jury trials, but themselves chose four men to sit with them, to keep them honest.†

This practice of sending the king’s judges into the counties to preside at jury trials, was introduced by the Norman kings. Under the Saxons it was not so. No officer of the king was allowed to preside at a jury trial; but only magistrates chosen by the people.*

But the following chapter of John’s charter, which immediately succeeds the one just quoted, and refers to the same suits, affords very strong, not to say conclusive, proof, that juries judged of the law in civil suits—that is, made the law, so far as their deciding according to their own notions of justice could make the law.

The meaning of this chapter is, that so many of the civil suits, as could not be tried on the day when the king’s justices were present, should be tried afterwards, by the four knights before mentioned, and the freeholders, that is, the jury. It must be admitted, of course, that the juries, in these cases, judged the matters of law, as well as fact, unless it be presumed that the knights dictated the law to the jury—a thing of which there is no evidence at all.

As a final proof on this point, there is a statute enacted seventy years after Magna Carta, which, although it is contrary to the common law, and therefore void, is nevertheless good evidence, inasmuch as it contains an acknowledgment, on the part of the king himself, that juries had a right to judge of the whole matter, law and fact, in civil suits. The provision is this:

The question of “disseisin, or not,” was a question of law, as well as fact. This statute, therefore, admits that the law, as well as the fact, was in the hands of the jury. The statute is nevertheless void, because the king had no authority to give jurors a dispensation from the obligation imposed upon them by their oaths and the “law of the land,” that they should “make known the truth according their (own) consciences.” This they were bound to do, and there was no power in the king to absolve them from the duty. And the attempt of the king thus to absolve them, and authorize them to throw the case into the hands of the judges for decision, was simply an illegal and unconstitutional attempt to overturn the “law of the land,” which he was sworn to maintain, and gather power into his own hands, through his judges. He had just as much constitutional power to enact that the jurors should not be compelled to declare the facts, but that they might leave them to be determined by the king’s judges, as he had to enact that they Edition: current; Page: [122] should not be compelled to declare the law, but might leave it to be decided by the king’s judges. It was as much the legal duty of the jury to decide the law as to decide the fact; and no law of the king could affect their obligation to do either. And this statute is only one example of the numberless contrivances and usurpations which have been resorted to, for the purpose of destroying the original and genuine trial by jury.

CHAPTER V.: OBJECTIONS ANSWERED.

The following objections will be made to the doctrines and the evidence presented in the preceding chapters.

1. That it is a maxim of the law, that the judges respond to the question of law, and juries only to the question of fact.

The answer to this objection is, that, since Magna Carta, judges have had more than six centuries in which to invent and promulgate pretended maxims to suit themselves; and this is one of them. Instead of expressing the law, it expresses nothing but the ambitious and lawless will of the judges themselves, and of those whose instruments they are.*

2. It will be asked, Of what use are the justices, if the jurors judge both of law and fact?

The answer is, that they are of use, 1. To assist and enlighten the jurors, if they can, by their advice and information; such advice and information to be received only for what they may chance to be worth in the estimation of the jurors. 2. To do anything that may be necessary in regard to granting appeals and new trials.

3. It is said that it would be absurd that twelve ignorant men should have power to judge of the law, while justices learned in the law should be compelled to sit by and see the law decided erroneously.

One answer to this objection is, that the powers of juries Edition: current; Page: [124] are not granted to them on the supposition that they know the law better than the justices; but on the ground that the justices are untrustworthy, that they are exposed to bribes, are themselves fond of power and authority, and are also the dependent and subservient creatures of the legislature; and that to allow them to dictate the law, would not only expose the rights of parties to be sold for money, but would be equivalent to surrendering all the property, liberty, and rights of the people, unreservedly into the hands of arbitrary power, (the legislature,) to be disposed of at its pleasure. The powers of juries, therefore, not only place a curb upon the powers of legislators and judges, but imply also an imputation upon their integrity and trustworthiness; and these are the reasons why legislators and judges have formerly entertained the intensest hatred of juries, and, so fast as they could do it without alarming the people for their liberties, have, by indirection, denied, undermined, and practically destroyed their power. And it is only since all the real power of juries has been destroyed, and they have become mere tools in the hands of legislators and judges, that they have become favorites with them.

Legislators and judges are necessarily exposed to all the temptations of money, fame, and power, to induce them to disregard justice between parties, and sell the rights, and violate the liberties of the people. Jurors, on the other hand, are exposed to none of these temptations. They are not liable to bribery, for they are unknown to the parties until they come into the jury-box. They can rarely gain either fame, power, or money, by giving erroneous decisions. Their offices are temporary, and they know that when they shall have executed them, they must return to the people, to hold all their own rights in life subject to the liability of such judgments, by their successors, as they themselves have given an example for. The laws of human nature do not permit the supposition that twelve men, taken by lot from the mass of the people, and acting under such circumstances, will all prove dishonest. It is a supposable case that they may not be sufficiently enlightened to know and do their whole duty, in all cases whatsoever; but that they should all prove dishonest, is not within Edition: current; Page: [125] the range of probability. A jury, therefore, insures to us—what no other court does—that first and indispensable requisite in a judicial tribunal, integrity.

4. It is alleged that if juries are allowed to judge of the law, they decide the law absolutely; that their decision must necessarily stand, be it right or wrong; and that this power of absolute decision would be dangerous in their hands, by reason of their ignorance of the law.

One answer is, that this power, which juries have of judging of the law, is not a power of absolute decision in all cases. For example, it is a power to declare imperatively that a man’s property, liberty, or life, shall not be taken from him; but it is not a power to declare imperatively that they shall be taken from him.

Magna Carta does not provide that the judgments of the peers shall be executed; but only that no other than their judgments shall ever be executed, so far as to take a party’s goods, rights, or person, thereon.

A judgment of the peers may be reviewed, and invalidated, and a new trial granted. So that practically a jury has no absolute power to take a party’s goods, rights, or person. They have only an absolute veto upon their being taken by the government. The government is not bound to do everything that a jury may adjudge. It is only prohibited from doing anything—(that is, from taking a party’s goods, rights, or person)—unless a jury have first adjudged it to be done.

But it will, perhaps, be said, that if an erroneous judgment of one jury should be reäffirmed by another, on a new trial, it must then be executed. But Magna Carta does not command even this—although it might, perhaps, have been reasonably safe for it to have done so—for if two juries unanimously affirm the same thing, after all the light and aid that judges and lawyers can afford them, that fact probably furnishes as strong a presumption in favor of the correctness of their opinion, as can ordinarily be obtained in favor of a judgment, by any measures of a practical character for the administration of justice. Still, there is nothing in Magna Carta that compels the execution of even a second judgment of a jury. The only injunction of Magna Carta upon the Edition: current; Page: [126] government, as to what it shall do, on this point, is that it shall “do justice and right,” without sale, denial, or delay. But this leaves the government all power of determining what is justice and right, except that it shall not consider anything as justice and right—so far as to carry it into execution against the goods, rights, or person of a party—unless it be something which a jury have sanctioned.

If the government had no alternative but to execute all judgments of a jury indiscriminately, the power of juries would unquestionably be dangerous; for there is no doubt that they may sometimes give hasty and erroneous judgments. But when it is considered that their judgments can be reviewed, and new trials granted, this danger is, for all practical purposes, obviated.

If it be said that juries may successively give erroneous judgments, and that new trials cannot be granted indefinitely, the answer is, that so far as Magna Carta is concerned, there is nothing to prevent the granting of new trials indefinitely, if the judgments of juries are contrary to “justice and right.” So that Magna Carta does not require any judgment whatever to be executed—so far as to take a party’s goods, rights, or person, thereon—unless it be concurred in by both court and jury.

Nevertheless, we may, for the sake of the argument, suppose the existence of a practical, if not legal, necessity, for executing some judgment or other, in cases where juries persist in disagreeing with the courts. In such cases, the principle of Magna Carta unquestionably is, that the uniform judgments of successive juries shall prevail over the opinion of the court. And the reason of this principle is obvious, viz., that it is the will of the country, and not the will of the court, or the government, that must determine what laws shall be established and enforced; that the concurrent judgments of successive juries, given in opposition to all the reasoning which judges and lawyers can offer to the contrary, must necessarily be presumed to be a truer exposition of the will of the country, than are the opinions of the judges.

But it may be said that, unless jurors submit to the control of the court, in matters of law, they may disagree among Edition: current; Page: [127] themselves, and never come to any judgment; and thus justice fail to be done.

Such a case is perhaps possible; but, if possible, it can occur but rarely; because, although one jury may disagree, a succession of juries are not likely to disagree—that is, on matters of natural law, or abstract justice.* If such a thing should occur, it would almost certainly be owing to the attempt of the court to mislead them. It is hardly possible that any other cause should be adequate to produce such an effect; because justice comes very near to being a self-evident principle. The mind perceives it almost intuitively. If, in addition to this, the court be uniformly on the side of justice, it is not a reasonable supposition that a succession of juries should disagree about it. If, therefore, a succession of juries do disagree on the law of any case, the presumption is, not that justice fails of being done, but that injustice is prevented—that injustice, which would be done, if the opinion of the court were suffered to control the jury.

For the sake of the argument, however, it may be admitted to be possible that justice should sometimes fail of being done through the disagreements of jurors, notwithstanding all the light which judges and lawyers can throw upon the question in issue. If it be asked what provision the trial by jury makes for such cases, the answer is, it makes none; and justice must fail of being done, from the want of its being made sufficiently intelligible.

Under the trial by jury, justice can never be done—that is, by a judgment that shall take a party’s goods, rights, or person—until that justice can be made intelligible or perceptible to the minds of all the jurors; or, at least, until it obtain the voluntary assent of all—an assent, which ought not to be given until the justice itself shall have become perceptible to all.

The principles of the trial by jury, then, are these:

1. That, in criminal cases, the accused is presumed innocent.

2. That, in civil cases, possession is presumptive proof of property; or, in other words, every man is presumed to be the rightful proprietor of whatever he has in his possession.

3. That these presumptions shall be overcome, in a court of justice, only by evidence, the sufficiency of which, and by law, the justice of which, are satisfactory to the understanding and consciences of all the jurors.

These are the bases on which the trial by jury places the property, liberty, and rights of every individual.

But some one will say, if these are the principles of the trial by jury, then it is plain that justice must often fail to be done. Admitting, for the sake of the argument, that this may be true, the compensation for it is, that positive injustice will also often fail to be done; whereas otherwise it would be done frequently. The very precautions used to prevent injustice being done, may often have the effect to prevent justice being done. But are we, therefore, to take no precautions against injustice? By no means, all will agree. The question then arises—Does the trial by jury, as here explained, involve such extreme and unnecessary precautions against injustice, as to interpose unnecessary obstacles to the doing of justice? Men of different minds may very likely answer this question differently, according as they have more or less confidence in the wisdom and justice of legislators, the integrity and independence of judges, and the intelligence of jurors. This much, however, may be said in favor of these precautions, viz., that the history of the past, as well as our constant present experience, prove how much injustice may, and certainly will, be done, systematically and continually, for the want of these precautions—that is, while the law is authoritatively made and expounded by legislators and judges. On the other hand, we have no such evidence of how much justice may fail to be done, by reason of these precautions—that is, by reason of the law being left to the judgments and consciences of jurors. We can determine the former point—that is, how much positive injustice is done under the first of these two Edition: current; Page: [129] systems—because the system is in full operation; but we cannot determine how much justice would fail to be done under the latter system, because we have, in modern times, had no experience of the use of the precautions themselves. In ancient times, when these precautions were nominally in force, such was the tyranny of kings, and such the poverty, ignorance, and the inability of concert and resistance, on the part of the people, that the system had no full or fair operation. It, nevertheless, under all these disadvantages, impressed itself upon the understandings, and imbedded itself in the hearts, of the people, so as no other system of civil liberty has ever done.

But this view of the two systems compares only the injustice done, and the justice omitted to be done, in the individual cases adjudged, without looking beyond them. And some persons might, on first thought, argue that, if justice failed of being done under the one system, oftener than positive injustice were done under the other, the balance was in favor of the latter system. But such a weighing of the two systems against each other gives no true idea of their comparative merits or demerits; for, possibly, in this view alone, the balance would not be very great in favor of either. To compare, or rather to contrast, the two, we must consider that, under the jury system, the failures to do justice would be only rare and exceptional cases; and would be owing either to the intrinsic difficulty of the questions, or to the fact that the parties had transacted their business in a manner unintelligible to the jury, and the effects would be confined to the individual or individuals interested in the particular suits. No permanent law would be established thereby destructive of the rights of the people in other like cases. And the people at large would continue to enjoy all their natural rights as before. But under the other system, whenever an unjust law is enacted by the legislature, and the judge imposes it upon the jury as authoritative, and they give a judgment in accordance therewith, the authority of the law is thereby established, and the whole people are thus brought under the yoke of that law; because they then understand that the law will be enforced against them in future, if they presume to exercise their rights, or Edition: current; Page: [130] refuse to comply with the exactions of the law. In this manner all unjust laws are established, and made operative against the rights of the people.

The difference, then, between the two systems is this: Under the one system, a jury, at distant intervals, would (not enforce any positive injustice, but only) fail of enforcing justice, in a dark and difficult case, or in consequence of the parties not having transacted their business in a manner intelligible to a jury; and the plaintiff would thus fail of obtaining what was rightfully due him. And there the matter would end, for evil, though not for good; for thenceforth parties, warned of the danger of losing their rights, would be careful to transact their business in a more clear and intelligible manner. Under the other system—the system of legislative and judicial authority—positive injustice is not only done in every suit arising under unjust laws,—that is, men’s property, liberty, or lives are not only unjustly taken on those particular judgments,—but the rights of the whole people are struck down by the authority of the laws thus enforced, and a wide-sweeping tyranny at once put in operation.

But there is another ample and conclusive answer to the argument that justice would often fail to be done, if jurors were allowed to be governed by their own consciences, instead of the direction of the justices, in matters of law. That answer is this:

Legitimate government can be formed only by the voluntary association of all who contribute to its support. As a voluntary association, it can have for its objects only those things in which the members of the association are all agreed. If, therefore, there be any justice, in regard to which all the parties to the government are not agreed, the objects of the association do not extend to it.*

If any of the members wish more than this,—if they claim to have acquired a more extended knowledge of justice than is common to all, and wish to have their pretended discoveries carried into effect, in reference to themselves,—they must either form a separate association for that purpose, or be content to wait until they can make their views intelligible to the people at large. They cannot claim or expect that the whole people shall practise the folly of taking on trust their pretended superior knowledge, and of committing blindly into their hands all their own interests, liberties, and rights, to be disposed of on principles, the justness of which the people themselves cannot comprehend.

A government of the whole, therefore, must necessarily confine itself to the administration of such principles of law as all the people, who contribute to the support of the government, can comprehend and see the justice of. And it can be confined within those limits only by allowing the jurors, who represent all the parties to the compact, to judge of the law, and the justice of the law, in all cases whatsoever. And if any justice be left undone, under these circumstances, it is a justice for which the nature of the association does not provide, which the association does not undertake to do, and which, as an association, it is under no obligation to do.

The people at large, the unlearned and common people, have certainly an indisputable right to associate for the establishment and maintenance of such a government as they themselves see the justice of, and feel the need of, for the promotion of their own interests, and the safety of their own rights, without at the same time surrendering all their property, liberty, and rights into the hands of men, who, under the pretence of a superior and incomprehensible knowledge of justice, may dispose of such property, liberties, and rights, in a manner to suit their own selfish and dishonest purposes.

If a government were to be established and supported solely by that portion of the people who lay claim to superior knowledge, there would be some consistency in their saying that the common people should not be received as jurors, with power to judge of the justice of the laws. But so long as the whole people (or all the male adults) are presumed to be voluntary parties to the government, and voluntary contributors to its support, there is no consistency in refusing to any one of them more than to another the right to sit as juror, with full power to decide for himself whether any law that is proposed to be enforced in any particular case, be within the objects of the association.

The conclusion, therefore, is, that, in a government formed by voluntary association, or on the theory of voluntary association, and voluntary support, (as all the North American governments are,) no law can rightfully be enforced by the association in its corporate capacity, against the goods, rights, or person of any individual, except it be such as all the members of the association agree that it may enforce. To enforce any other law, to the extent of taking a man’s goods, rights, or person, would be making some of the parties to the association accomplices in what they regard as acts of injustice. It would also be making them consent to what they regard as the destruction of their own rights. These are things which no legitimate system or theory of government can require of any of the parties to it.

The mode adopted, by the trial by jury, for ascertaining whether all the parties to the government do approve of a particular law, is to take twelve men at random from the whole people, and accept their unanimous decision as representing the opinions of the whole. Even this mode is not theoretically accurate; for theoretical accuracy would require that every man, who was a party to the government, should individually give his consent to the enforcement of every law in every separate case. But such a thing would be impossible in practice. The consent of twelve men is therefore taken instead; with the privilege of appeal, and (in case of error found by the the appeal court) a new trial, to guard against possible mistakes. This system, it is assumed, will ascertain the sense of Edition: current; Page: [133] the whole people—“the country”—with sufficient accuracy for all practical purposes, and with as much accuracy as is practicable without too great inconvenience and expense.

5. Another objection that will perhaps be made to allowing jurors to judge of the law, and the justice of the law, is, that the law would be uncertain.

If, by this objection, it be meant that the law would be uncertain to the minds of the people at large, so that they would not know what the juries would sanction and what condemn, and would not therefore know practically what their own rights and liberties were under the law, the objection is thoroughly baseless and false. No system of law that was ever devised could be so entirely intelligible and certain to the minds of the people at large as this. Compared with it, the complicated systems of law that are compounded of the law of nature, of constitutional grants, of innumerable and incessantly changing legislative enactments, and of countless and contradictory judicial decisions, with no uniform principle of reason or justice running through them, are among the blindest of all the mazes in which unsophisticated minds were ever bewildered and lost. The uncertainty of the law under these systems has become a proverb. So great is this uncertainty, that nearly all men, learned as well as unlearned, shun the law as their enemy, instead of resorting to it for protection. They usually go into courts of justice, so called, only as men go into battle—when there is no alternative left for them. And even then they go into them as men go into dark labyrinths and caverns—with no knowledge of their own, but trusting wholly to their guides. Yet, less fortunate than other adventurers, they can have little confidence even in their guides, for the reason that the guides themselves know little of the mazes they are threading. They know the mode and place of entrance; but what they will meet with on their way, and what will be the time, mode, place, or condition of their exit; whether they will emerge into a prison, or not; whether wholly naked and destitute, or not; whether with their reputations left to them, or not; and whether in time or eternity; experienced and honest guides rarely venture to predict. Was there ever such fatuity as that of a nation of men Edition: current; Page: [134] madly bent on building up such labyrinths as these, for no other purpose than that of exposing all their rights of reputation, property, liberty, and life, to the hazards of being lost in them, instead of being content to live in the light of the open day of their own understandings?

What honest, unsophisticated man ever found himself involved in a lawsuit, that he did not desire, of all things, that his cause might be judged of on principles of natural justice, as those principles were understood by plain men like himself? He would then feel that he could foresee the result. These plain men are the men who pay the taxes, and support the government. Why should they not have such an administration of justice as they desire, and can understand?

If the jurors were to judge of the law, and the justice of the law, there would be something like certainty in the administration of justice, and in the popular knowledge of the law, and men would govern themselves accordingly. There would be something like certainty, because every man has himself something like definite and clear opinions, and also knows something of the opinions of his neighbors, on matters of justice. And he would know that no statute, unless it were so clearly just as to command the unanimous assent of twelve men, who should be taken at random from the whole community, could be enforced so as to take from him his reputation, property, liberty, or life. What greater certainty can men require or need, as to the laws under which they are to live? If a statute were enacted by a legislature, a man, in order to know what was its true interpretation, whether it were constitutional, and whether it would be enforced, would not be under the necessity of waiting for years until some suit had arisen and been carried through all the stages of judicial proceeding, to a final decision. He would need only to use his own reason as to its meaning and its justice, and then talk with his neighbors on the same points. Unless he found them nearly unanimous in their interpretation and approbation of it, he would conclude that juries would not unite in enforcing it, and that it would consequently be a dead letter. And he would be safe in coming to this conclusion.

There would be something like certainty in the administration Edition: current; Page: [135] of justice, and in the popular knowledge of the law, for the further reason that there would be little legislation, and men’s rights would be left to stand almost solely upon the law of nature, or what was once called in England “the common law,” (before so much legislation and usurpation had become incorporated into the common law,)—in other words, upon the principles of natural justice.

Of the certainty of this law of nature, or the ancient English common law, I may be excused for repeating here what I have said on another occasion.

In addition to the authority already cited, of Sir William Jones, as to the certainty of natural law, and the uniformity of men’s opinions in regard to it, I may add the following:

If it still be said that juries would disagree, as to what was natural justice, and that one jury would decide one way, and another jury another; the answer is, that such a thing is hardly credible, as that twelve men, taken at random from the people Edition: current; Page: [141] at large, should unanimously decide a question of natural justice one way, and that twelve other men, selected in the same manner, should unanimously decide the same question the other way, unless they were misled by the justices. If, however, such things should sometimes happen, from any cause whatever, the remedy is by appeal, and new trial.

CHAPTER VI.: JURIES OF THE PRESENT DAY ILLEGAL.

It may probably be safely asserted that there are, at this day, no legal juries, either in England or America. And if there are no legal juries, there is, of course, no legal trial, nor “judgment,” by jury.

In saying that there are probably no legal juries, I mean that there are probably no juries appointed in conformity with the principles of the common law.

The term jury is a technical one, derived from the common law; and when the American constitutions provide for the trial by jury, they provide for the common law trial by jury; and not merely for any trial by jury that the government itself may chance to invent, and call by that name. It is the thing, and not merely the name, that is guarantied. Any legislation, therefore, that infringes any essential principle of the common law, in the selection of jurors, is unconstitutional; and the juries selected in accordance with such legislation are, of course, illegal, and their judgments void.

It will also be shown, in a subsequent chapter,* that since Magna Carta, the legislative power in England (whether king or parliament) has never had any constitutional authority to infringe, by legislation, any essential principle of the common law in the selection of jurors. All such legislation is as much unconstitutional and void, as though it abolished the trial by jury altogether. In reality it does abolish it.

What, then, are the essential principles of the common law, controlling the selection of jurors?

They are two.

1. That all the freemen, or adult male members of the state, shall be eligible as jurors.*

Any legislation which requires the selection of jurors to be made from a less number of freemen than the whole, makes the jury selected an illegal one.

If a part only of the freemen, or members of the state, are eligible as jurors, the jury no longer represent “the country,” but only a part of “the country.”

If the selection of jurors can be restricted to any less number of freemen than the whole, it can be restricted to a very small proportion of the whole; and thus the government be taken out of the hands of “the country,” or the whole people, and be thrown into the hands of a few.

That, at common law, the whole body of freemen were eligible as jurors, is sufficiently proved, not only by the reason of the thing, but by the following evidence:

1. Everybody must be presumed eligible, until the contrary be shown. We have no evidence, that I am aware of, of a prior date to Magna Carta, to disprove that all freemen were eligible as jurors, unless it be the law of Ethelred, which requires that they be elderly† men. Since no specific age is given, it is probable, I think, that this statute meant nothing more than that they be more than twenty-one years old. If it meant anything more, it was probably contrary to the common law, and therefore void.

2. Since Magna Carta, we have evidence showing quite conclusively that all freemen, above the age of twenty-one years, were eligible as jurors.

The Mirror of Justices, (written within a century after Magna Carta,) in the section “Of Judges”—that is, jurors—says:

In the section “Of Inferior Courts,” it is said:

In the section “Of the Sheriff’s Turns,” it is said:

The following statute was passed by Edward I., seventy years after Magna Carta:

Although this command to the sheriffs and other officers, not to summon, as jurors, those who, from age and disease, were physically incapable of performing the duties, may not, of itself, afford any absolute or legal implication, by which we can determine precisely who were, and who were not, eligible as jurors at common law, yet the exceptions here made nevertheless carry a seeming confession with them that, at common law, all male adults were eligible as jurors.

But the main principle of the feudal system itself shows that all the full and free adult male members of the state—that is, all who were free born, and had not lost their civil rights by crime, or otherwise—must, at common law, have been eligible as jurors. What was that principle? It was, that the state rested for support upon the land, and not upon taxation levied upon the people personally. The lands of the country were considered the property of the state, and were made to support the state in this way. A portion of them was set apart to the king, the rents of which went to pay his personal and official expenditures, not including the maintenance of armies, or the administration of justice. War and the administration of justice were provided for in the following manner. The freemen, or the free-born adult male members of the state—who had not forfeited their political rights—were entitled to land of right, (until all the land was taken up,) on condition of their rendering certain military and civil services to the state. The military services consisted in serving personally as soldiers, or contributing an equivalent in horses, provisions, or other military supplies. The civil services consisted, among other things, in serving as jurors (and, it would appear, as witnesses) in the courts of justice. For these services Edition: current; Page: [146] they received no compensation other than the use of their lands. In this way the state was sustained; and the king had no power to levy additional burdens or taxes upon the people. The persons holding lands on these terms were called freeholders—in later times freemen—meaning free and full members of the state.

Now, as the principle of the system was that the freeholders held their lands of the state, on the condition of rendering these military and civil services as rents for their lands, the principle implies that all the freeholders were liable to these rents, and were therefore eligible as jurors. Indeed, I do not know that it has ever been doubted that, at common law, all the freeholders were eligible as jurors. If all had not been eligible, we unquestionably should have had abundant evidence of the exceptions. And if anybody, at this day, allege any exceptions, the burden will be on him to prove them. The presumption clearly is that all were eligible.

The first invasion, which I find made, by the English statutes, upon this common law principle, was made in 1285, seventy years after Magna Carta. It was then enacted as follows:

The next invasion of the common law, in this particular, was made in 1414, about two hundred years after Magna Carta, when it was enacted:

Other statutes on this subject of the property qualifications of jurors, are given in the note.*

From these statutes it will be seen that, since 1285, seventy years after Magna Carta, the common law right of all free British subjects to eligibility as jurors has been abolished, and the qualifications of jurors have been made a subject of arbitrary legislation. In other words, the government has usurped the authority of selecting the jurors that were to sit in judgment upon its own acts. This is destroying the vital principle of the trial by jury itself, which is that the legislation of the government shall be subjected to the judgment of a tribunal, taken indiscriminately from the whole people, without any choice by the government, and over which the government can exercise no control. If the government can select the jurors, it will, of course, select those whom it supposes will be favorable to its enactments. And an exclusion of any of the freemen from eligibility is a selection of those not excluded.

It will be seen, from the statutes cited, that the most absolute authority over the jury box—that is, over the right of the people to sit in juries—has been usurped by the government; Edition: current; Page: [149] that the qualifications of jurors have been repeatedly changed, and made to vary from a freehold of ten shillings yearly, to one of “twenty pounds by the year at least above reprises.” They have also been made different, in the counties of Southampton, Surrey, and Sussex, from what they were in the other counties; different in Wales from what they were in England; and different in the city of London, and in the county of Middlesex, from what they were in any other part of the kingdom.

But this is not all. The government has not only assumed arbitrarily to classify the people, on the basis of property, but it has even assumed to give to some of its judges entire and absolute personal discretion in the selection of the jurors to be impanelled in criminal cases, as the following statutes show.

This act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the end of the then next Parliament.

It was reënacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.)

These acts gave unlimited authority to the king’s justices to pack juries at their discretion; and abolished the last vestige of the common law right of the people to sit as jurors, and judge of their own liberties, in the courts to which the acts applied.

Yet, as matters of law, these statutes were no more clear violations of the common law, the fundamental and paramount “law of the land,” than were those statutes which affixed the property qualifications before named; because, if the king, or the government, can select the jurors on the ground of property, it can select them on any other ground whatever.

Any infringement or restriction of the common law right of the whole body of the freemen of the kingdom to eligibility as jurors, was legally an abolition of the trial by jury itself. The juries no longer represented “the country,” but only a part of the country; that part, too, on whose favor the government chose to rely for the maintenance of its power, and which it therefore saw fit to select as being the most reliable instruments for its purposes of oppression towards the rest. And the selection was made on the same principle, on which tyrannical governments generally select their supporters, viz., that of conciliating those who would be most dangerous as enemies, and most powerful as friends—that is, the wealthy.*

These restrictions, or indeed any one of them, of the right of eligibility as jurors, was, in principle, a complete abolition of the English constitution; or, at least, of its most vital and valuable part. It was, in principle, an assertion of a right, on the part of the government, to select the individuals who were to determine the authority of its own laws, and the extent of its own powers. It was, therefore, in effect, the assertion of a right, on the part of the government itself, to determine its own powers, and the authority of its own legislation, over the people; and a denial of all right, on the part of the people, to judge of or determine their own liberties against the government. It was, therefore, in reality, a declaration of entire absolutism on the part of the government. It was an act as purely despotic, in principle, as would have been the express abolition of all juries whatsoever. By “the law of the land,” which the kings were sworn to maintain, every free adult male British subject was eligible to the jury box, with full power to exercise his own judgment as to the authority and obligation of every statute of the king, which might come Edition: current; Page: [151] before him. But the principle of these statutes (fixing the qualifications of jurors) is, that nobody is to sit in judgment upon the acts or legislation of the king, or the government, except those whom the government itself shall select for that purpose. A more complete subversion of the essential principles of the English constitution could not be devised.

The juries of England are illegal for another reason, viz., that the statutes cited require the jurors (except in London and a few other places) to be freeholders. All the other free British subjects are excluded; whereas, at common law, all such subjects are eligible to sit in juries, whether they be freeholders or not.

It is true, the ancient common law required the jurors to be freeholders; but the term freeholder no longer expresses the same idea that it did in the ancient common law; because no land is now holden in England on the same principle, or by the same tenure, as that on which all the land was held in the early times of the common law.

As has heretofore been mentioned, in the early times of the common law the land was considered the property of the state; and was all holden by the tenants, so called, (that is, holders,) on the condition of their rendering certain military and civil services to the state, (or to the king as the representative of the state,) under the name of rents. Those who held lands on these terms were called free tenants, that is, free holders—meaning free persons, or members of the state, holding lands—to distinguish them from villeins, or serfs, who were not members of the state, but held their lands by a more servile tenure, and also to distinguish them from persons of foreign birth, outlaws, and all other persons, who were not members of the state.

Every freeborn adult male Englishman (who had not lost his civil rights by crime or otherwise) was entitled to land of right; that is, by virtue of his civil freedom, or membership of the body politic. Every member of the state was therefore a freeholder; and every freeholder was a member of the state. And the members of the state were therefore called freeholders. But what is material to be observed, is, that a man’s right to Edition: current; Page: [152] land was an incident to his civil freedom; not his civil freedom an incident to his right to land. He was a freeholder because he was a freeborn member of the state; and not a freeborn member of the state because he was a freeholder; for this last would be an absurdity.

As the tenures of lands changed, the term freeholder lost its original significance, and no longer described a man who held land of the state by virtue of his civil freedom, but only one who held it in fee-simple—that is, free of any liability to military or civil services. But the government, in fixing the qualifications of jurors, has adhered to the term freeholder after that term has ceased to express the thing originally designated by it.

The principle, then, of the common law, was, that every freeman, or freeborn male Englishman, of adult age, &c., was eligible to sit in juries, by virtue of his civil freedom, or his being a member of the state, or body politic. But the principle of the present English statutes is, that a man shall have a right to sit in juries because he owns lands in fee-simple. At the common law a man was born to the right to sit in juries. By the present statutes he buys that right when he buys his land. And thus this, the greatest of all the political rights of an Englishman, has become a mere article of merchandise; a thing that is bought and sold in the market for what it will bring.

Of course, there can be no legality in such juries as these; but only in juries to which every free or natural born adult male Englishman is eligible.

The second essential principle of the common law, controlling the selection of jurors, is, that when the selection of the actual jurors comes to be made, (from the whole body of male adults,) that selection shall be made in some mode that excludes the possibility of choice on the part of the government.

Of course, this principle forbids the selection to be made by any officer of the government.

There seem to have been at least three modes of selecting the jurors, at the common law. 1. By lot.* 2. Two knights, or other freeholders, were appointed, (probably by the sheriff,) Edition: current; Page: [153] to select the jurors. 3. By the sheriff, bailiff, or other person, who held the court, or rather acted as its ministerial officer. Probably the latter mode may have been the most common, although there may be some doubt on this point.

At the common law the sheriffs, bailiffs, and other officers were chosen by the people, instead of being oppointed by the king. (4 Blackstone, 413. Introduction to Gilbert’s History of the Common Pleas, p. 2, note, and p. 4.) This has been shown in a former chapter.* At common law, therefore, jurors selected by these officers were legally selected, so far as the principle now under discussion is concerned; that is, they were not selected by any officer who was dependent on the government.

But in the year 1315, one hundred years after Magna Carta, the choice of sheriffs was taken from the people, and it was enacted:

These officers, who appointed the sheriffs, were themselves appointed by the king, and held their offices during his pleasure. Their appointment of sheriffs was, therefore, equivalent to an appointment by the king himself. And the sheriffs, thus appointed, held their offices only during the pleasure of the king, and were of course mere tools of the king; and their selection of jurors was really a selection by the king himself. In this manner the king usurped the selection of the jurors who were to sit in judgment upon his own laws.

Here, then, was another usurpation, by which the common law trial by jury was destroyed, so far as related to the county courts, in which the sheriffs presided, and which were the most important courts of the kingdom. From this cause alone, if there were no other, there has not been a legal jury in a county court in England, for more than five hundred years.

In nearly or quite all the States of the United States the juries are illegal, for one or the other of the same reasons that make the juries in England illegal.

In order that the juries in the United States may be legal—that is, in accordance with the principles of the common law—it is necessary that every adult male member of the state should have his name in the jury box, or be eligible as a juror. Yet this is the case in hardly a single state.

In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the jurors are required to be freeholders. But this requirement is illegal, for the reason that the term freeholder, in this country, has no meaning analogous to the meaning it had in the ancient common law.

In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be “freeholders or householders.” Each of these requirements is illegal.

In Florida, they are required to be “householders.”

In Connecticut, Maine, Ohio, and Georgia, jurors are required to have the qualifications of “electors.”

In Virginia, they are required to have a property qualification of one hundred dollars.

In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana, Michigan, and Wisconsin, certain civil authorities of the towns, cities, and counties are authorized to select, once in one, two, or three years, a certain number of the people—a small number compared with the whole—from whom jurors are to be taken when wanted; thus disfranchising all except the few thus selected.

In Maine and Vermont, the inhabitants, by vote in town meeting, have a veto upon the jurors selected by the authorities of the town.

In Massachusetts, the inhabitants, by vote in town meeting, can strike out any names inserted by the authorities, and insert others; thus making jurors elective by the people, and, of course, representatives only of a majority of the people.

In Illinois, the jurors are selected, for each term of court, by the county commissioners.

In North Carolina, “the courts of pleas and quarter sessions * * shall select the names of such persons only as are freeholders, and as are well qualified to act as jurors, &c.; thus giving the courts power to pack the juries.”—(Revised Statutes, 147.)

In Arkansas, too, “It shall be the duty of the county court of each county * * to make out and cause to be delivered to the sheriff a list of not less than sixteen, nor more than twenty-three persons, qualified to serve as grand jurors;” and the sheriff is to summon such persons to serve as grand jurors.

In Tennessee, also, the jurors are to be selected by the county courts.

In Georgia, the jurors are to be selected by “the justices of the inferior courts of each county, together with the sheriff and clerk, or a majority of them.”

In Alabama, “the sheriff, judge of the county court, and clerks of the circuit and county courts,” or “a majority of” them, select the jurors.

In Virginia, the jurors are selected by the sheriffs; but the sheriffs are appointed by the governor of the state, and that is enough to make the juries illegal. Probably the same objection lies against the legality of the juries in some other states.

How jurors are appointed, and what are their qualifications, in New Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina, Kentucky, Iowa, Texas, and California, I know not. There is little doubt that there is some valid objection to them, of the kinds already suggested, in all these states.

In regard to jurors in the courts of the United States, it is enacted, by act of Congress:

In this corrupt and lawless manner, Congress, instead of taking care to preserve the trial by jury, so far as they might, by providing for the appointment of legal juries—incomparably the most important of all our judicial tribunals, and the only ones on which the least reliance can be placed for the preservation of liberty—have given the selection of them over entirely to the control of an indefinite number of state legislatures, and thus authorized each state legislature to adapt the juries of the United States to the maintenance of any and every system of tyranny that may prevail in such state.

Congress have as much constitutional right to give over all the functions of the United States government into the hands of the state legislatures, to be exercised within each state in such manner as the legislature of such state shall please to exercise them, as they have to thus give up to these legislatures the selection of juries for the courts of the United States.

There has, probably, never been a legal jury, nor a legal trial by jury, in a single court of the United States, since the adoption of the constitution.

These facts show how much reliance can be placed in written constitutions, to control the action of the government, and preserve the liberties of the people.

If the real trial by jury had been preserved in the courts of the United States—that is, if we had had legal juries, and the jurors had known their rights—it is hardly probable that one tenth of the past legislation of Congress would ever have been enacted, or, at least, that, if enacted, it could have been enforced.

Probably the best mode of appointing jurors would be this: Let the names of all the adult male members of the state, in each township, be kept in a jury box, by the officers of the township; and when a court is to be held for a county or other district, let the officers of a sufficient number of townships be required (without seeing the names) to draw out a name from their boxes respectively, to be returned to the court as a juror. This mode of appointment would guard against collusion and selection; and juries so appointed would be likely to be a fair epitome of “the country.”

CHAPTER VII.: ILLEGAL JUDGES.

It is a principle of Magna Carta, and therefore of the trial by jury, (for all parts of Magna Carta must be construed together,) that no judge or other officer appointed by the king, shall preside in jury trials, in criminal cases, or “pleas of the crown.”

This provision is contained in the great charters of both John and Henry, and is second in importance only to the provision guaranteeing the trial by jury, of which it is really a part. Consequently, without the observance of this prohibition; there can be no genuine or legal—that is, common law—trial by jury.

At the common law, all officers who held jury trials, whether in civil or criminal cases, were chosen by the people.*

But previous to Magna Carta, the kings had adopted the practice of sending officers of their own appointment, called justices, into the counties, to hold jury trials in some cases; and Magna Carta authorizes this practice to be continued so far as it relates to three kinds of civil actions, to wit: “novel disseisin, mort de ancestor, and darrein presentment;”* but specially forbids its being extended to criminal cases, or pleas of the crown.

This prohibition is in these words:

Some persons seem to have supposed that this was a prohibition merely upon officers bearing the specific names of “sheriffs, constables, coroners and bailiffs,” to hold criminal trials. But such is not the meaning. If it were, the name Edition: current; Page: [159] could be changed, and the thing retained; and thus the prohibition be evaded. The prohibition applies (as will presently be seen) to all officers of the king whatsoever; and it sets up a distinction between officers of the king, (“our bailiffs,”) and officers chosen by the people.

The prohibition upon the king’s justices sitting in criminal trials, is included in the words “vel alii balivi nostri,” (or other our bailiffs.) The word bailiff was anciently a sort of general name for judicial officers and persons employed in and about the administration of justice. In modern times its use, as applied to the higher grades of judicial officers, has been superseded by other words; and it therefore now, more generally, if not universally, signifies an executive or police officer, a servant of courts, rather than one whose functions are purely judicial.

The word is a French word, brought into England by the Normans.

Coke makes various references, in his margin to Bracton, Fleta, and other authorities, which I have not examined, but which, I presume, support the opinion expressed in this quotation.

Coke also, in another place, under the head of the chapter Edition: current; Page: [160] just cited from Magna Carta, that “no bailiff shall put any man to his open law,” &c., gives the following commentary upon it, from the Mirror of Justices, from which it appears that in the time of Edward I., (1272 to 1307,) this word balivus was understood to include all judicial, as well as all other, officers of the king.

Coke quotes this commentary, (in the original French,) and then endorses it in these words:

Coke also, in his commentary upon this very chapter of Magna Carta, that provides that “no sheriff, constable, coroner, or other our bailiffs, shall hold pleas of our crown,” expresses the opinion that it “is a general law,” (that is, applicable to all officers of the king,) “by reason of the words vel alii balivi nostri, (or other our bailiffs,) under which words are comprehended all judges or justices of any courts of justice.” And he cites a decision in the king’s bench, in the 17th year of Edward I., (1289,) as authority; which decision he calls “a notable and leading judgment.”—2 Inst., 30—1.

And yet Coke, in flat contradiction of this decision, which he quotes with such emphasis and approbation, and in flat contradiction also of the definition he repeatedly gives of the word balivus, showing that it embraced all ministers of the king whatsoever, whether high or low, judicial or executive, fabricates an entirely gratuitous interpretation of this chapter Edition: current; Page: [161] of Magna Carta, and pretends that after all it only required that felonies should be tried before the king’s justices, on account of their superior learning; and that it permitted all lesser offences to be tried before inferior officers, (meaning of course the king’s inferior officers.)—2 Inst., 30.

And thus this chapter of Magna Carta, which, according to his own definition of the word balivus, applies to all officers of the king; and which, according to the common and true definition of the term “pleas of the crown,” applies to all criminal cases without distinction, and which, therefore, forbids any officer or minister of the king to preside in a jury trial in any criminal case whatsoever, he coolly and gratuitously interprets into a mere senseless provision for simply restricting the discretion of the king in giving names to his own officers who should preside at the trials of particular offences; as if the king, who made and unmade all his officers by a word, could not defeat the whole object of the prohibition, by appointing such individuals as he pleased, to try such causes as he pleased, and calling them by such names as he pleased, if he were but permitted to appoint and name such officers at all; and as if it were of the least importance what name an officer bore, whom the king might appoint to a particular duty.*

Coke evidently gives this interpretation solely because, as he was giving a general commentary on Magna Carta, he was bound to give some interpretation or other to every chapter of it; and for this chapter he could invent, or fabricate, (for it is Edition: current; Page: [163] a sheer fabrication,) no interpretation better suited to his purpose than this. It seems never to have entered his mind, (or if it did, he intended that it should never enter the mind of anybody else,) that the object of the chapter could be to deprive the king of the power of putting his creatures into criminal courts, to pack, cheat, and browbeat juries, and thus maintain his authority by procuring the conviction of those who should transgress his laws, or incur his displeasure.

This example of Coke tends to show how utterly blind, or how utterly corrupt, English judges, (dependent upon the crown and the legislature), have been in regard to everything in Magna Carta, that went to secure the liberties of the people, or limit the power of the government.

Coke’s interpretation of this chapter of Magna Carta is of a piece with his absurd and gratuitous interpretation of the words “nec super eum ibimus, nec super eum mittemus,” which was pointed out in a former article, and by which he attempted to give a judicial power to the king and his judges, where Magna Carta had given it only to a jury. It is also of a piece with his pretence that there was a difference between Edition: current; Page: [164] fine and amercement, and that fines might be imposed by the king, and that juries were required only for fixing amercements.

These are some of the innumerable frauds by which the English people have been cheated out of the trial by jury.

Ex uno disce omnes. From one judge learn the characters of all.*

I give in the note additional and abundant authorities for Edition: current; Page: [165] the meaning ascribed to the word bailiff. The importance of the principle involved will be a sufficient excuse for such an accumulation of authorities as would otherwise be tedious and perhaps unnecessary.*

The foregoing interpretation of the chapter of Magna Carta now under discussion, is corroborated by another chapter of Edition: current; Page: [166] Magna Carta, which specially provides that the king’s justices shall “go through every county” to “take the assizes” (hold jury trials) in three kinds of civil actions, to wit, “novel disseisin, mort de ancestor, and darrein presentment;” but makes no mention whatever of their holding jury trials in criminal cases,—an omission wholly unlikely to be made, if it were Edition: current; Page: [167] designed they should attend the trial of such causes. Besides, the chapter here spoken of (in John’s charter) does not allow these justices to sit alone in jury trials, even in civil actions; but provides that four knights, chosen by the county, shall sit Edition: current; Page: [168] with them to keep them honest. When the king’s justices were known to be so corrupt and servile that the people would not even trust them to sit alone, in jury trials, in civil actions, Edition: current; Page: [169] how preposterous is it to suppose that they would not only suffer them to sit, but to sit alone, in criminal ones.

It is entirely incredible that Magna Carta, which makes such careful provision in regard to the king’s justices sitting in civil actions, should make no provision whatever as to their sitting in criminal trials, if they were to be allowed to sit in them at all. Yet Magna Carta has no provision whatever on the subject.*

But what would appear to make this matter absolutely certain is, that unless the prohibition that “no bailiff, &c., of ours shall hold pleas of our crown,” apply to all officers of the king, justices as well as others, it would be wholly nugatory for any practical or useful purpose, because the prohibition could be evaded by the king, at any time, by simply changing the titles of his officers. Instead of calling them “sheriffs, coroners, constables and bailiffs,” he could call them “justices,” or anything else he pleased; and this prohibition, so important to the liberty of the people, would then be entirely defeated. The king also could make and unmake “justices” at his pleasure; and if he could appoint any officers whatever to preside over juries in criminal trials, he could appoint any tool that he might at any time find adapted to his purpose. It was as easy to make justices of Jeffreys and Scroggs, as of any other material; and to have prohibited all the king’s officers, except his justices, from presiding in criminal trials, would therefore have been mere fool’s play.

We can all perhaps form some idea, though few of us will be likely to form any adequate idea, of what a different thing Edition: current; Page: [171] the trial by jury would have been in practice, and of what would have been the difference to the liberties of England, for five hundred years last past, had this prohibition of Magna Carta, upon the king’s officers sitting in the trial of criminal cases, been observed.

The principle of this chapter of Magna Carta, as applicable to the governments of the United States of America, forbids that any officer appointed either by the executive or legislative power, or dependent upon them for their salaries, or responsible to them by impeachment, should preside over a jury in criminal trials. To have the trial a legal (that is, a common law) and true trial by jury, the presiding officers must be chosen by the people, and be entirely free from all dependence upon, and all accountability to, the executive and legislative branches of the government.*

CHAPTER VIII.: THE FREE ADMINISTRATION OF JUSTICE.

The free administration of justice was a principle of the common law; and it must necessarily be a part of every system of government which is not designed to be an engine in the hands of the rich for the oppression of the poor.

In saying that the free administration of justice was a principle of the common law, I mean only that parties were subjected to no costs for jurors, witnesses, writs, or other necessaries for the trial, preliminary to the trial itself. Consequently, no one could lose the benefit of a trial, for the want of means to defray expenses. But after the trial, the plaintiff or defendant was liable to be amerced, (by the jury, of course,) for having troubled the court with the prosecution or defence of an unjust suit.* But it is not likely that the losing party was subjected to an amercement as a matter of course, but only in those cases where the injustice of his cause was so evident as to make him inexcusable in bringing it before the courts.

All the freeholders were required to attend the courts, that they might serve as jurors and witnesses, and do any other service that could legally be required of them; and their attendance was paid for by the state. In other words, their attendance and service at the courts were part of the rents which they paid the state for their lands.

The freeholders, who were thus required always to attend Edition: current; Page: [173] the courts, were doubtless the only witnesses who wereusually required in civil causes. This was owing to the fact that, in those days, when the people at large could neither write nor read, few contracts were put in writing. The expedient adopted for proving contracts, was that of making them in the presence of witnesses, who could afterwards testify to the transactions. Most contracts in regard to lands were made at the courts, in the presence of the freeholders there assembled.*

In the king’s courts it was specially provided by Magna Carta that “justice and right” should not be “sold;” that is, that the king should take nothing from the parties for administering justice.

The oath of a party to the justice of his cause was all that was necessary to entitle him to the benefit of the courts free of all expense; (except the risk of being amerced after the trial, in case the jury should think he deserved it.†)

This principle of the free administration of justice connects itself necessarily with the trial by jury, because a jury could not rightfully give judgment against any man, in either a civil or criminal case, if they had any reason to suppose he had been unable to procure his witnesses.

The true trial by jury would also compel the free administration of justice from another necessity, viz., that of preventing private quarrels; because, unless the government enforced a man’s rights and redressed his wrongs, free of expense to him, a jury would be bound to protect him in taking the law into his own hands. A man has a natural right to enforce his own rights and redress his own wrongs. If one man owe another a debt, and refuse to pay it, the creditor has a natural right to seize sufficient property of the debtor, wherever he Edition: current; Page: [174] can find it, to satisfy the debt. If one man commit a trespass upon the person, property or character of another, the injured party has a natural right, either to chastise the aggressor, or to take compensation for the injury out of his property. But as the government is an impartial party as between these individuals, it is more likely to do exact justice between them than the injured individual himself would do. The government, also, having more power at its command, is likely to right a man’s wrongs more peacefully than the injured party himself could do it. If, therefore, the government will do the work of enforcing a man’s rights, and redressing his wrongs, promptly, and free of expense to him, he is under a moral obligation to leave the work in the hands of the government; but not otherwise. When the government forbids him to enforce his own rights or redress his own wrongs, and deprives him of all means of obtaining justice, except on the condition of his employing the government to obtain it for him, and of paying the government for doing it, the government becomes itself the protector and accomplice of the wrong-doer. If the government will forbid a man to protect his own rights, it is bound to do it for him, free of expense to him. And so long as government refuses to do this, juries, if they knew their duties, would protect a man in defending his own rights.

Under the prevailing system, probably one half of the community are virtually deprived of all protection for their rights, except what the criminal law affords them. Courts of justice, for all civil suits, are as effectually shut against them, as though it were done by bolts and bars. Being forbidden to maintain their own rights by force,—as, for instance, to compel the payment of debts,—and being unable to pay the expenses of civil suits, they have no alternative but submission to many acts of injustice, against which the government is bound either to protect them, free of expense, or allow them to protect themselves.

There would be the same reason in compelling a party to pay the judge and jury for their services, that there is in compelling him to pay the witnesses, or any other necessary charges.*

This compelling parties to pay the expenses of civil suits is one of the many cases in which government is false to the fundamental principles on which free government is based. What is the object of government, but to protect men’s rights? On what principle does a man pay his taxes to the government, except on that of contributing his proportion towards the necessary cost of protecting the rights of all? Yet, when his own rights are actually invaded, the government, which he contributes to support, instead of fulfilling its implied contract, becomes his enemy, and not only refuses to protect his rights, (except at his own cost,) but even forbids him to do it himself.

All free government is founded on the theory of voluntary association; and on the theory that all the parties to it voluntarily pay their taxes for its support, on the condition of receiving protection in return. But the idea that any poor man would voluntarily pay taxes to build up a government, which will neither protect his rights, (except at a cost which he cannot meet,) nor suffer himself to protect them by such means as may be in his power, is absurd.

Under the prevailing system, a large portion of the lawsuits determined in courts, are mere contests of purses rather than of rights. And a jury, sworn to decide causes “according to the evidence” produced, are quite likely, for aught they themselves can know, to be deciding merely the comparative length of the parties’ purses, rather than the intrinsic strength of their respective rights. Jurors ought to refuse to decide a cause at all, except upon the assurance that all the evidence, necessary Edition: current; Page: [176] to a full knowledge of the cause, is produced. This assurance they can seldom have, unless the government itself produces all the witnesses the parties desire.

In criminal cases, the atrocity of accusing a man of crime, and then condemning him unless he prove his innocence at his own charges, is so evident that a jury could rarely, if ever, be justified in convicting a man under such circumstances.

But the free administration of justice is not only indispensable to the maintenance of right between man and man; it would also promote simplicity and stability in the laws. The mania for legislation would be, in an important degree, restrained, if the government were compelled to pay the expenses of all the suits that grew out of it.

The free administration of justice would diminish and nearly extinguish another great evil,—that of malicious civil suits. It is an old saying, that “multi litigant in foro, non ut aliquid lucrentur, sed ut vexant alios.” (Many litigate in court, not that they may gain anything, but that they may harass others.) Many men, from motives of revenge and oppression, are willing to spend their own money in prosecuting a groundless suit, if they can thereby compel their victims, who are less able than themselves to bear the loss, to spend money in the defence. Under the prevailing system, in which the parties pay the expenses of their suits, nothing but money is necessary to enable any malicious man to commence and prosecute a groundless suit, to the terror, injury, and perhaps ruin, of another man. In this way, a court of justice, into which none but a conscientious plaintiff certainly should ever be allowed to enter, becomes an arena into which any rich and revengeful oppressor may drag any man poorer than himself, and harass, terrify, and impoverish him, to almost any extent. It is a scandal and an outrage, that government should suffer itself to be made an instrument, in this way, for the gratification of private malice. We might nearly as well have no courts of justice, as to throw them open, as we do, for such flagitious uses. Yet the evil probably admits of no remedy except a free administration of justice. Under a free system, plaintiffs could rarely be influenced by motives of this kind; because they could put their victim to little or no expense, neither Edition: current; Page: [177] pending the suit, (which it is the object of the oppressor to do,) nor at its termination. Besides, if the ancient common law practice should be adopted, of amercing a party for troubling the courts with groundless suits, the prosecutor himself would, in the end, be likely to be amerced by the jury, in such a manner as to make courts of justice a very unprofitable place for a man to go to seek revenge.

In estimating the evils of this kind, resulting from the present system, we are to consider that they are not, by any means, confined to the actual suits in which this kind of oppression is practised; but we are to include all those cases in which the fear of such oppression is used as a weapon to compel men into a surrender of their rights.

CHAPTER IX.: THE CRIMINAL INTENT.

It is a maxim of the common law that there can be no crime without a criminal intent. And it is a perfectly clear principle, although one which judges have in a great measure overthrown in practice, that jurors are to judge of the moral intent of an accused person, and hold him guiltless, whatever his act, unless they find him to have acted with a criminal intent; that is, with a design to do what he knew to be criminal.

This principle is clear, because the question for a jury to determine is, whether the accused be guilty, or not guilty. Guilt is a personal quality of the actor,—not necessarily involved in the act, but depending also upon the intent or motive with which the act was done. Consequently, the jury must find that he acted from a criminal motive, before they can declare him guilty.

There is no moral justice in, nor any political necessity for, punishing a man for any act whatever that he may have committed, if he have done it without any criminal intent. There can be no moral justice in punishing for such an act, because, there having been no criminal motive, there can have been no other motive which justice can take cognizance of, as demanding or justifying punishment. There can be no political necessity for punishing, to warn against similar acts in future, because, if one man have injured another, however unintentionally, he is liable, and justly liable, to a civil suit for damages; and in this suit he will be compelled to make compensation for the injury, notwithstanding his innocence of any intention to injure. He must bear the consequences of his own act, instead of throwing them upon another, however innocent Edition: current; Page: [179] he may have been of any intention to do wrong. And the damages he will have to pay will be a sufficient warning to him not to do the like act again.

If it be alleged that there are crimes against the public, (as treason, for example, or any other resistance to government,) for which private persons can recover no damages, and that there is a political necessity for punishing for such offences, even though the party acted conscientiously, the answer is,—the government must bear with all resistance that is not so clearly wrong as to give evidence of criminal intent. In other words, the government, in all its acts, must keep itself so clearly within the limits of justice, as that twelve men, taken at random, will all agree that it is in the right, or it must incur the risk of resistance, without any power to punish it. This is the mode in which the trial by jury operates to prevent the government from falling into the hands of a party, or a faction, and to keep it within such limits as all, or substantially all, the people are agreed that it may occupy.

This necessity for a criminal intent, to justify conviction, is proved by the issue which the jury are to try, and the verdict they are to pronounce. The “issue” they are to try is, “guilty,” or “not guilty.” And those are the terms they are required to use in rendering their verdicts. But it is a plain falsehood to say that a man is “guilty,” unless he have done an act which he knew to be criminal.

This necessity for a criminal intent—in other words, for guilt—as a preliminary to conviction, makes it impossible that a man can be rightfully convicted for an act that is intrinsically innocent, though forbidden by the government; because guilt is an intrinsic quality of actions and motives, and not one that can be imparted to them by arbitrary legislation. All the efforts of the government, therefore, to “make offences by statute,” out of acts that are not criminal by nature, must necessarily be ineffectual, unless a jury will declare a man “guilty” for an act that is really innocent.

The corruption of judges, in their attempts to uphold the arbitrary authority of the government, by procuring the conviction of individuals for acts innocent in themselves, and forbidden only by some tyrannical statute, and the commission Edition: current; Page: [180] of which therefore indicates no criminal intent, is very apparent.

To accomplish this object, they have in modern times held it to be unnecessary that indictments should charge, as by the common law they were required to do, that an act was done “wickedly,” “feloniously,” “with malice aforethought,” or in any other manner that implied a criminal intent, without which there can be no criminality; but that it is sufficient to charge simply that it was done “contrary to the form of the statute in such case made and provided.” This form of indictment proceeds plainly upon the assumption that the government is absolute, and that it has authority to prohibit any act it pleases, however innocent in its nature the act may be. Judges have been driven to the alternative of either sanctioning this new form of indictment, (which they never had any constitutional right to sanction,) or of seeing the authority of many of the statutes of the government fall to the ground; because the acts forbidden by the statutes were so plainly innocent in their nature, that even the government itself had not the face to allege that the commission of them implied or indicated any criminal intent.

To get rid of the necessity of showing a criminal intent, and thereby further to enslave the people, by reducing them to the necessity of a blind, unreasoning submission to the arbitrary will of the government, and of a surrender of all right, on their own part, to judge what are their constitutional and natural rights and liberties, courts have invented another idea, which they have incorporated among the pretended maxims, upon which they act in criminal trials, viz., that “ignorance of the law excuses no one.” As if it were in the nature of things possible that there could be an excuse more absolute and complete. What else than ignorance of the law is it that excuses persons under the years of discretion, and men of imbecile minds? What else than ignorance of the law is it that excuses judges themselves for all their erroneous decisions? Nothing. They are every day committing errors, which would be crimes, but for their ignorance of the law. And yet these same judges, who claim to be learned in the law, and who yet could not hold their offices for a day, but for the Edition: current; Page: [181] allowance which the law makes for their ignorance, are continually asserting it to be a “maxim” that “ignorance of the law excuses no one;” (by which, of course, they really mean that it excuses no one but themselves; and especially that it excuses no unlearned man, who comes before them charged with crime.)

This preposterous doctrine, that “ignorance of the law excuses no one,” is asserted by courts because it is an indispensable one to the maintenance of absolute power in the government. It is indispensable for this purpose, because, if it be once admitted that the people have any rights and liberties which the government cannot lawfully take from them, then the question arises in regard to every statute of the government, whether it be law, or not; that is, whether it infringe, or not, the rights and liberties of the people. Of this question every man must of course judge according to the light in his own mind. And no man can be convicted unless the jury find, not only that the statute is law,—that it does not infringe the rights and liberties of the people,—but also that it was so clearly law, so clearly consistent with the rights and liberties of the people, as that the individual himself, who transgressed it, knew it to be so, and therefore had no moral excuse for transgressing it. Governments see that if ignorance of the law were allowed to excuse a man for any act whatever, it must excuse him for transgressing all statutes whatsoever, which he himself thinks inconsistent with his rights and liberties. But such a doctrine would of course be inconsistent with the maintenance of arbitrary power by the government; and hence governments will not allow the plea, although they will not confess their true reasons for disallowing it.

The only reasons, (if they deserve the name of reasons), that I ever knew given for the doctrine that ignorance of the law excuses no one, are these:

This reason impliedly admits that ignorance of the law is, intrinsically, an ample and sufficient excuse for a crime; and that the excuse ought to be allowed, if the fact of ignorance could but be ascertained. But it asserts that this fact is incapable of being ascertained, and that therefore there is a necessity for punishing the ignorant and the knowing—that is, the innocent and the guilty—without discrimination.

This reason is worthy of the doctrine it is used to uphold; as if a plea of ignorance, any more than any other plea, must necessarily be believed simply because it is urged; and as if it were not a common and every-day practice of courts and juries, in both civil and criminal cases, to determine the mental capacity of individuals; as, for example, to determine whether they are of sufficient mental capacity to make reasonable contracts; whether they are lunatic; whether they are compotes mentis, “of sound mind and memory,” &c. &c. And there is obviously no more difficulty in a jury’s determining whether an accused person knew the law in a criminal case, than there is in determining any of these other questions that are continually determined in regard to a man’s mental capacity. For the question to be settled by the jury is not whether the accused person knew the particular penalty attached to his act, (for at common law no one knew what penalty a jury would attach to an offence,) but whether he knew that his act was intrinsically criminal. If it were intrinsically criminal, it was criminal at common law. If it was not intrinsically criminal, it was not criminal at common law. (At least, such was the general principle of the common law. There may have been exceptions in practice, owing to the fact that the opinions of men, as to what was intrinsically criminal, may not have been in all cases correct.)

A jury, then, in judging whether an accused person knew his act to be illegal, were bound first to use their own judgments, as to whether the act were intrinsically criminal. If their own judgments told them the act was intrinsically and clearly criminal, they would naturally and reasonably infer that the accused also understood that it was intrinsically criminal, (and consequently illegal,) unless it should appear that he was either below themselves in the scale of intellect, or had Edition: current; Page: [183] had less opportunities of knowing what acts were criminal. In short, they would judge, from any and every means they might have of judging; and if they had any reasonable doubt that he knew his act to be criminal in itself, they would be bound to acquit him.

The second reason that has been offered for the doctrine that ignorance of the law excuses no one, is this:

The sum of this reason is, that ignorance of the law excuses no one, (who is of the age of discretion and is compos mentis,) because every such person “is bound to know the law.” But this is giving no reason at all for the doctrine, since saying that a man “is bound to know the law,” is only saying, in another form, that “ignorance of the law does not excuse him.” There is no difference at all in the two ideas. To say, therefore, that “ignorance of the law excuses no one, because every one is bound to know the law,” is only equivalent to saying that “ignorance of the law excuses no one, because ignorance of the law excuses no one.” It is merely reässerting the doctrine, without giving any reason at all.

And yet these reasons, which are really no reasons at all, are the only ones, so far as I know, that have ever been offered for this absurd and brutal doctrine.

The idea suggested, that “the age of discretion” determines the guilt of a person,—that there is a particular age, prior to which all persons alike should be held incapable of knowing any crime, and subsequent to which all persons alike should be held capable of knowing all crimes,—is another of this most ridiculous nest of ideas. All mankind acquire their knowledge of crimes, as they do of other things, gradually. Some they learn at an early age; others not till a later one. One individual Edition: current; Page: [184] acquires a knowledge of crimes, as he does of arithmetic, at an earlier age than others do. And to apply the same presumption to all, on the ground of age alone, is not only gross injustice, but gross folly. A universal presumption might, with nearly or quite as much reason, be founded upon weight, or height, as upon age.*

This doctrine, that “ignorance of the law excuses no one,” is constantly repeated in the form that “every one is bound to know the law.” The doctrine is true in civil matters, especially in contracts, so far as this: that no man, who has the ordinary capacity to make reasonable contracts, can escape the consequences of his own agreement, on the ground that he did not know the law applicable to it. When a man makes a contract, he gives the other party rights; and he must of necessity judge for himself, and take his own risk, as to what those rights are,—otherwise the contract would not be binding, and men could not make contracts that would convey rights to each other. Besides, the capacity to make reasonable contracts, Edition: current; Page: [185] implies and includes a capacity to form a reasonable judgment as to the law applicable to them. But in criminal matters, where the question is one of punishment, or not; where no second party has acquired any right to have the crime punished, unless it were committed with criminal intent, (but only to have it compensated for by damages in a civil suit;) and when the criminal intent is the only moral justification for the punishment, the principle does not apply, and a man is bound to know the law only as well as he reasonably may. The criminal law requires neither impossibilities nor extraordinaries of any one. It requires only thoughtfulness and a good conscience. It requires only that a man fairly and properly use the judgment he possesses, and the means he has of learning his duty. It requires of him only the same care to know his duty in regard to the law, that he is morally bound to use in other matters of equal importance. And this care it does require of him. Any ignorance of the law, therefore, that is unnecessary, or that arises from indifference or disregard of one’s duty, is no excuse. An accused person, therefore, may be rightfully held responsible for such a knowledge of the law as is common to men in general, having no greater natural capacities than himself, and no greater opportunities for learning the law. And he can rightfully be held to no greater knowledge of the law than this. To hold him responsible for a greater knowledge of the law than is common to mankind, when other things are equal, would be gross injustice and cruelty. The mass of mankind can give but little of their attention to acquiring a knowledge of the law. Their other duties in life forbid it. Of course, they cannot investigate abstruse or difficult questions. All that can rightfully be required of each of them, then, is that he exercise such a candid and conscientious judgment as it is common for mankind generally to exercise in such matters. If he have done this, it would be monstrous to punish him criminally for his errors; errors not of conscience, but only of judgment. It would also be contrary to the first principles of a free government (that is, a government formed by voluntary association) to punish men in such cases, because it would be absurd to suppose that any man would voluntarily assist to establish or support a government Edition: current; Page: [186] that would punish himself for acts which he himself did not know to be crimes. But a man may reasonably unite with his fellow-men to maintain a government to punish those acts which he himself considers criminal, and may reasonably acquiesce in his own liability to be punished for such acts. As those are the only grounds on which any one can be supposed to render any voluntary support to a government, it follows that a government formed by voluntary association, and of course having no powers except such as all the associates have consented that it may have, can have no power to punish a man for acts which he did not himself know to be criminal.

The safety of society, which is the only object of the criminal law, requires only that those acts which are understood by mankind at large to be intrinsically criminal, should be punished as crimes. The remaining few (if there are any) may safely be left to go unpunished. Nor does the safety of society require that any individuals, other than those who have sufficient mental capacity to understand that their acts are criminal, should be criminally punished. All others may safely be left to their liability, under the civil law, to compensate for their unintentional wrongs.

The only real object of this absurd and atrocious doctrine, that “ignorance of the law (that is, of crime) excuses no one,” and that “every one is bound to know the criminal law,” (that is, bound to know what is a crime,) is to maintain an entirely arbitrary authority on the part of the government, and to deny to the people all right to judge for themselves what their own rights and liberties are. In other words, the whole object of the doctrine is to deny to the people themselves all right to judge what statutes and other acts of the government are consistent or inconsistent with their own rights and liberties; and thus to reduce the people to the condition of mere slaves to a despotic power, such as the people themselves would never have voluntarily established, and the justice of whose laws the people themselves cannot understand.

Under the true trial by jury all tyranny of this kind would be abolished. A jury would not only judge what acts were really criminal, but they would judge of the mental capacity of an accused person, and of his opportunities for understanding Edition: current; Page: [187] the true character of his conduct. In short, they would judge of his moral intent from all the circumstances of the case, and acquit him, if they had any reasonable doubt that he knew that he was committing a crime.*

CHAPTER X.: MORAL CONSIDERATIONS FOR JURORS.

The trial by jury must, if possible, be construed to be such that a man can rightfully sit in a jury, and unite with his fellows in giving judgment. But no man can rightfully do this, unless he hold in his own hand alone a veto upon any judgment or sentence whatever to be rendered by the jury against a defendant, which veto he must be permitted to use according to his own discretion and conscience, and not bound to use according to the dictation of either legislatures or judges.

The prevalent idea, that a juror may, at the mere dictation of a legislature or a judge, and without the concurrence of his own conscience or understanding, declare a man “guilty,” and thus in effect license the government to punish him; and that the legislature or the judge, and not himself, has in that case all the moral responsibility for the correctness of the principles on which the judgment was rendered, is one of the many gross impostures by which it could hardly have been supposed that any sane man could ever have been deluded, but which governments have nevertheless succeeded in inducing the people at large to receive and act upon.

As a moral proposition, it is perfectly self-evident that, unless juries have all the legal rights that have been claimed for them in the preceding chapters,—that is, the rights of judging what the law is, whether the law be a just one, what evidence is admissible, what weight the evidence is entitled to, whether an act were done with a criminal intent, and the right also to limit the sentence, free of all dictation from any quarter,—they have no moral right to sit in the trial at all, and cannot do so without making themselves accomplices in any injustice that they may have reason to believe may result from their Edition: current; Page: [190] verdict. It is absurd to say that they have no moral responsibility for the use that may be made of their verdict by the government, when they have reason to suppose it will be used for purposes of injustice.

It is, for instance, manifestly absurd to say that jurors have no moral responsibility for the enforcement of an unjust law, when they consent to render a verdict of guilty for the transgression of it; which verdict they know, or have good reason to believe, will be used by the government as a justification for inflicting a penalty.

It is absurd, also, to say that jurors have no moral responsibility for a punishment inflicted upon a man against law, when, at the dictation of a judge as to what the law is, they have consented to render a verdict against their own opinions of the law.

It is absurd, too, to say that jurors have no moral responsibility for the conviction and punishment of an innocent man, when they consent to render a verdict against him on the strength of evidence, or laws of evidence, dictated to them by the court, if any evidence or laws of evidence have been excluded, which they (the jurors) think ought to have been admitted in his defence.

It is absurd to say that jurors have no moral responsibility for rendering a verdict of “guilty” against a man, for an act which he did not know to be a crime, and in the commission of which, therefore, he could have had no criminal intent, in obedience to the instructions of courts that “ignorance of the law (that is, of crime) excuses no one.”

It is absurd, also, to say that jurors have no moral responsibility for any cruel or unreasonable sentence that may be inflicted even upon a guilty man, when they consent to render a verdict which they have reason to believe will be used by the government as a justification for the infliction of such sentence.

The consequence is, that jurors must have the whole case in their hands, and judge of law, evidence, and sentence, or they incur the moral responsibility of accomplices in any injustice which they have reason to believe will be done by the government on the authority of their verdict.

The same principles apply to civil cases as to criminal. If a jury consent, at the dictation of the court, as to either law or evidence, to render a verdict, on the strength of which they have reason to believe that a man’s property will be taken from him and given to another, against their own notions of justice, they make themselves morally responsible for the wrong.

Every man, therefore, ought to refuse to sit in a jury, and to take the oath of a juror, unless the form of the oath be such as to allow him to use his own judgment, on every part of the case, free of all dictation whatsoever, and to hold in his own hand a veto upon any verdict that can be rendered against a defendant, and any sentence that can be inflicted upon him, even if he be guilty.

Of course, no man can rightfully take an oath as juror, to try a case “according to law,” (if by law be meant anything other than his own ideas of justice,) nor “according to the law and the evidence, as they shall be given him.” Nor can he rightfully take an oath even to try a case “according to the evidence,” because in all cases he may have good reason to believe that a party has been unable to produce all the evidence legitimately entitled to be received. The only oath which it would seem that a man can rightfully take as juror, in either a civil or criminal case, is, that he “will try the case according to his conscience.” Of course, the form may admit of variation, but this should be the substance. Such, we have seen, were the ancient common law oaths.

CHAPTER XI.: AUTHORITY OF MAGNA CARTA.

Probably no political compact between king and people was ever entered into in a manner to settle more authoritatively the fundamental law of a nation, than was Magna Carta. Probably no people were ever more united and resolute in demanding from their king a definite and unambiguous acknowledgment of their rights and liberties, than were the English at that time. Probably no king was ever more completely stripped of all power to maintain his throne, and at the same time resist the demands of his people, than was John on the 15th day of June, 1215. Probably no king every consented, more deliberately or explicitly, to hold his throne subject to specific and enumerated limitations upon his power, than did John when he put his seal to the Great Charter of the Liberties of England. And if any political compact between king and people was ever valid to settle the liberties of the people, or to limit the power of the crown, that compact is now to be found in Magna Carta. If, therefore, the constitutional authority of Magna Carta had rested solely upon the compact of John with his people, that authority would have been entitled to stand forever as the supreme law of the land, unless revoked by the will of the people themselves.

But the authority of Magna Carta does not rest alone upon the compact with John. When, in the next year, (1216,) his son, Henry III., came to the throne, the charter was ratified by him, and again in 1217, and again in 1225, in substantially the same form, and especially without allowing any new powers, legislative, judicial, or executive, to the king or his judges, and without detracting in the least from the powers of the jury. And from the latter date to this, the charter has remained unchanged.

In the course of two hundred years the charter was confirmed by Henry and his successors more than thirty times. And although they were guilty of numerous and almost continual breaches of it, and were constantly seeking to evade it, yet such were the spirit, vigilance and courage of the nation, that the kings held their thrones only on the condition of their renewed and solemn promises of observance. And it was not until 1429, (as will be more fully shown hereafter,) when a truce between themselves, and a formal combination against the mass of the people, had been entered into, by the king, the nobility, and the “forty shilling freeholders,” (a class whom Mackintosh designates as “a few freeholders then accounted wealthy,”*) by the exclusion of all others than such freeholders from all voice in the election of knights to represent the counties in the House of Commons, that a repetition of these confirmations of Magna Carta ceased to be demanded and obtained.†

The terms and the formalities of some of these “confirmations” make them worthy of insertion at length.

Hume thus describes one which took place in the 38th year of Henry III. (1253):

The following is the form of “the sentence of excommunication” referred to by Hume:

One of the Confirmations of the Charters, by Edward I., was by statute, in the 25th year of his reign, (1297,) in the following terms. The statute is usually entitled “Confirmatio Cartarum,” (Confirmation of the Charters.)

Ch. 1. “Edward, by the Grace of God, King of England, Lord of Ireland, and Duke of Guyan, To all those that these presents shall hear or see, Greeting. Know ye, that We, to the honor of God, and of Holy Church, and to the profit of our Realm, have granted, for us and our heirs, that the Charter of Liberties, and the Charter of the Forest, which were made by common assent of all the Realm, in the time of King Henry our Father, shall be kept in every point without breach. And we will that the same Charters shall be sent under our seal, as well to our justices of the Forest, as to others, and to all Sheriffs of shires, and to all our other officers, and to all our cities throughout the Realm, together with our writs, in the which it shall be contained, that they cause the aforesaid Charters to be published, and to declare to the people that We have confirmed them at all points; and to our Justices, Sheriffs, Mayors, and other ministers, which under us have the Laws of our Land to guide, that they allow the same Charters, in all their points, in pleas before them, and in judgment; that is, to wit, the Great Charter as the Common Law, and the Charter of the Forest for the wealth of our Realm.

Ch. 2. “And we will that if any judgment be given from henceforth contrary to the points of the charters aforesaid by the justices, or by any others our ministers that hold plea before them, against the points of the Charters, it shall be undone and holden for naught.

Ch. 3. “And we will, that the same Charters shall be sent, under our seal, to Cathedral Churches throughout our Realm, there to remain, and shall be read before the people two times in the year.

Ch. 4. “And that all Archbishops and Bishops shall pronounce the sentence of excommunication against all those that by word, deed, or counsel, do contrary to the foresaid charters, or that in any point break or undo them. And that the said Curses be twice a year denounced and published by the prelates aforesaid. And if the same prelates, or any of them, be remiss in the denunciation of the said sentences, the Archbishops of Canterbury and York, for the time being, shall compel and distrain them to make the denunciation in the form aforesaid.”—St. 25 Edward I., (1297.) Statutes of the Realm, vol. 1, p. 123.

It is unnecessary to repeat the terms of the various confirmations, most of which were less formal than those that have been given, though of course equally authoritative. Most of them are brief, and in the form of a simple statute, or promise, to the effect that “The Great Charter, and the Charter of the Forest, shall be firmly kept and maintained in all points.” They are to be found printed with the other statutes of the realm. One of them, after having “again granted, renewed and confirmed” the charters, requires as follows:

Coke says Magna Carta was confirmed thirty-two times.—Preface to 2 Inst., p. 6.

Coke, who has labored so hard to overthrow the most vital principles of Magna Carta, and who, therefore, ought to be considered good authority when he speaks in its favor,* says:

Coke also says, “All pretence of prerogative against Magna Charta is taken away.”—2 Inst., 36.

He also says, “That after this parliament (52 Henry III., in 1267) neither Magna Carta nor Carta de Foresta was ever attempted to be impugned or questioned.”—2 Inst., 102.*

To give all the evidence of the authority of Magna Carta, it would be necessary to give the constitutional history of England since the year 1215. This history would show that Magna Carta, although continually violated and evaded, was still acknowledged Edition: current; Page: [200] as law by the government, and was held up by the people as the great standard and proof of their rights and liberties. Edition: current; Page: [201] It would show also that the judicial tribunals, whenever it suited their purposes to do so, were in the habit of referring to Magna Carta as authority, in the same manner, and with the same real or pretended veneration, with which American courts now refer to the constitution of the United States, or the constitutions of the states. And, what is equally to the point, it would show that these same tribunals, the mere tools of kings and parliaments, would resort to the same artifices of assumption, precedent, construction, and false interpretation, to evade the requirements of Magna Carta, and to emasculate it of all its power for the preservation of liberty, that are resorted to by American courts to accomplish the same work on our American constitutions.

I take it for granted, therefore, that if the authority of Magna Carta had rested simply upon its character as a compact between the king and the people, it would have been forever binding upon the king, (that is, upon the government, for the king was the government,) in his legislative, judicial, and executive character; and that there was no constitutional posibility of his escaping from its restraints, unless the people themselves should freely discharge him from them.

But the authority of Magna Carta does not rest, either wholly or mainly, upon its character as a compact. For centuries before the charter was granted, its main principles constituted “the Law of the Land,”—the fundamental and constitutional law of the realm, which the kings were sworn to maintain. And the principal benefit of the charter was, that it contained a written description and acknowledgment, by the king himself, of what the constitutional law of the kingdom was, which his coronation oath bound him to observe. Previous to Magna Carta, this constitutional law rested mainly in precedents, customs, and the memories of the people. And if the king could but make one innovation upon this law, without arousing resistance, and being compelled to retreat from his usurpation, he would cite that innovation as a precedent for another act of the same kind; next, assert a custom; and, finally, raise a controversy as to what the Law of the Land really was. The great object of the barons and people, in demanding from the king a written description and acknowledgment Edition: current; Page: [202] of the Law of the Land, was to put an end to all disputes of this kind, and to put it out of the power of the king to plead any misunderstanding of the constitutional law of the kingdom. And the charter, no doubt, accomplished very much in this way. After Magna Carta, it required much more audacity, cunning, or strength, on the part of the king, than it had before, to invade the people’s liberties with impunity. Still, Magna Carta, like all other written constitutions, proved inadequate to the full accomplishment of its purpose; for when did a parchment ever have power adequately to restrain a government, that had either cunning to evade its requirements, or strength to overcome those who attempted its defence? The work of usurpation, therefore, though seriously checked, still went on, to a great extent, after Magna Carta. Innovations upon the Law of the Land are still made by the government. One innovation was cited as a precedent; precedents made customs; and customs became laws, so far as practice was concerned; until the government, composed of the king, the high functionaries of the church, the nobility, a House of Commons representing the “forty shilling freeholders,” and a dependent and servile judiciary, all acting in conspiracy against the mass of the people, became practically absolute, as it is at this day.

As proof that Magna Carta embraced little else than what was previously recognized as the common law, or Law of the Land, I repeat some authorities that have been already cited.

Edward the First confessed that the Great Charter was substantially identical with the common law, as far as it went, when he commanded his justices to allow “the Great Charter as the Common Law,” “in pleas before them, and in judgment,” as has been already cited in this chapter.—25 Edward I., ch. 1, (1297.)

In conclusion of this chapter, it may be safely asserted that the veneration, attachment, and pride, which the English nation, for more than six centuries, have felt towards Magna Carta, are in their nature among the most irrefragable of all proofs that it was the fundamental law of the land, and constitutionally binding upon the government; for, otherwise, it would have been, in their eyes, an unimportant and worthless thing. What those sentiments were I will use the words of others to describe,—the words, too, of men, who, like all modern authors who have written on the same topic, had utterly inadequate ideas of the true character of the instrument on which they lavished their eulogiums.

Hume, speaking of the Great Charter and the Charter of the Forest, as they were confirmed by Henry III., in 1217, says:

Of the Great Charter, the trial by jury is the vital part, and the only part that places the liberties of the people in their own keeping. Of this Blackstone says:

The liberties of England cannot but subsist so long as this palladium remains sacred and inviolate, not only from all Edition: current; Page: [205] open attacks, which none will be so hardy as to make, but also from all secret machinations which may sap and undermine it.”*

An old book, called “English Liberties,” says:

CHAPTER XII.: LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY.

The principal objection, that will be made to the doctrine of this essay, is, that under it, a jury would paralyze the power of the majority, and veto all legislation that was not in accordance with the will of the whole, or nearly the whole, people.

The answer to this objection is, that the limitation, which would be thus imposed upon the legislative power, (whether that power be vested in the majority, or minority, of the people,) is the crowning merit of the trial by jury. It has other merits; but, though important in themselves, they are utterly insignificant and worthless in comparison with this.

It is this power of vetoing all partial and oppressive legislation, and of restricting the government to the maintenance of such laws as the whole, or substantially the whole, people are agreed in, that makes the trial by jury “the palladium of liberty.” Without this power it would never have deserved that name.

The will, or the pretended will, of the majority, is the last lurking place of tyranny at the present day. The dogma, that certain individuals and families have a divine appointment to govern the rest of mankind, is fast giving place to the one that the larger number have a right to govern the smaller; a dogma, which may, or may not, be less oppressive in its practical operation, but which certainly is no less false or tyrannical in principle, than the one it is so rapidly supplanting. Obviously there is nothing in the nature of majorities, that insures justice at their hands. They have the same passions as minorities, and they have no qualities whatever that should be expected to prevent them from practising the same tyranny Edition: current; Page: [207] as minorities, if they think it will be for their interest to do so.

There is no particle of truth in the notion that the majority have a right to rule, or to exercise arbitrary power over, the minority, simply because the former are more numerous than the latter. Two men have no more natural right to rule one, than one has to rule two. Any single man, or any body of men, many or few, have a natural right to maintain justice for themselves, and for any others who may need their assistance, against the injustice of any and all other men, without regard to their numbers; and majorities have no right to do any more than this. The relative numbers of the opposing parties have nothing to do with the question of right. And no more tyrannical principle was ever avowed, than that the will of the majority ought to have the force of law, without regard to its justice; or, what is the same thing, that the will of the majority ought always to be presumed to be in accordance with justice. Such a doctrine is only another form of the doctrine that might makes right.

When two men meet one upon the highway, or in the wilderness, have they a right to dispose of his life, liberty, or property at their pleasure, simply because they are the more numerous party? Or is he bound to submit to lose his life, liberty, or property, if they demand it, merely because he is the less numerous party? Or, because they are more numerous than he, is he bound to presume that they are governed only by superior wisdom, and the principles of justice, and by no selfish passion that can lead them to do him a wrong? Yet this is the principle, which it is claimed should govern men in all their civil relations to each other. Mankind fall in company with each other on the highway or in the wilderness of life, and it is claimed that the more numerous party, simply by virtue of their superior numbers, have the right arbitrarily to dispose of the life, liberty, and property of the minority; and that the minority are bound, by reason of their inferior numbers, to practise abject submission, and consent to hold their natural rights,—any, all, or none, as the case may be,—at the mere will and pleasure of the majority; as if all a man’s natural rights expired, or were suspended by the operation of Edition: current; Page: [208] a paramount law, the moment he came into the presence of superior numbers.

If such be the true nature of the relations men hold to each other in this world, it puts an end to all such things as crimes, unless they be perpetrated upon those who are equal or superior, in number, to the actors. All acts committed against persons inferior in number to the aggressors, become but the exercise of rightful authority. And consistency with their own principles requires that all governments, founded on the will of the majority, should recognize this plea as a sufficient justification for all crimes whatsoever.

If it be said that the majority should be allowed to rule, not because they are stronger than the minority, but because their superior numbers furnish a probability that they are in the right; one answer is, that the lives, liberties, and properties of men are too valuable to them, and the natural presumptions are too strong in their favor, to justify the destruction of them by their fellow-men on a mere balancing of probabilities, or on any ground whatever short of certainty beyond a reasonable doubt. This last is the moral rule universally recognized to be binding upon single individuals. And in the forum of conscience the same rule is equally binding upon governments, for governments are mere associations of individuals. This is the rule on which the trial by jury is based. And it is plainly the only rule that ought to induce a man to submit his rights to the adjudication of his fellow-men, or dissuade him from a forcible defence of them.

Another answer is, that if two opposing parties could be supposed to have no personal interests or passions involved, to warp their judgments, or corrupt their motives, the fact that one of the parties was more numerous than the other, (a fact that leaves the comparative intellectual competency of the two parties entirely out of consideration,) might, perhaps, furnish a slight, but at best only a very slight, probability that such party was on the side of justice. But when it is considered that the parties are liable to differ in their intellectual capacities, and that one, or the other, or both, are undoubtedly under the influence of such passions as rivalry, hatred, avarice, and ambition,—passions that are nearly certain to pervert their Edition: current; Page: [209] judgments, and very likely to corrupt their motives,—all probabilities founded upon a mere numerical majority, in one party, or the other, vanish at once; and the decision of the majority becomes, to all practical purposes, a mere decision of chance. And to dispose of men’s properties, liberties, and lives, by the mere process of enumerating such parties, is not only as palpable gambling as was ever practised, but it is also the most atrocious that was ever practised, except in matters of government. And where government is instituted on this principle, (as in the United States, for example,) the nation is at once converted into one great gambling establishment; where all the rights of men are the stakes; a few bold bad men throw the dice—(dice loaded with all the hopes, fears, interests, and passions which rage in the breasts of ambitious and desperate men,)—and all the people, from the interests they have depending, become enlisted, excited, agitated, and generally corrupted, by the hazards of the game.

The trial by jury disavows the majority principle altogether; and proceeds upon the ground that every man should be presumed to be entitled to life, liberty, and such property as he has in his possession; and that the government should lay its hand upon none of them, (except for the purpose of bringing them before a tribunal for adjudication,) unless it be first ascertained, beyond a reasonable doubt, in every individual case, that justice requires it.

To ascertain whether there be such reasonable doubt, it takes twelve men by lot from the whole body of mature men. If any of these twelve are proved to be under the influence of any special interest or passion, that may either pervert their judgments, or corrupt their motives, they are set aside as unsuitable for the performance of a duty requiring such absolute impartiality and integrity; and others substituted in their stead. When the utmost practicable impartiality is attained on the part of the whole twelve, they are sworn to the observance of justice; and their unanimous concurrence is then held to be necessary to remove that reasonable doubt, which, unremoved, would forbid the government to lay its hand on its victim.

Such is the caution which the trial by jury both practises Edition: current; Page: [210] and inculcates, against the violation of justice, on the part of the government, towards the humblest individual, in the smallest matter affecting his civil rights, his property, liberty, or life. And such is the contrast, which the trial by jury presents, to that gambler’s and robber’s rule, that the majority have a right, by virtue of their superior numbers, and without regard to justice, to dispose at pleasure of the property and persons of all bodies of men less numerous than themselves.

The difference, in short, between the two systems, is this. The trial by jury protects person and property, inviolate to their possessors, from the hand of the law, unless justice, beyond a reasonable doubt, require them to be taken. The majority principle takes person and property from their possessors, at the mere arbitrary will of a majority, who are liable and likely to be influenced, in taking them, by motives of oppression, avarice, and ambition.

If the relative numbers of opposing parties afforded sufficient evidence of the comparative justice of their claims, the government should carry the principle into its courts of justice; and instead of referring controversies to impartial and disinterested men,—to judges and jurors, sworn to do justice, and bound patiently to hear and weigh all the evidence and arguments that can be offered on either side,—it should simply count the plaintiffs and defendants in each case, (where there were more than one of either,) and then give the case to the majority; after ample opportunity had been given to the plaintiffs and defendants to reason with, flatter, cheat, threaten, and bribe each other, by way of inducing them to change sides. Such a process would be just as rational in courts of justice, as in halls of legislation; for it is of no importance to a man, who has his rights taken from him, whether it be done by a legislative enactment, or a judicial decision.

In legislation, the people are all arranged as plaintiffs and defendants in their own causes; (those who are in favor of a particular law, standing as plaintiffs, and those who are opposed to the same law, standing as defendants); and to allow these causes to be decided by majorities, is plainly as absurd as it would be to allow judicial decisions to be determined by the relative number of plaintiffs and defendants.

If this mode of decision were introduced into courts of justice, we should see a parallel, and only a parallel, to that system of legislation which we witness daily. We should see large bodies of men conspiring to bring perfectly groundless suits, against other bodies of men, for large sums of money, and to carry them by sheer force of numbers; just as we now continually see large bodies of men conspiring to carry, by mere force of numbers, some scheme of legislation that will, directly or indirectly, take money out of other men’s pockets, and put it into their own. And we should also see distinct bodies of men, parties in separate suits, combining and agreeing all to appear and be counted as plaintiffs or defendants in each other’s suits, for the purpose of ekeing out the necessary majority; just as we now see distinct bodies of men, interested in separate schemes of ambition or plunder, conspiring to carry through a batch of legislative enactments, that shall accomplish their several purposes.

This system of combination and conspiracy would go on, until at length whole states and a whole nation would become divided into two great litigating parties, each party composed of several smaller bodies, having their separate suits, but all confederating for the purpose of making up the necessary majority in each case. The individuals composing each of these two great parties, would at length become so accustomed to acting together, and so well acquainted with each others’ schemes, and so mutually dependent upon each others’ fidelity for success, that they would become organized as permanent associations; bound together by that kind of honor that prevails among thieves; and pledged by all their interests, sympathies, and animosities, to mutual fidelity, and to unceasing hostility to their opponents; and exerting all their arts and all their resources of threats, injuries, promises, and bribes, to drive or seduce from the other party enough to enable their own to retain or acquire such a majority as would be necessary to gain their own suits, and defeat the suits of their opponents. All the wealth and talent of the country would become enlisted in the service of these rival associations; and both would at length become so compact, so well organized, so powerful, and yet always so much in need of recruits, Edition: current; Page: [212] that a private person would be nearly or quite unable to obtain justice in the most paltry suit with his neighbor, except on the condition of joining one of these great litigating associations, who would agree to carry through his cause, on condition of his assisting them to carry through all the others, good and bad, which they had already undertaken. If he refused this, they would threaten to make a similar offer to his antagonist, and suffer their whole numbers to be counted against him.

Now this picture is no caricature, but a true and honest likeness. And such a system of administering justice, would be no more false, absurd, or atrocious, than that system of working by majorities, which seeks to accomplish, by legislation, the same ends which, in the case supposed, would be accomplished by judicial decisions.

Again, the doctrine that the minority ought to submit to the will of the majority, proceeds, not upon the principle that government is formed by voluntary association, and for an agreed purpose, on the part of all who contribute to its support, but upon the presumption that all government must be practically a state of war and plunder between opposing parties; and that, in order to save blood, and prevent mutual extermination, the parties come to an agreement that they will count their respective numbers periodically, and the one party shall then be permitted quietly to rule and plunder, (restrained only by their own discretion,) and the other submit quietly to be ruled and plundered, until the time of the next enumeration.

Such an agreement may possibly be wiser than unceasing and deadly conflict; it nevertheless partakes too much of the ludicrous to deserve to be seriously considered as an expedient for the maintenance of civil society. It would certainly seem that mankind might agree upon a cessation of hostilities, upon more rational and equitable terms than that of unconditional submission on the part of the less numerous body. Unconditional submission is usually the last act of one who confesses himself subdued and enslaved. How any one ever came to imagine that condition to be one of freedom, has never been explained. And as for the system being adapted to the maintenance Edition: current; Page: [213] of justice among men, it is a mystery that any human mind could ever have been visited with an insanity wild enough to originate the idea.

If it be said that other corporations, than governments, surrender their affairs into the hands of the majority, the answer is, that they allow majorities to determine only trifling matters, that are in their nature mere questions of discretion, and where there is no natural presumption of justice or right on one side rather than the other. They never surrender to the majority the power to dispose of, or, what is practically the same thing, to determine, the rights of any individual member. The rights of every member are determined by the written compact, to which all the members have voluntarily agreed.

For example. A banking corporation allows a majority to determine such questions of discretion as whether the note of A or of B shall be discounted; whether notes shall be discounted on one, two, or six days in the week; how many hours in a day their banking-house shall be kept open; how many clerks shall be employed; what salaries they shall receive, and such like matters, which are in their nature mere subjects of discretion, and where there are no natural presumptions of justice or right in favor of one course over the other. But no banking corporation allows a majority, or any other number of its members less than the whole, to divert the funds of the corporation to any other purpose than the one to which every member of the corporation has legally agreed that they may be devoted; nor to take the stock of one member and give it to another; nor to distribute the dividends among the stockholders otherwise than to each one the proportion which he has agreed to accept, and all the others have agreed that he shall receive. Nor does any banking corporation allow a majority to impose taxes upon the members for the payment of the corporate expenses, except in such proportions as every member has consented that they may be imposed. All these questions, involving the rights of the members as against each other, are fixed by the articles of the association,—that is, by the agreement to which every member has personally assented.

What is also specially to be noticed, and what constitutes a Edition: current; Page: [214] vital difference between the banking corporation and the political corporation, or government, is, that in case of controversy among the members of the banking corporation, as to the rights of any member, the question is determined, not by any number, either majority, or minority, of the corporation itself, but by persons out of the corporation; by twelve men acting as jurors, or by other tribunals of justice, of which no member of the corporation is allowed to be a part. But in the case of the political corporation, controversies among the parties to it, as to the rights of individual members, must of necessity be settled by members of the corporation itself, because there are no persons out of the corporation to whom the question can be referred.

Since, then, all questions as to the rights of the members of the political corporation, must be determined by members of the corporation itself, the trial by jury says that no man’s rights,—neither his right to his life, his liberty, nor his property,—shall be determined by any such standard as the mere will and pleasure of majorities; but only by the unanimous verdict of a tribunal fairly representing the whole people,—that is, a tribunal of twelve men, taken at random from the whole body, and ascertained to be as impartial as the nature of the case will admit, and sworn to the observance of justice. Such is the difference in the two kinds of corporations; and the custom of managing by majorities the mere discretionary matters of business corporations, (the majority having no power to determine the rights of any member,) furnishes no analogy to the practice, adopted by political corporations, of disposing of all the rights of their members by the arbitrary will of majorities.

But further. The doctrine that the majority have a right to rule, proceeds upon the principle that minorities have no rights in the government; for certainly the minority cannot be said to have any rights in a government, so long as the majority alone determine what their rights shall be. They hold everything, or nothing, as the case may be, at the mere will of the majority.

It is indispensable to a “free government,” (in the political sense of that term,) that the minority, the weaker party, have Edition: current; Page: [215] a veto upon the acts of the majority. Political liberty is liberty for the weaker party in a nation. It is only the weaker party that lose their liberties, when a government becomes oppressive. The stronger party, in all governments, are free by virtue of their superior strength. They never oppress themselves.

Legislation is the work of this stronger party; and if, in addition to the sole power of legislating, they have the sole power of determining what legislation shall be enforced, they have all power in their hands, and the weaker party are the subjects of an absolute government.

Unless the weaker party have a veto, either upon the making, or the enforcement of laws, they have no power whatever in the government, and can of course have no liberties except such as the stronger party, in their arbitrary discretion, see fit to permit them to enjoy.

In England and the United States, the trial by jury is the only institution that gives the weaker party any veto upon the power of the stronger. Consequently it is the only institution, that gives them any effective voice in the government, or any guaranty against oppression.

Suffrage, however free, is of no avail for this purpose; because the suffrage of the minority is overborne by the suffrage of the majority, and is thus rendered powerless for purposes of legislation. The responsibility of officers can be made of no avail, because they are responsible only to the majority. The minority, therefore, are wholly without rights in the government, wholly at the mercy of the majority, unless, through the trial by jury, they have a veto upon such legislation as they think unjust.

Government is established for the protection of the weak against the strong. This is the principal, if not the sole, motive for the establishment of all legitimate government. Laws, that are sufficient for the protection of the weaker party, are of course sufficient for the protection of the stronger party; because the strong can certainly need no more protection than the weak. It is, therefore, right that the weaker party should be represented in the tribunal which is finally to determine what legislation may be enforced; and that no legislation shall Edition: current; Page: [216] be enforced against their consent. They being presumed to be competent judges of what kind of legislation makes for their safety, and what for their injury, it must be presumed that any legislation, which they object to enforcing, tends to their oppression, and not to their security.

There is still another reason why the weaker party, or the minority, should have a veto upon all legislation which they disapprove. That reason is, that that is the only means by which the government can be kept within the limits of the contract, compact, or constitution, by which the whole people agree to establish government. If the majority were allowed to interpret the compact for themselves, and enforce it according to their own interpretation, they would, of course, make it authorize them to do whatever they wish to do.

The theory of free government is that it is formed by the voluntary contract of the people individually with each other. This is the theory, (although it is not, as it ought to be, the fact,) in all the governments in the United States, as also in the government of England. The theory assumes that each man, who is a party to the government, and contributes to its support, has individually and freely consented to it. Otherwise the government would have no right to tax him for its support,—for taxation without consent is robbery. This theory, then, necessarily supposes that this government, which is formed by the free consent of all, has no powers except such as all the parties to it have individually agreed that it shall have; and especially that it has no power to pass any laws, except such as all the parties have agreed that it may pass.

This theory supposes that there may be certain laws that will be beneficial to all,—so beneficial that all consent to be taxed for their maintenance. For the maintenance of these specific laws, in which all are interested, all associate. And they associate for the maintenance of those laws only, in which all are interested. It would be absurd to suppose that all would associate, and consent to be taxed, for purposes which were beneficial only to a part; and especially for purposes that were injurious to any. A government of the whole, therefore, can have no powers except such as all the parties consent that it may have. It can do nothing except what all have consented Edition: current; Page: [217] that it may do. And if any portion of the people,—no matter how large their number, if it be less than the whole,—desire a government for any purposes other than those that are common to all, and desired by all, they must form a separate association for those purposes. They have no right,—by perverting this government of the whole, to the accomplishment of purposes desired only by a part,—to compel any one to contribute to purposes that are either useless or injurious to himself.

Such being the principles on which the government is formed, the question arises, how shall this government, when formed, be kept within the limits of the contract by which it was established? How shall this government, instituted by the whole people, agreed to by the whole people, supported by the contributions of the whole people, be confined to the accomplishment of those purposes alone, which the whole people desire? How shall it be preserved from degenerating into a mere government for the benefit of a part only of those who established, and who support it? How shall it be prevented from even injuring a part of its own members, for the aggrandizement of the rest? Its laws must be, (or at least now are,) passed, and most of its other acts performed, by mere agents,—agents chosen by a part of the people, and not by the whole. How can these agents be restrained from seeking their own interests, and the interests of those who elected them, at the expense of the rights of the remainder of the people, by the passage and enforcement of laws that shall be partial, unequal, and unjust in their operation? That is the great question. And the trial by jury answers it. And how does the trial by jury answer it? It answers it, as has already been shown throughout this volume, by saying that these mere agents and attorneys, who are chosen by a part only of the people, and are liable to be influenced by partial and unequal purposes, shall not have unlimited authority in the enactment and enforcement of laws; that they shall not exercise all the functions of government. It says that they shall never exercise that ultimate power of compelling obedience to the laws by punishing for disobedience, or of executing the laws against the person or property of any man, without first Edition: current; Page: [218] getting the consent of the people, through a tribunal that may fairly be presumed to represent the whole, or substantially the whole, people. It says that if the power to make laws, and the power also to enforce them, were committed to these agents, they would have all power,—would be absolute masters of the people, and could deprive them of their rights at pleasure. It says, therefore, that the people themselves will hold a veto upon the enforcement of any and every law, which these agents may enact, and that whenever the occasion arises for them to give or withhold their consent,—inasmuch as the whole people cannot assemble, or devote the time and attention necessary to the investigation of each case,—twelve of their number shall be taken by lot, or otherwise at random, from the whole body; that they shall not be chosen by majorities, (the same majorities that elected the agents who enacted the laws to be put in issue,) nor by any interested or suspected party; that they shall not be appointed by, or be in any way dependent upon, those who enacted the law; that their opinions, whether for or against the law that is in issue, shall not be inquired of beforehand; and that if these twelve men give their consent to the enforcement of the law, their consent shall stand for the consent of the whole.

This is the mode, which the trial by jury provides, for keeping the government within the limits designed by the whole people, who have associated for its establishment. And it is the only mode, provided either by the English or American constitutions, for the accomplishment of that object.

But it will, perhaps, be said that if the minority can defeat the will of the majority, then the minority rule the majority. But this is not true in any unjust sense. The minority enact no laws of their own. They simply refuse their assent to such laws of the majority as they do not approve. The minority assume no authority over the majority; they simply defend themselves. They do not interfere with the right of the majority to seek their own happiness in their own way, so long as they (the majority) do not interfere with the minority. They claim simply not to be oppressed, and not to be compelled to assist in doing anything which they do not approve. They say to the majority, “We will unite with you, if you Edition: current; Page: [219] desire it, for the accomplishment of all those purposes, in which we have a common interest with you. You can certainly expect us to do nothing more. If you do not choose to associate with us on those terms, there must be two separate associations. You must associate for the accomplishment of your purposes; we for the accomplishment of ours.”

In this case, the minority assume no authority over the majority; they simply refuse to surrender their own liberties into the hands of the majority. They propose a union; but decline submission. The majority are still at liberty to refuse the connection, and to seek their own happiness in their own way, except that they cannot be gratified in their desire to become absolute masters of the minority.

But, it may be asked, how can the minority be trusted to enforce even such legislation as is equal and just? The answer is, that they are as reliable for that purpose as are the majority; they are as much presumed to have associated, and are as likely to have associated, for that object, as are the majority; and they have as much interest in such legislation as have the majority. They have even more interest in it; for, being the weaker party, they must rely on it for their security,—having no other security on which they can rely. Hence their consent to the establishment of government, and to the taxation required for its support, is presumed, (although it ought not to be presumed,) without any express consent being given. This presumption of their consent to be taxed for the maintenance of laws, would be absurd, if they could not themselves be trusted to act in good faith in enforcing those laws. And hence they cannot be presumed to have consented to be taxed for the maintenance of any laws, except such as they are themselves ready to aid in enforcing. It is therefore unjust to tax them, unless they are eligible to seats in a jury, with power to judge of the justice of the laws. Taxing them for the support of the laws, on the assumption that they are in favor of the laws, and at the same time refusing them the right, as jurors, to judge of the justice of the laws, on the assumption that they are opposed to the laws, are flat contradictions.

But, it will be asked, what motive have the majority, when Edition: current; Page: [220] they have all power in their own hands, to submit their will to the veto of the minority?

One answer is, that they have the motive of justice. It would be unjust to compel the minority to contribute, by taxation, to the support of any laws which they did not approve.

Another answer is, that if the stronger party wish to use their power only for purposes of justice, they have no occasion to fear the veto of the weaker party; for the latter have as strong motives for the maintenance of just government, as have the former.

Another answer is, that if the stronger party use their power unjustly, they will hold it by an uncertain tenure, especially in a community where knowledge is diffused; for knowledge will enable the weaker party to make itself in time the stronger party. It also enables the weaker party, even while it remains the weaker party, perpetually to annoy, alarm, and injure their oppressors. Unjust power,—or rather power that is grossly unjust, and that is known to be so by the minority,—can be sustained only at the expense of standing armies, and all the other machinery of force; for the oppressed party are always ready to risk their lives for purposes of vengeance, and the acquisition of their rights, whenever there is any tolerable chance of success. Peace, safety, and quiet for all, can be enjoyed only under laws that obtain the consent of all. Hence tyrants frequently yield to the demands of justice from those weaker than themselves, as a means of buying peace and safety.

Still another answer is, that those who are in the majority on one law, will be in the minority on another. All, therefore, need the benefit of the veto, at some time or other, to protect themselves from injustice.

That the limits, within which legislation would, by this process, be confined, would be exceedingly narrow, in comparison with those it at present occupies, there can be no doubt. All monopolies, all special privileges, all sumptuary laws, all restraints upon any traffic, bargain, or contract, that was naturally lawful,* all restraints upon men’s natural Edition: current; Page: [221] rights, the whole catalogue of mala prohibita, and all taxation to which the taxed parties had not individually, severally, and freely consented, would be at an end; because all such legislation implies a violation of the rights of a greater or less minority. This minority would disregard, trample upon, or resist, the execution of such legislation, and then throw themselves upon a jury of the whole people for justification and protection. In this way all legislation would be nullified, except the legislation of that general nature which impartially protected the rights, and subserved the interests, of all. The only legislation that could be sustained, would probably be such as tended directly to the maintenance of justice and liberty; such, for example, as should contribute to the enforcement of contracts, the protection of property, and the prevention and punishment of acts intrinsically criminal. In short, government in practice would be brought to the necessity of a strict adherence to natural law, and natural justice, instead of being, as it now is, a great battle, in which avarice and ambition are constantly fighting for and obtaining advantages over the natural rights of mankind.

TAXATION.

It was a principle of the Common Law, as it is of the law of nature, and of common sense, that no man can be taxed without his personal consent. The Common Law knew nothing of that system, which now prevails in England, of assuming a man’s own consent to be taxed, because some pretended representative, whom he never authorized to act for him, has taken it upon himself to consent that he may be taxed. That is one of the many frauds on the Common Law, and the English constitution, which have been introduced since Magna Carta. Having finally established itself in England, it has been stupidly and servilely copied and submitted to in the United States.

If the trial by jury were reëstablished, the Common Law principle of taxation would be reëstablished with it; for it is not to be supposed that juries would enforce a tax upon an individual which he had never agreed to pay. Taxation without consent is as plainly robbery, when enforced against one man, as when enforced against millions; and it is not to be imagined that juries could be blind to so self-evident a principle. Taking a man’s money without his consent, is also as much robbery, when it is done by millions of men, acting in concert, and calling themselves a government, as when it is done by a single individual, acting on his own responsibility, and calling himself a highwayman. Neither the numbers engaged in the act, nor the different characters they assume as a cover for the act, alter the nature of the act itself.

If the government can take a man’s money without his consent, there is no limit to the additional tyranny it may practise upon him; for, with his money, it can hire soldiers to stand over him, keep him in subjection, plunder him at discretion, and kill him if he resists. And governments always will do this, as they everywhere and always have done it, except where the Common Law principle has been established. It is therefore a first principle, a very sine qua non of political freedom, that a man can be taxed only by his personal consent. And the establishment of this principle, with trial by jury, insures freedom of course; because: 1. No man would pay his money unless he had first contracted for such a government as he was willing to support; and, 2. Unless the government then kept itself within the terms of its contract, juries would not enforce the payment of the tax. Besides, the agreement to be taxed would probably be entered into but for a year at a time. If, in that year, the government proved itself either inefficient or tyrannical, to any serious degree, the contract would not be renewed. Edition: current; Page: [223] The dissatisfied parties, if sufficiently numerous for a new organization, would form themselves into a separate association for mutual protection. If not sufficiently numerous for that purpose, those who were conscientious would forego all governmental protection, rather than contribute to the support of a government which they deemed unjust.

All legitimate government is a mutual insurance company, voluntarily agreed upon by the parties to it, for the protection of their rights against wrong-doers. In its voluntary character it is precisely similar to an association for mutual protection against fire or shipwreck. Before a man will join an association for these latter purposes, and pay the premium for being insured, he will, if he be a man of sense, look at the articles of the association; see what the company promises to do; what it is likely to do; and what are the rates of insurance. If he be satisfied on all these points, he will become a member, pay his premium for a year, and then hold the company to its contract. If the conduct of the company prove unsatisfactory, he will let his policy expire at the end of the year for which he has paid; will decline to pay any further premiums, and either seek insurance elsewhere, or take his own risk without any insurance. And as men act in the insurance of their ships and dwellings, they would act in the insurance of their properties, liberties and lives, in the political association, or government.

The political insurance company, or government, have no more right, in nature or reason, to assume a man’s consent to be protected by them, and to be taxed for that protection, when he has given no actual consent, than a fire or marine insurance company have to assume a man’s consent to be protected by them, and to pay the premium, when his actual consent has never been given. To take a man’s property without his consent is robbery; and to assume his consent, where no actual consent is given, makes the taking none the less robbery. If it did, the highwayman has the same right to assume a man’s consent to part with his purse, that any other man, or body of men, can have. And his assumption would afford as much moral justification for his robbery as does a like assumption, on the part of the government, for taking a man’s property without his consent. The government’s pretence of protecting him, as an equivalent for the taxation, affords no justification. It is for himself to decide whether he desires such protection as the government offers him. If he do not desire it, or do not bargain for it, the government has no more right than any other insurance company to impose it upon him, or make him pay for it.

Trial by the country, and no taxation without consent, were the two pillars of English liberty, (when England had any liberty,) and the first principles of the Common Law. They mutually sustain each other; and neither can stand without the other. Without both, no people have any guaranty for their freedom; with both, no people can be otherwise than free.*

By what force, fraud, and conspiracy, on the part of kings, nobles, and “a few wealthy freeholders,” these pillars have been prostrated in England, it is designed to show more fully in the next volume, if it should be necessary.

To show that this supposition is not an extravagant one, it may be mentioned that courts have repeatedly questioned jurors to ascertain whether they were prejudiced against the government—that is, whether they were in favor of, or opposed to, such laws of the government as were to be put in issue in the then pending trial. This was done (in 1851) in the United States District Court for the District of Massachusetts, by Peleg Sprague, the United States district judge, in empanelling three several juries for the trials of Scott, Hayden, and Morris, charged with having aided in the rescue of a fugitive slave from the custody of the United States deputy marshal. This judge caused the following question to be propounded to all the jurors separately; and those who answered unfavorably for the purposes of the government, were excluded from the panel.

“Do you hold any opinions upon the subject of the Fugitive Slave Law, so called, which will induce you to refuse to convict a person indicted under it, if the facts set forth in the indictment, and constituting the offence, are proved against him, and the court direct you that the law is constitutional?”

The reason of this question was, that “the Fugitive Slave Law, so called,” was so obnoxious to a large portion of the people, as to render a conviction under it hopeless, if the jurors were taken indiscriminately from among the people.

A similar question was soon afterwards propounded to the persons drawn as jurors in the United States Circuit Court for the District of Massachusetts, by Benjamin R. Curtis, one of the Justices of the Supreme Court of the United States, in empanelling a jury for the trial of the aforesaid Morris on the charge before mentioned; and those who did not answer the question favorably for the government were again excluded from the panel.

It has also been an habitual practice with the Supreme Court of Massachusetts, in empanelling juries for the trial of capital offences, to inquire of the persons drawn as jurors whether they had any conscientious scruples against finding verdicts of guilty in such cases; that is, whether they had any conscientious scruples against sustaining the law prescribing death as the punishment of the crime to be tried; and to exclude from the panel all who answered in the affirmative.

The only principle upon which these questions are asked, is this—that no man shall be allowed to serve as juror, unless he be ready to enforce any enactment of the government, however cruel or tyrannical it may be.

What is such a jury good for, as a protection against the tyranny of the government? A jury like that is palpably nothing but a mere tool of oppression in the hands of the government. A trial by such a jury is really a trial by the government itself—and not a trial by the country—because it is a trial only by men specially selected by the government for their readiness to enforce its own tyrannical measures.

If that be the true principle of the trial by jury, the trial is utterly worthless as a security to liberty. The Czar might, with perfect safety to his authority, introduce the trial by jury into Russia, if he could but be permitted to select his jurors from those who were ready to maintain his laws, without regard to their injustice.

This example is sufficient to show that the very pith of the trial by jury, as a safeguard to liberty, consists in the jurors being taken indiscriminately from the whole people, and in their right to hold invalid all laws which they think unjust.

The executive has a qualified veto upon the passage of laws, in most of our governments, and an absolute veto, in all of them, upon the execution of any laws which he deems unconstitutional; because his oath to support the constitution (as he understands it) forbids him to execute any law that he deems unconstitutional.

And if there be so much as a reasonable doubt of the justice of the laws, the benefit of that doubt must be given to the defendant, and not to the government. So that the government must keep its laws clearly within the limits of justice, if it would ask a jury to enforce them.

Hallam says, “The relation established between a lord and his vassal by the feudal tenure, far from containing principles of any servile and implicit obedience, permitted the compact to be dissolved in case of its violation by either party. This extended as much to the sovereign as to inferior lords. * * If a vassal was aggrieved, and if justice was denied him, he sent a defiance, that is, a renunciation of fealty to the king, and was entitled to enforce redress at the point of his sword. It then became a contest of strength as between two independent potentates, and was terminated by treaty, advantageous or otherwise, according to the fortune of war. * * There remained the original principle, that allegiance depended conditionally upon good treatment, and that an appeal might be lawfully made to arms against an oppressive government. Nor was this, we may be sure, left for extreme necessity, or thought to require a long-enduring forbearance. In modern times, a king, compelled by his subjects’ swords to abandon any protension, would be supposed to have ceased to reign; and the express recognition of such a right as that of insurrection has been justly deemed inconsistent with the majesty of law. But ruder ages had ruder sentiments. Force was necessary to repel force; and men accustomed to see the king’s authority defied by a private riot, were not much shocked when it was resisted in defence of public freedom.”—3 Middle Ages, 240-2.

1 Home, Appendix 2.

Crabbe’s History of the English Law, 236.

Coke says, “The king of England is armed with divers councils, one whereof is called commune concilium, (the common council,) and that is the court of parliament, and so it is legally called in writs and judicial proceedings commune concilium regni Angliæ, (the common council of the kingdom of England.) And another is called magnum concilium, (great council;) this is sometimes applied to the upper house of parliament, and sometimes, out of parliament time, to the peers of the realm, lords of parliament, who are called magnum concilium regis, (the great council of the king;) * * Thirdly, (as every man knoweth,) the king hath a privy council for matters of state. * * The fourth council of the king are his judges for law matters.”

1 Coke’s Institutes, 110 a.

The Great Charter of Henry III., (1216 and 1225,) confirmed by Edward I., (1297,) makes no provision whatever for, or mention of, a parliament, unless the provision, (Ch. 37,) that “Escuage, (a military contribution,) from henceforth shall be taken like as it was wont to be in the time of King Henry our grandfather,” mean that a parliament shall be summoned for that purpose.

The Magna Carta of John, (Ch. 17 and 18,) defines those who were entitled to be summoned to parliament, to wit, “The Archbishops, Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all others who hold of us in chief.” Those who held land of the king in chief included none below the rank of knights.

The parliaments of that time were, doubtless, such as Carlyle describes them, when he says, “The parliament was at first a most simple assemblage, quite cognate to the situation; that Red William, or whoever had taken on him the terrible task of being King of England, was wont to invite, oftenest about Christmas time, his subordinate Kinglets, Barons as he called them, to give him the pleasure of their company for a week or two; there, in earnest conference all morning, in freer talk over Christmas cheer all evening, in some big royal hall of Westminster, Winchester, or wherever it might be, with log fires, huge rounds of roast and boiled, not lacking malmsey and other generous liquor, they took counsel concerning the arduous matters of the kingdom.”

Hume, Appendix 2.

This point will be more fully established hereafter.

It is plain that the king and all his partisans looked upon the charter as utterly prostrating the king’s legislative supremacy before the discretion of juries. When the schedule of liberties demanded by the barons was shown to him, (of which the trial by jury was the most important, because it was the only one that protected all the rest,) “the king, falling into a violent passion, asked, Why the barons did not with these exactions demand his kingdom? * * and with a solemn oath protested, that he would never grant such liberties as would make himself a slave.” * * But afterwards, “seeing himself deserted, and fearing they would seize his castles, he sent the Earl of Pembroke and other faithful messengers to them, to let them know he would grant them the laws and liberties they desired.” * * But after the charter had been granted, “the king’s mercenary soldiers, desiring war more than peace, were by their leaders continually whispering in his ears, that he was now no longer king, but the scorn of other princes; and that it was more eligible to be no king, than such a one as he.” * * He applied “to the Pope, that he might by his apostolic authority make void what the barons had done. * * At Rome he met with what success he could desire, where all the transactions with the barons were fully represented to the Pope, and the Charter of Liberties shown to him, in writing; which, when be had carefully perused, he, with a furious look, cried out, What! Do the barons of England endeavor to dethrone a king, who has taken upon him the Holy Cross, and is under the protection of the Apostolic See; and would they force him to transfer the dominions of the Roman Church to others? By St. Peter, this injury must not pass unpunished. Then debating the matter with the cardinals, he, by a definitive sentence, damned and cassated forever the Charter of Liberties, and sent the king a bull containing that sentence at large.”—Echard’s History of England, p. 106-7.

These things show that the nature and effect of the charter were well understood by the king and his friends; that they all agreed that he was effectually stripped of power. Yet the legislative power had not been taken from him; but only the power to enforce his laws, unless juries should freely consent to their enforcement.

The laws were, at that time, all written in Latin.

“No man shall be condemned at the king’s suit, either before the king in his bench, where pleas are coram rege, (before the king,) (and so are the words nec super eum ibimus, to be understood,) nor before any other commissioner or judge whatsoever, and so are the words nec super eum mittemus, to be understood, but by the judgment of his peers, that is, equals, or according to the law of the land.”—2 Coke’s Inst., 46.

Perhaps the assertion in the text should be made with this qualification—that the words “per legem terræ,” (according to the law of the land,) and the words “per legale judicium parium suorum,” (according to the legal judgment of his peers,) imply that the king, before proceeding to any executive action, will take notice of “the law of the land,” and of the legality of the judgment of the peers, and will execute upon the prisoner nothing except what the law of the land authorizes, and no judgments of the peers, except legal ones. With this qualification, the assertion in the text is strictly correct—that there is nothing in the whole chapter that grants to the king, or his judges, any judicial power at all. The chapter only describes and limits his executive power.

See Blackstone’s Law Tracts, page 294, Oxford Edition.

These Articles of the Charter are given in Blackstone’s collection of Charters, and are also printed with the Statutes of the Realm. Also in Wilkins’ Laws of the Anglo-Saxons, p. 356.

Lingard says, “The words, ‘We will not destroy him, nor will we go upon him, nor will we send upon him,’ have been very differently expounded by different legal authorities. Their real meaning may be learned from John himself, who the next year promised by his letters patent . . . nec super cos per vim vel per arma ibimus, nisi per legem regni nostri, vel per judicium parium suorum in curia nostra, (nor will we go upon them by force or by arms, unless by the law of our kingdom, or the judgment of their peers in our court.) Pat. 16 Johan, apud Drad. 11, app. no. 124. He had hitherto been in the habit of going with an armed force, or sending an armed force on the lands, and against the castles, of all whom he knew or suspected to be his secret enemies, without observing any form of law.”—3 Lingard, 47 note.

“Judgment, judicium. * * The sentence of the law, pronounced by the court, upon the matter contained in the record.”—3 Blackstone, 395. Jacob’s Law Dictionary. Tomlin’s do.

“Judgment is the decision or sentence of the law, given by a court of justice or other competent tribunal, as the result of the proceedings instituted therein, for the redress of an injury.”—Bouvier’s Law Dict.

“Judgment, judicium. * * Sentence of a judge against a criminal. * * Determination, decision in general.”—Bailey’s Dict.

“Judgment. * * In a legal sense, a sentence or decision pronounced by authority of a king, or other power, either by their own mouth, or by that of their judges and officers, whom they appoint to administer justice in their stead.”—Chambers’ Dict.

“Judgment. * * In law, the sentence or doom pronounced in any case, civil or criminal, by the judge or court by which it is tried.”—Webster’s Dict.

Sometimes the punishment itself is called judicium, judgment; or, rather, it was at the time of Magna Carta. For example, in a statute passed fifty-one years after Magna Carta, it was said that a baker, for default in the weight of his bread, “debeat amerciari vel subire judicium pillorie;” that is, ought to be amerced, or suffer the punishment, or judgment, of the pillory. Also that a brewer, for “selling ale contrary to the assize,” “debeat amerciari, vel pati judicium tumbrelli”; that is, ought to be amerced, or suffer the punishment, or judgment, of the tumbrel.—51 Henry 3, St. 6. (1266.)

Also the “Statutes of uncertain date,” (but supposed to be prior to Edward III., or 1326,) provide, in chapters 6, 7, and 10, for “judgment of the pillory.”—See 1 Ruffhead’s Statutes, 187, 188. 1 Statutes of the Realm, 203.

Blackstone, in his chapter “Of Judgment, and its Consequences,” says,

“Judgment (unless any matter be offered in arrest thereof) follows upon conviction; being the pronouncing of that punishment which is expressly ordained by law.”—Blackstone’s Analysis of the Laws of England, Book 4, Ch. 29, Sec. 1. Blackstone’s Law Tracts, 126.

Coke says, “Judicium . . the judgment is the guide and direction of the execution.” 3 Inst. 210.

This precedent from Germany is good authority, because the trial by jury was in use, in the northern nations of Europe generally, long before Magna Carta, and probably from time immemorial; and the Saxons and Normans were familiar with it before they settled in England.

Beneficium was the legal name of an estate held by a feudal tenure. See Spelman’s Glossary.

Contenement of a freeman was the means of living in the condition of a freeman.

Waynage was a villein’s plough-tackle and carts.

Tomlin says, “The ancient practice was, when any such fine was imposed, to inquire by a jury quantum inde regi dare valeat per annum, salva sustentatione sua et uxoris et liberorum suorum, (how much is he able to give to the king per annum, saving his own maintenance, and that of his wife and children). And since the disuse of such inquest, it is never usual to assess a larger fine than a man is able to pay, without touching the implements of his livelihood; but to inflict corporal punishment, or a limited imprisonment, instead of such a fine as might amount to imprisonment for life. And this is the reason why fines in the king’s courts are frequently denominated ransoms, because the penalty must otherwise fall upon a man’s person, unless it be redeemed or ransomed by a pecuniary fine.”—Tomlin’s Law Dict., word Fine.

Because juries were to fix the sentence, it must not be supposed that the king was obliged to carry the sentence into execution; but only that he could not go beyond the sentence. He might pardon, or he might acquit on grounds of law, notwithstanding the sentence; but he could not punish beyond the extent of the sentence. Magna Carta does not prescribe that the king shall punish according to the sentence of the peers; but only that he shall not punish “unless according to” that sentence. He may acquit or pardon, notwithstanding their sentence or judgment; but he cannot punish, except according to their judgment.

The trial by battle was one in which the accused challenged his accuser to single combat, and staked the question of his guilt or innocence on the result of the duel. This trial was introduced into England by the Normans, within one hundred and fifty years before Magna Carta. It was not very often resorted to even by the Normans themselves; probably never by the Anglo-Saxons, unless in their controversies with the Normans. It was strongly discouraged by some of the Norman princes, particularly by Henry II., by whom the trial by jury was especially favored. It is probable that the trial by battle, so far as it prevailed at all in England, was rather tolerated as a matter of chivalry, than authorized as a matter of law. At any rate, it is not likely that it was included in the “legem terræ” of Magna Carta, although such duels have occasionally occurred since that time, and have, by some, been supposed to be lawful. I apprehend that nothing can be properly said to be a part of lex terræ, unless it can be shown either to have been of Saxon origin, or to have been recognized by Magna Carta.

The trial by ordeal was of various kinds. In one ordeal the accused was required to take hot iron in his hand; in another to walk blindfold among red-hot ploughshares; in another to thrust his arm into boiling water; in another to be thrown, with his hands and feet bound, into cold water; in another to swallow the morsel of execration; in the confidence that his guilt or innocence would be miraculously made known. This mode of trial was nearly extinct at the time of Magna Carta, and it is not likely that it was included in “legem terræ,” as that term is used in that instrument. This idea is corroborated by the fact that the trial by ordeal was specially prohibited only four years after Magna Carta, “by act of Parliament in 3 Henry III., according to Sir Edward Coke, or rather by an order of the king in council.”—3 Blackstone 345, note.

I apprehend that this trial was never forced upon accused persons, but was only allowed to them, as an appeal to God, from the judgment of a jury.*

The trial by compurgators was one in which, if the accused could bring twelve of his neighbors, who would make oath that they believed him innocent, he was held to be so. It is probable that this trial was really the trial by jury, or was allowed as an appeal from a jury. It is wholly improbable that two different modes of trial, so nearly resembling each other as this and the trial by jury do, should prevail at the same time, and among a rude people, whose judicial proceedings would naturally be of the simplest kind. But if this trial really were any other than the trial by jury, it must have been nearly or quite extinct at the time of Magna Carta; and there is no probability that it was included in “legem terræ.”

Hallam says, “It appears as if the ordeal were permitted to persons already convicted by the verdict of a jury.”—2 Middle Ages, 446, note.

Coke attempts to show that there is a distinction between amercements and fines—admitting that amercements must be fixed by one’s peers, but claiming that fines may be fixed by the government. (2 Inst. 27, 8 Coke’s Reports 38.) But there seems to have been no ground whatever for supposing that any such distinction existed at the time of Magna Carta. If there were any such distinction in the time of Coke, it had doubtless grown up within the four centuries that had elapsed since Magna Carta, and is to be set down as one of the numberless inventions of government for getting rid of the restraints of Magna Carta, and for taking men out of the protection of their peers, and subjecting them to such punishments as the government chooses to inflict.

The first statute of Westminster, passed sixty years after Magna Carta, treats the fine and amercement as synonymous, as follows:

“Forasmuch as the common fine and amercement of the whole county in Eyre of the justices for false judgments, or for other trespass, is unjustly assessed by sheriffs and baretors in the shires, * * it is provided, and the king wills, that from henceforth such sums shall be assessed before the justices in Eyre, afore their departure, by the oath of knights and other honest men,” &c.—3 Edward I., Ch. 18. (1275.)

And in many other statutes passed after Magna Carta, the terms fine and amercement seem to be used indifferently, in prescribing the punishments for offences. As late as 1461, (246 years after Magna Carta,) the statute 1 Edward IV., Ch. 2, speaks of “fines, ransoms, and amerciaments” as being levied upon criminals, as if they were the common punishments of offences.

St. 2 and 3 Philip and Mary, Ch. 8, uses the terms, “fines, forfeitures, and amerciaments” five times. (1555.)

St. 5 Elizabeth, Ch. 13, Sec. 10, uses the terms “fines, forfeitures, and amerciaments.”

That amercements were fines, or pecuniary punishments, inflicted for offences, is proved by the following statutes, (all supposed to have been passed within one hundred and fifteen years after Magna Carta,) which speak of amercements as a species of “judgment,” or punishment, and as being inflicted for the same offences as other “judgments.”

Thus one statute declares that a baker, for default in the weight of his bread, “ought to be amerced, or suffer the judgment of the pillory;” and that a brewer, for “selling ale contrary to the assize,” “ought to be amerced, or suffer the judgment of the tumbrel.”—51 Henry III., St. 6. (1266.)

Among the “Statutes of Uncertain Date,” but supposed to be prior to Edward III., (1326,) are the following:

Chap. 6 provides that “if a brewer break the assize, (fixing the price of ale,) the first, second, and third time, he shall be amerced; but the fourth time he shall suffer judgment of the pillory without redemption.”

Chap. 7 provides that “a butcher that selleth swine’s flesh measled, or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth the same unto Christians, after he shall be convict thereof, for the first time he shall be grievously amerced; the second time he shall suffer judgment of the pillory; and the third time he shall be imprisoned and make fine; and the fourth time he shall forswear the town.”

Chap. 10, a statute against forestalling, provides that,

“He that is convict thereof, the first time shall be amerced, and shall lose the thing so bought, and that according to the custom of the town; he that is convicted the second time shall have judgment of the pillory; at the third time he shall be imprisoned and make fine; the fourth time he shall abjure the town. And this judgment shall be given upon all manner of forestallers, and likewise upon them that have given them counsel, help, or favor.”—1 Ruffhead’s Statutes, 187, 188. 1 Statutes of the Realm, 203.

1 Hume, Appendix, 1.

Blaokstone says, “Our ancient Saxon laws nominally punished theft with death, if above the value of twelve pence; but the criminal was permitted to redeem his life by a pecuniary ransom, as among their ancestors, the Germans, by a stated number of cattle. But in the ninth year of Henry the First, (1109,) this power of redemption was taken away, and all persons guilty of larceny above the value of twelve pence were directed to be hanged, which law continues in force to this day.”—4 Blackstone, 238.

I give this statement of Blackstone, because the latter clause may seem to militate with the idea, which the former clause corroborates, viz., that at the time of Magna Carta, fines were the usual punishments of offences. But I think there is no probability that a law so unreasonable in itself, (unreasonable even after making all allowance for the difference in the value of money,) and so contrary to immemorial custom, could or did obtain any general or speedy acquiescence among a people who cared little for the authority of kings.

Maddox, writing of the period from William the Conqueror to John, says:

“The amercements in criminal and common pleas, which were wont to be imposed during this first period and afterwards, were of so many several sorts, that it is not easy to place them under distinct heads. Let them, for method’s sake, be reduced to the heads following: Amercements for or by reason of murders and manslaughters, for misdemeanors, for disseisins, for recreancy, for breach of assize, for defaults, for non-appearance, for false judgment, and for not making suit, or hue and cry. To them may be added miscellaneous amercements, for trespasses of divers kinds.”—1 Maddox’ History of the Exchequer, 542.

Coke, in his exposition of the words legem terræ, gives quite in detail the principles of the common law governing arrests; and takes it for granted that the words “nisi per legem terræ” are applicable to arrests, as well as to the indictment, &c.—2 Inst., 51, 52.

I cite the above extract from Mr. Hallam solely 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 terræ authorized “judgments by default or demurrer,” without the intervention of a jury. He seems to imagine that lex terræ, 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, whether 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 terræ 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 a 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, (both 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, both 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 a 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 offence 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 parties, 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 presumes 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 those 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 not 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 a 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 the liberty of parties, counsel, witnesses, and jurors, against all arbitrary power on the part of the court.

Certainly Mr. Hallam may very 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 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 terræ, or the Common Law. Within the meaning of the legem terræ of Magna Carta, nothing but a common law cause of action is a “lawful” one.

Hale says:

“The trial by jury of twelve men was the usual trial among the Normans, in most suits; especially in assizes, et juris utrum.”—1 Hale’s History of the Common Law, 219.

This was in Normandy, before the conquest of England by the Normans. See Ditto, p. 218.

Crabbe says:

“It cannot be denied that the practice of submitting causes to the decision of twelve men was universal among all the northern tribes (of Europe) from the very remotest antiquity.”—Crabbe’s History of the English Law, p. 32.

“The people, who in every general council or assembly could oppose and dethrone their sovereigns, were in little dread of their encroachments on their liberties; and kings, who found sufficient employment in keeping possession of their crowns, would not likely attack the more important privileges of their subjects.”

This office was afterwards committed to sheriffs. But even while the court was held by the lord, “the Lord was not judge, but the Pares (peers) only.”—Gilbert on the Court of Exchequer, 61-2.

The opinion expressed in the text, that the Witan had no legislative authority, is corroborated by the following authorities:

The “second sanction” required to give the legislation of the king and Witan the effect of law, was undoubtedly, I think, as a general thing, the sanction of a jury. I know of no evidence whatever that laws were ever submitted to popular vote in the county courts, as this author seems to suppose possible. Another mode, sometimes resorted to for obtaining the sanction of the people to the laws of the Witan, was, it seems, to persuade the people themselves to swear to observe them. Mackintosh says:

Page 31.

Hallam says, “It was, however, to the county court that an English freeman chiefly looked for the maintenance of his civil rights.”—2 Middle Ages, 392.

Also, “This (the county court) was the great constitutional judicature in all questions of civil right.”—Ditto, 395.

Also, “The liberties of these Anglo-Saxon thanes were chiefly secured, next to their swords and their free spirits, by the inestimable right of deciding civil and criminal suits in their own county courts.”—Ditto, 399.

“Alfred may, in one sense, be called the founder of these laws, (the Saxon,) for until his time they were an unwritten code, but he expressly says, ‘that I, Alfred, collected the good laws of our forefathers into one code, and also I wrote them down’—which is a decisive fact in the history of our laws well worth noting.”—Introduction to Gilbert’s History of the Common Pleas, p. 2, note.

Kelham says, “Let us consult our own lawyers and historians, and they will tell us * * that Alfrod, Edgar, and Edward the Confessor, were the great compilers and restorers of the English Laws.”—Kelham’s Preliminary Discourse to the Laws of William the Conqueror, p. 12. Appendix to Kelham’s Dictionary of the Norman Language.

“He (Alfred) also, like another Theodosius, collected the various customs that he found dispersed in the kingdom, and reduced and digested them into one uniform system, or code of laws, in his som-bec, or liber judicialis (judicial book). This he compiled for the use of the court baron, hundred and county court, the court-leet and sheriff’s tourn, tribunals which he established for the trial of all causes, civil and criminal, in the very districts wherein the complaints arose.”—4 Blackstone, 411.

Alfred himself says, “Hence I, King Alfred, gathered these together, and commanded many of those to be written down which our forefathers observed—those which I liked—and those which I did not like, by the advice of my Witan, I threw aside. For I durst not venture to set down in writing over many of my own, since I knew not what among them would please those that should come after us. But those which I met with either of the days of me, my kinsman, or of Offa, King of Mercia, or of Æthelbert, who was the first of the English who received baptism—those which appeared to me the justest—I have here collected, and abandoned the others. Then I, Alfred, King of the West Saxons, showed these to all my Witan, and they then said that they were all willing to observe them.”—Laws of Alfred, translated by R. Price, prefixed to Mackintosh’s History of England, vol. 1. 45 Lardner’s Cab. Cyc.

“King Edward * * projected and begun what his grandson, King Edward the Confessor, afterwards completed, viz., one uniform digest or body of laws to be observed throughout the whole kingdom, being probably no more than a revival of King Alfred’s code, with some improvements suggested by necessity and experience, particularly the incorporating some of the British, or, rather, Mercian customs, and also such of the Danish (customs) as were reasonable and approved, into the West Saxon Lage, which was still the ground-work of the whole. And this appears to be the best supported and most plausible conjecture, (for certainty is not to be expected,) of the rise and original of that admirable system of maxims and unwritten customs which is now known by the name of the common law, as extending its authority universally over all the realm, and which is doubtless of Saxon parentage.”—4 Blackstone, 412.

“By the Lex Terræ and Lex Regni is understood the laws of Edward the Confessor, confirmed and enlarged as they were by William the Conqueror; and this Constitution or Code of Laws is what even to this day are called ‘The Common Law of the Land.’ ”—Introduction to Gilbert’s History of the Common Pleas, p. 22, note.

Not the conqueror of the English people, (as the friends of liberty maintain,) but only of Harold the usurper.—See Hale’s History of the Common Law, ch. 5.

For all these codes see Wilkins’ Laws of the Anglo-Saxons.

“Being regulations adapted to existing institutions, the Anglo-Saxon statutes are concise and technical, alluding to the law which was then living and in vigor, rather than defining it. The same clauses and chapters are often repeated word for word, in the statutes of subsequent kings, showing that enactments which bear the appearance of novelty are merely declaratory. Consequently the appearance of a law, seemingly for the first time, is by no means to be considered as a proof that the matter which it contains is new; nor can we trace the progress of the Anglo-Saxon institutions with any degree of certainty, by following the dates of the statutes in which we find them first noticed. All arguments founded on the apparent chronology of the subjects included in the laws, are liable to great fallacies. Furthermore, a considerable portion of the Anglo-Saxon law was never recorded in writing. There can be no doubt but that the rules of inheritance were well established and defined; yet we have not a single law, and hardly a single document from which the course of the descent of land can be inferied. * * Positive proof cannot be obtained of the commencement of any institution, because the first written law relating to it may posssibly be merely confirmatory or declaratory; neither can the non-existence of any institution be inferred from the absence of direct evidence. Written laws were modified and controlled by customs of which no trace can be discovered, until after the lapse of centuries, although those usages must have been in constant vigor during the long interval of silence.”—1 Palgrave’s Rise and Progress of the English Commonwealth, 58-9.

Rapin says, “The customs now practised in England are, for the most part, the same as the Anglo-Saxons brought with them from Germany.”—Rapin’s Dissertation on the Government of the Anglo-Saxons, vol. 2, Oct. Ed., p. 138. See Kelborn’s Discourse before named.

Hallam says, “The county of Sussex contains sixty-five (‘hundreds’); that of Dorset forty-three; while Yorkshire has only twenty-six; and Lancashire but six.”—2 Middle Ages, 391.

Excepting also matters pertaining to the collection of the revenue, which were determined in the king’s court of exchequer. But even in this court it was the law “that none be amerced but by his peers.”—Mirror of Justices, 49.

“For the English laws, although not written, may, as it should seem, and that without any absurdity, be termed laws, (since this itself is law—that which pleases the prince has the force of law,) I mean those laws which it is evident were promulgated by the advice of the nobles and the authority of the prince, concerning doubts to be settled in their assembly. For if from the mere want of writing only, they should not be considered laws, then, unquestionably, writing would seem to confer more authority upon laws themselves, than either the equity of the persons constituting, or the reason of those framing them.”—Glanville’s Preface, p. 38. (Glanville was chief justice of Henry II., 1180.) 2 Turner’s History of the Anglo-Saxons, 280.

Mackintosh’s History of England, ch. 3. Lardner’s Cabinet Cyclopædia, 266.

If the laws of the king were received as authoritative by the juries, what occasion was there for his appointing special commissioners for the trial of offences, without the intervention of a jury, as he frequently did, in manifest and acknowledged violation of Magna Carta, and “the law of the land?” These appointments were undoubtedly made for no other reason than that the juries were not sufficiently subservient, but judged according to their own notions of right, instead of the will of the king—whether the latter were expressed in his statutes, or by his judges.

Of course, Mr. Reeve means to be understood that, in the hundred court, and court-leet, the jurors were the judges, as he declares them to have been in the county court; otherwise the “bailiff” or “steward” must have been judge.

The jurors were sometimes called “assessors,” because they assessed, or determined the amount of fines and amercements to be imposed.

“The barons of the Hundred” were the freeholders. Hallam says: “The word baro, originally meaning only a man, was of very large significance, and is not unfrequently applied to common freeholders, as in the phrase court-baron.”—3 Middle Ages, 14-15.

Blackstone says: “The court-baron * * is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes anciently called; for that it is held before the freeholders who owe suit and service to the manor.”—3 Blackstone, 33.

The ancient jury courts kept no records, because those who composed the courts could neither make nor read records. Their decisions were preserved by the memories of the jurors and other persons present.

Stuart says:

“The courts, or civil arrangements, which were modelled in Germany, preserved the independence of the people; and having followed the Saxons into England, and continuing their importance, they supported the envied liberty we boast of. * *

“As a chieftain led out his retainers to the field, and governed them during war; so in peace he summoned them together, and exerted a civil jurisdiction. He was at once their captain and their judge. They constituted his court; and having inquired with him into the guilt of those of their order whom justice had accused, they assisted him to enforce his decrees.

“This court (the court-baron) was imported into England; but the innovation which conquest introduced into the fashion of the times altered somewhat its appearance. * *

“The head or lord of the manor called forth his attendants to his hall. * * He inquired into the breaches of custom, and of justice, which were committed within the precincts of his territory; and with his followers, who sat with him as judges, he determined in all matters of debt, and of trespass to a certain amount. He possessed a similar jurisdiction with the chieftain in Germany, and his tenants enjoyed an equal authority with the German retainers.

“But a mode of administration which intrusted so much power to the great could not long be exercised without blame or injustice. The German, guided by the candor of his mind, and entering into all his engagements with the greatest ardor, perceived not, at first, that the chieftain to whom he submitted his disputes might be swayed, in the judgments he pronounced, by partiality, prejudice, or interest; and that the influence he maintained with his followers was too strong to be restrained by justice. Experience instructed him of his error; he acknowledged the necessity of appealing from his lord; and the court of the Hundred was erected.

“This establishment was formed both in Germany and England, by the inhabitants of a certain division, who extended their jurisdiction over the territory they occupied.* They bound themselves under a penalty to assemble at stated times; and having elected the wisest to preside over them, they judged, not only all civil and criminal matters, but of those also which regarded religion and the priesthood. The judicial power thus invested in the people was extensive; they were able to preserve their rights, and attended this court in arms.

“As the communication, however, and intercourse, of the individuals of a German community began to be wider, and more general, as their dealings enlarged, and as disputes arose among the members of different hundreds, the insufficiency of these courts for the preservation of order was gradually perceived. The shyre mote, therefore, or county court, was instituted; and it formed the chief source of justice both in Germany and England.

“The powers, accordingly, which had been enjoyed by the court of the hundred, were considerably impaired. It decided no longer concerning capital offences; it decided not concerning matters of liberty, and the property of estates, or of slaves; its judgments, in every case, became subject to review; and it lost entirely the decision of causes, when it delayed too long to consider them.

“Every subject of claim or contention was brought, in the first instance, or by appeal, to the county court; and the earl, or eorldorman, who presided there, was active to put the laws in execution. He repressed the disorders which fell out within the circuit of his authority; and the least remission in his duty, or the least fraud he committed, was complained of and punished. He was elected from among the great, and was above the temptation of a bribe; but, to encourage his activity, he was presented with a share of the territory he governed, or was entitled to a proportion of the fines and profits of justice. Every man, in his district, was bound to inform him concerning criminals, and to assist him to bring them to trial; and, as in rude and violent times the poor and helpless were ready to be oppressed by the strong, he was instructed particularly to defend them.

“His court was ambulatory, and assembled only twice a year, unless the distribution of justice required that its meetings should be oftener. Every freeholder in the county was obliged to attend it; and should he refuse this service, his possessions were seized, and he was forced to find surety for his appearance. The neighboring earls held not their courts on the same day; and, what seems very singular, no judge was allowed, after meals, to exercise his office.

“The druids also, or priests, in Germany, as we had formerly occasion to remark, and the clergy in England, exercised a jurisdiction in the hundred and county courts. They instructed the people in religious duties, and in matters regarding the priesthood; and the princes, earls, or eorldormen, related to them the laws and customs of the community. These judges were mutually a check to each other; but it was expected that they should agree in their judgments, and should willingly unite their efforts for the public interest.*

“But the prince or earl performed not, at all times, in person, the obligations of his office. The enjoyment of ease and of pleasure, to which in Germany he had delivered himself over, when disengaged from war, and the mean idea he conceived of the drudgery of civil affairs, made him often delegate to an inferior person the distribution of justice in his district. The same sentiments were experienced by the Saxon nobility; and the service which they owed by their tenures, and the high employments they sustained, called them often from the management of their counties. The progress, too, of commerce, giving an intricacy to cases, and swelling the civil code, added to the difficulty of their office, and made them averse to its duties. Sheriffs, therefore, or deputies, were frequently appointed to transact their business; and though these were at first under some subordination to the earls, they grew at length to be entirely independent of them. The connection of jurisdiction and territory ceasing to prevail, and the civil being separated from the ecclesiastical power, they became the sole and proper officers for the direction of justice in the counties.

“The hundred, however, and county courts, were not equal of themselves for the purposes of jurisdiction and order. It was necessary that a court should be erected, of supreme authority, where the disputes of the great should be decided, where the disagreeing sentiments of judges should be reconciled, and where protection should be given to the people against their fraud and injustice.

“The princes accordingly, or chief nobility, in the German communities, assembled together to judge of such matters. The Saxon nobles continued this prerogative; and the king, or, in his absence, the chief justiciary, watched over their deliberations. But it was not on every trivial occasion that this court interested itself. In smaller concerns, justice was refused during three sessions of the hundred, and claimed without effect, at four courts of the county, before there could lie an appeal to it.

“So gradually were these arrangements established, and so naturally did the varying circumstances in the situation of the Germans and Anglo-Saxons direct those successive improvements which the preservation of order, and the advantage of society, called them to adopt. The admission of the people into the courts of justice preserved, among the former, that equality of ranks for which they were remarkable; and it helped to overturn, among the latter, those envious distinctions which the feudal system tended to introduce, and prevented that venality in judges, and those arbitrary proceedings, which the growing attachment to interest, and the influence of the crown, might otherwise have occasioned.”—Stuart on the Constitution of England, p. 222 to 245.

“In the Anglo-Saxon period, accordingly, twelve only were elected; and these, together with the judge, or presiding officer of the district, being sworn to regard justice, and the voice of reason, or conscience, all causes were submitted to them.”—Ditto, p. 260.

“Before the orders of men were very nicely distinguished, the jurors were elected from the same rank. When, however, a regular subordination of orders was established, and when a knowledge of property had inspired the necessitous with envy, and the rich with contempt, every man was tried by his equals. The same spirit of liberty which gave rise to this regulation attended its progress. Nor could monarchs assume a more arbitrary method of proceeding. ‘I will not’ (said the Earl of Cornwall to his sovereign) ‘render up my castles, nor depart the kingdom, but by judgment of my peers.’ Of this institution, so wisely calculated for the preservation of liberty, all our historians have pronounced the eulogium.”—Ditto, p. 262-3.

Blackstone says:

“The policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man’s door, by constituting as many courts of judicature as there are manors and towns in the kingdom; wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbors and friends. These little courts, however, communicated with others of a larger jurisdiction, and those with others of a still greater power; ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as, by reason of their weight and difficulty, demanded a more solemn discussion. The course of justice flowing in large streams from the king, as the fountain, to his superior courts of record; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy. * * *

“These inferior courts, at least the name and form of them, still continue in our legal constitution; but as the superior courts of record have, in practice, obtained a concurrent original jurisdiction, and as there is, besides, a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (among others) it has happened that these petty tribunals have fallen into decay, and almost into oblivion; whether for the better or the worse may be matter of some speculation, when we consider, on the one hand, the increase of expense and delay, and, on the other, the more able and impartial decisions that follow from this change of jurisdiction.

“The order I shall observe in discoursing on these several courts, constituted for the redress of civil injuries, (for with those of a jurisdiction merely criminal I shall not at present concern myself,*) will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed through the kingdom, is yet (with regard to each particular court) confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power.”—3 Blackstone, 30 to 32.

“The court-baron is a court incident to every manor in the kingdom, to be holden by the steuard within the said manor. This court-baron is of two natures; the one is a customary court, of which we formerly spoke, appertaining entirely to the copy-holders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is a court of the barons, by which name the freeholders were sometimes anciently called; for that it is held by the freeholders who owe suit and service to the manor, the steward being rather the registrar than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering, viz., the freeholders court, was composed of the lord’s tenants, who were the pares (equals) of each other, and were bound by their feudal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespass in the case, or the like, where the debt or damages do not amount to forty shillings; which is the same sum, or three marks, that bounded the jurisdiction of the ancient Gothic courts in their lowest instance, or fierding courts, so called because four were instituted within every superior district or hundred.”—3 Blackstone, 33, 34.

“A hundred court is only a larger court-baron, being held for all the inhabitants of a particular hundred, instead of a manor. The free suitors are here also the judges, and the steward the registrar, as in the case of a court-baron. It is likewise no court of record, resembling the former at all points, except that in point of territory it is of greater jurisdiction. This is said by Sir Edward Coke to have been derived out of the county court for the ease of the people, that they might have justice done to them at their own doors, without any charge or loss of time; but its institution was probably coeval with that of hundreds themselves, which were formerly observed to have been introduced, though not invented, by Alfred, being derived from the polity of the ancient Germans. The centeni, we may remember, were the principal inhabitants of a district composed of different villages, originally in number a hundred, but afterward only called by that name, and who probably gave the same denomination to the district out of which they were chosen. Cæsar speaks positively of the judicial power exercised in their hundred courts and courts-baron. ‘Princeps regiorum atque pagorum’ (which we may fairly construe the lords of hundreds and manors) ‘inter suos jus dicunt, controversias que minuunt.’ (The chiefs of the country and the villages declare the law among them, and abate controversies.) And Tacitus, who had examined their constitution still more attentively, informs us not only of the authority of the lords, but that of the centeni, the hundreders, or jury, who were taken out of the common freeholders, and had themselves a share in the determination. ‘Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt, centeni singulis, ex plebe comites concilium simul et auctoritas adsunt.’ (The princes are chosen in the assemblies, who administer the laws throughout the towns and villages, and with each one are associated an hundred companions, taken from the people, for purposes both of counsel and authority.) This hundred court was denominated hæreda in the Gothic constitution. But this court, as causes are equally liable to removal from hence as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions.”—3 Blackstone, 34, 35.

“The county court is a court incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas of debt, or damages, under the value of forty shillings; over some of which causes these inferior courts have, by the express words of the statute of Gloucester, (6 Edward I., ch. 8,) a jurisdiction totally exclusive of the king’s superior courts. * * The county court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ, called a justicies, which is a writ empowering the sheriff, for the sake of despatch, to do the same justice in his county court as might otherwise be had at Westminster. The freeholders of the county court are the real judges in this court, and the sheriff is the ministerial officer. * * * In modern times, as proceedings are removable from hence into the king’s superior courts, by writ of pone or recordari, in the same manner as from hundred courts and courts-baron, and as the same writ of false judgment may be had in nature of a writ of error, this has occasioned the same disuse of bringing actions therein.”—3 Blackstone, 36, 37.

“Upon the whole, we cannot but admire the wise economy and admirable provision of our ancestors in settling the distribution of justice in a method so well calculated for cheapness, expedition, and case. By the constitution which they established, all trivial debts, and injuries of small consequence, were to be recovered or redressed in every man’s own county, hundred, or perhaps parish.”—3 Blackstone, 59.

“It was the freemen in Germany, and the possessors of land in England, who were suitors (jurors) in the hundred court. These ranks of men were the same. The alteration which had happened in relation to property had invested the German freemen with land or territory.”

It would be wholly erroneous, I think, to infer from this statement of Stuart, that either the “priests, princes, earls, or eorldormen” exercised any authority over the jury in the trial of causes, in the way of dictating the law to them. Henry’s account of this matter doubtless gives a much more accurate representation of the truth. He says that anciently.

“The meeting (the county court) was opened with a discourse by the bishop, explaining, out of the Scriptures and ecclesiastical canons, their several duties as good Christians and members of the church. After this, the alderman, or one of his assessors, made a discourse on the laws of the land, and the duties of good subjects and good citizens. When these preliminaries were over, they proceeded to try and determine, first the causes of the church, next the pleas of the crown, and last of all the controversies of private parties.”—3 Henry’s History of Great Britain, 348.

This view is corroborated by Tyrrell’s Introduction to the History of England, p. 83-84, and by Spence’s Origin of the Laws and Political Institutions of Modern Europe, p. 447, and the note on the same page. Also by a law of Canute to this effect, In every county let there be twice a year an assembly, whereat the bishop and the earl shall be present, the one to instruct the people in divine, the other in human, laws.—Wilkins, p. 136.

There was no distinction between the civil and criminal courts, as to the rights or powers of juries.

1 Blackstone, 63-67.

This quaint and curious book (Smith’s Commonwealth of England) describes the minutiæ of trials, giving in detail the mode of impanelling the jury, and then the conduct of the lawyers, witnesses, and court. I give the following extracts, tending to show that the judges impose no law upon the juries, in either civil or criminal cases, but only require them to determine the causes according to their consciences.

In civil causes he says:

This is the whole account given of the charge to the jury.

In criminal cases, after the witnesses have been heard, and the prisoner has said what he pleases in his defence, the book proceeds:

This is the whole account given of the charge in a criminal case.

The following statement goes to confirm the same idea, that jurors in England have formerly understood it to be their right and duty to judge only according to their consciences, and not to submit to any dictation from the court, either as to law or fact.

The account given of the trial of a peer of the realm corroborates the same point:

“The present form of the jurors’ oath is that they shall ‘give a true verdict according to the evidence.’ At what time this form was introduced is uncertain; but for several centuries after the Conquest, the jurors, both in civil and criminal cases, were sworn merely to speak the truth. (Glanville, lib. 2, cap. 17; Bracton, lib. 3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision was accurately termed veredictum, or verdict, that is, ‘a thing truly said’; whereas the phrase ‘true verdict’ in the modern oath is not an accurate expression.”—Political Dictionary, word Jury.

Of course, there can be no legal trial by jury, in either civil or criminal cases, where the jury are sworn to try the cases “according to law.”

Coke, as late as 1588, admits that amercements must be fixed by the peers (8 Coke’s Rep. 38, 2 Inst. 27); but he attempts, wholly without success, as it seems to me, to show a difference between fines and amercements. The statutes are very numerous, running through the three or four hundred years immediately succeeding Magna Carta, in which fines, ransoms, and amercements are spoken of as if they were the common punishments of offences, and as if they all meant the same thing. If, however, any technical difference could be made out between them, there is clearly none in principle; and the word amercement, as used in Magna Carta, must be taken in its most comprehensive sense.

“Common right” was the common law. 1 Coke’s Inst. 142 a. 2 do. 55, 6.

The oath of the justices is in these words:

“Ye shall swear, that well and lawfully ye shall serve our lord the king and his people, in the office of justice, and that lawfully ye shall counsel the king in his business, and that ye shall not counsel nor assent to anything which may turn him in damage or disherison in any manner, way, or color. And that ye shall not know the damage or disherison of him, whereof ye shall not cause him to be warned by yourself, or by other; and that ye shall do equal law and execution of right to all his subjects, rich and poor, without having regard to any person. And that ye take not by yourself, or by other, privily nor apertly, gift nor reward of gold nor silver, nor of any other thing that may turn to your profit, unless it be meat or drink, and that of small value, of any man that shall have any plea or process hanging before you, as long as the same process shall be so hanging, nor after for the same cause. And that ye take no fee, as long as ye shall be justice, nor robe of any man great or small, but of the king himself. And that ye give none advice or counsel to no man great or small, in no case where the king is party. And in case that any, of what estate or condition they be, come before you in your sessions with force and arms, or otherwise against the peace, or against the form of the statute thereof made, to disturb execution of the common law,” (mark the term, “common law,”) “or to menace the people that they may not pursue the law, that ye shall cause their bodies to be arrested and put in prison; and in case they be such that ye cannot arrest them, that ye certify the king of their names, and of their misprision, hastily, so that he may thereof ordain a convenable remedy. And that ye by yourself, nor by other, privily nor apertly, maintain any plea or quarrel hanging in the king’s court, or elsewhere in the country. And that ye deny no man common right by the king’s letters, nor none other man’s, nor for none other cause; and in case any letters come to you contrary to the law,” (that is, the “common law” before mentioned,) “that ye do nothing by such letters, but certify the king thereof, and proceed to execute the law,” (the “common law” before mentioned,) “notwithstanding the same letters. And that ye shall do and procure the profit of the king and of his crown, with all things where ye may reasonably do the same. And in case ye be from henceforth found in default in any of the points aforesaid, ye shall be at the king’s will of body, lands, and goods, thereof to be done as shall please him, as God you help and all saints.”—18 Edward III., st. 4. (1344.)

That the terms “Law” and “Right,” as used in this statute, mean the common law, is shown by the preamble, which declares the motive of the statute to be that “the Law of the Land, (the common law,) which we (the king) by our oath are bound to maintain,” may be the better kept, &c.

The following is a copy of the original:

“Forma Juramenti Regis Angliœ in Coronacione sua:

(Archiepiscopus Cantuariæ, ad quo de jure et consuetudine Ecclesiæ Cantuariæ, antiqua et approbata, pertinet Reges Angliæ inungere et coronare, die coronacionis Regis, anteque Rex coronetur, faciet Regi Interrogationes subscriptas.)

Si leges et consuetudines ab antiquis justis et Deo devotis Regibus plebi Anglicano concessas, cum sacramenti confirmacione eidem plebi concedere et servare (volueris:) Et præsertim leges et consuetudines et libertates a glorioso Rege Edwardo clero populoque concessas?

(Et respondeat Rex,) Concedo et servare volo, et sacramento confirmare.

Servabis Ecclesiæ Dei, Cleroque, et Populo, pacem ex integro et concordiam in Deo secundum vires tuas?

(Et respondeat Rex,) Servabo.

Facies fleri in omnibus Judiciis tuis equam et rectam justiciam, et discrecionem, in misericordia et veritate, secundum vires tuas?

(Et respondeat Rex,) Faciam.

Concedis justas, leges et consuetudines esse tenendas, et promittis per te eas esse protegendas, et ad honorem Dei corroborandas, quas vulgus elegit, secundum vires tuas?

(Et respondeat Rex,) Concedo et promitto.”

It would appear, from the text, that the Charter of Liberties and the Charter of the Forest were sometimes called “laws of the land.”

As the ancient coronation oath, given in the text, has come down from the Saxon times, the following remarks of Palgrave will be pertinent, in connection with the oath, as illustrating the fact that, in those times, no special authority attached to the laws of the king:

Marches, the limits, or boundaries, between England and Wales.

That the kings would have had no scruples to enact laws for the special purpose of plundering the people, by means of the judgments of juries, if they could have got juries to acknowledge the authority of their laws, is evident from the audacity with which they plundered them, without any judgments of juries to authorize them.

It is not necessary to occupy space here to give details as to these robberies; but only some evidence of the general fact.

In Hume’s account of the extortions of those times, the following paragraph occurs:

Further accounts of the extortions and oppressions of the kings may be found in Hume’s History, Appendix 2, and in Hallam’s Middle Ages, vol. 2, p. 435 to 446.

By Magna Carta John bound himself to make restitution for some of the spoliations he had committed upon individuals “without the legal judgment of their peers.”—See Magna Carta of John, ch. 60, 61, 65 and 66.

One of the great charges, on account of which the nation rose against John, was, that he plundered individuals of their property, “without legal judgment of their peers.” Now it was evidently very weak and short-sighted in John to expose himself to such charges, if his laws were really obligatory upon the peers; because in that case, he could have enacted any laws that were necessary for his purpose, and then, by civil suits, have brought the cases before juries for their “judgment,” and thus have accomplished all his robberies in a perfectly legal manner.

There would evidently have been no sense in these complaints, that he deprived men of their property “without legal judgment of their peers,” if his laws had been binding upon the peers; because he could then have made the same spoliations as well with the judgment of the peers as without it. Taking the judgment of the peers in the matter, would have been only a ridiculous and useless formality, if they were to exercise no discretion or conscience of their own, independently of the laws of the king.

It may here be mentioned, in passing, that the same would be true in criminal matters, if the king’s laws were obligatory upon juries.

As an illustration of what tyranny the kings would sometimes practise, Hume says:

The provision, also, in the 64th chapter of Magna Carta, that “all unjust and illegal fines, and all amercements, imposed unjustly, and contrary to the Law of the Land, shall be entirely forgiven,” &c.; and the provision, in chapter 61, that the king “will cause full justice to be administered” in regard to “all those things, of which any person has, without legal judgment of his peers, been dispossessed or deprived, either by King Henry, our father, or our brother, King Richard,” indicate the tyrannical practices that prevailed.

Now all these things were very unnecessary and foolish, if his laws were binding upon juries; because, in that case, he could have procured the conviction of these men in a legal manner, and thus have saved the necessity of such usurpation. In short, if the laws of the king had been binding upon juries, there is no robbery, vengeance, or oppression, which he could not have accomplished through the judgments of juries. This consideration is sufficient, of itself, to prove that the laws of the king were of no authority over a jury, in either civil or criminal cases, unless the juries regarded the laws as just in themselves.

By the Magna Carta of Henry III. this is changed to once a year.

From the provision of Magna Carta, cited in the text, it must be inferred that there can be no legal trial by jury, in civil cases, if only the king’s justices preside; that, to make the trial legal, there must be other persons, chosen by the people, to sit with them; the object being to prevent the jury’s being deceived by the justices. I think we must also infer that the king’s justices could sit only in the three actions specially mentioned. We cannot go beyond the letter of Magna Carta, in making innovations upon the common law, which required all presiding officers in jury trials to be elected by the people.

“The earls, sheriffs, and head-boroughs were annually elected in the full folcmote, (people’s meeting).”—Introduction to Gilbert’s History of the Common Pleas, p. 2, note.

“It was the especial province of the earldomen or earl to attend the shyre-meeting, (the county court,) twice a year, and there officiate as the county judge in expounding the secular laws, as appears by the fifth of Edgar’s laws.”—Same, p. 2, note.

“Every ward had its proper alderman, who was chosen, and not imposed by the prince.”—Same, p. 4, text.

“As the aldermen, or earls, were always chosen” (by the people) “from among the greatest thanes, who in those times were generally more addicted to arms than to letters, they were but ill-qualified for the administration of justice, and performing the civil duties of their office.”—3 Henry’s History of Great Britain, 343.

“But none of these thanes were annually elected in the full folcmote, (people’s meeting,) as the earls, sheriffs, and head-boroughs were; nor did King Alfred (as this author suggests) deprive the people of the election of those last mentioned magistrates and nobles, much less did he appoint them himself.”—Introd. to Gilbert’s Hist. Com. Pleas, p. 2, note.

“The sheriff was usually not appointed by the lord, but elected by the freeholders of the district.”—Political Dictionary, word Sheriff.

“Among the most remarkable of the Saxon laws we may reckon * * the election of their magistrates by the people, originally even that of their kings, till dear-bought experience evinced the convenience and necessity of establishing an hereditary succession to the crown. But that (the election) of all subordinate magistrates, their military officers or heretochs, their sheriffs, their conservators of the peace, their coroners, their portreeves, (since changed into mayors and bailiffs,) and even their tithing-men and borsholders at the last, continued, some, till the Norman conquest, others for two centuries after, and some remain to this day.”—4 Blackstone, 413.

“The election of sheriffs was left to the people, according to ancient usage.”—St. West. I, c. 27.—Crabbe’s History of English Law, 181.

Judges do not even live up to that part of their own maxim, which requires jurors to try the matter of fact. By dictating to them the laws of evidence,—that is, by dictating what evidence they may hear, and what they may not hear, and also by dictating to them rules for weighing such evidence as they permit them to hear,—they of necessity dictate the conclusion to which they shall arrive. And thus the court really tries the question of fact, as well as the question of law, in every cause. It is clearly impossible, in the nature of things, for a jury to try a question of fact, without trying every question of law on which the fact depends.

Most disagreements of juries are on matters of fact, which are admitted to be within their province. We have little or no evidence of their disagreements on matters of natural justice. The disagreements of courts on matters of law, afford little or no evidence that juries would also disagree on matters of law—that is, of justice; because the disagreements of courts are generally on matters of legislation, and not on those principles of abstract justice, by which juries would be governed, and in regard to which the minds of men are nearly unanimous.

This is the principle of all voluntary associations whatsoever. No voluntary association was ever formed, and in the nature of things there never can be one formed, for the accomplishment of any objects except those in which all the parties to the association are agreed. Government, therefore, must be kept within these limits, or it is no longer a voluntary association of all who contribute to its support, but a mere tyranny established by a part over the rest.

All, or nearly all, voluntary associations give to a majority, or to some other portion of the members less than the whole, the right to use some limited discretion as to the means to be used to accomplish the ends in view; but the ends themselves to be accomplished are always precisely defined, and are such as every member necessarily agrees to, else he would not voluntarily join the association.

Justice is the object of government, and those who support the government, must be agreed as to the justice to be executed by it, or they cannot rightfully unite in maintaining the government itself.

Jones on Bailments, 133.

Kent, describing the difficulty of construing the written law, says:

“Such is the imperfection of language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms, as to secure it from ambiguous expressions, and from all doubts and criticisms upon its meaning.”—Kent, 460.

The following extract from a speech of Lord Brougham, in the House of Lords, confesses the same difficulty:

“There was another subject, well worthy of the consideration of government during the recess,—the expediency, or rather the absolute necessity, of some arrangement for the preparation of bills, not merely private, but public bills, in order that legislation might be consistent and systematic, and that the courts might not have so large a portion of their time occupied in endeavoring to construe acts of Parliament, in many cases unconstruable, and in most cases difficult to be construed.”—Law Reporter, 1848, p. 525.

This condemnation of written laws must, of course, be understood as applying only to cases where principles and rights are involved, and not as condemning any governmental arrangements, or instrumentalities, that are consistent with natural right, and which must be agreed upon for the purpose of carrying natural law into effect. These things may be valied, as expediency may dictate, so only that they be allowed to infringe no principle of justice. And they must, of course, be written, because they do not exist as fixed principles, or laws in nature.

On the English Constitution.

Although all the freemen are legally eligible as jurors, any one may nevertheless be challenged and set aside, at the trial, for any special personal disqualification; such as mental or physical inability to perform the duties; having been convicted, or being under charge, of crime; interest, bias, &c. But it is clear that the common law allows none of these points to be determined by the court, but only by “triers.”

What was the precise meaning of the Saxon word, which I have here called elderly, I do not know. In the Latin translations it is rendered by seniores, which may perhaps mean simply those who have attained their majority.

In 1483 it was enacted, by a statute entitled “Of what credit and estate those jurors must be which shall be impanelled in the Sheriff’s Turn.”

A statute passed in 1494, in regard to jurors in the city of London, enacts:

The statute 4 Henry VIII., ch. 3, sec. 4, (1512) requires jurors in London to have “goods to the value of one hundred marks.”

This statute was continued in force by 19 Henry VII., ch. 16. (1503.)

By a statute passed in 1692, jurors in England are to have landed estates of the value of ten pounds a year; and jurors in Wales to have similar estates of the realm of six pounds a year,—4 and 5 William and Mary, ch. 24, sec. 14. (1692.)

By the same statute, (sec. 18,) persons may be returned to serve upon the tales in any county of England, who shall have, within the same county, five pounds by the year, above reprises, in the manner aforesaid.

By St. 3 George II., ch. 25, sec. 19, 20, no one is to be a juror in London, who shall not be “an householder within the said city, and have lands, tenements, or personal estate, to the value of one hundred pounds.”

By another statute, applicable only to the county of Middlesex, it is enacted.

A mark was thirteen shillings and four pence.

Suppose these statutes, instead of disfranchising all whose freeholds were of less than the standard value fixed by the statutes, had disfranchised all whose freeholds were of greater value than the same standard—would anybody ever have doubted that such legislation was inconsistent with the English constitution; or that it amounted to an entire abolition of the trial by jury? Certainly not. Yet it was as clearly inconsistent with the common law, or the English constitution, to disfranchise those whose freeholds fell below any arbitrary standard fixed by the government, as it would have been to disfranchise all whose freeholds rose above that standard.

Lingard says: “These compurgators or jurors * * were sometimes * * drawn by lot.”—1 Lingard’s History of England, p. 300.

Chapter 4, p. 120, note.

The proofs of this principle of the common law have already been given on page 120, note.

There is much confusion and contradiction among authors as to the manner in which sheriffs and other officers were appointed; some maintaining that they were appointed by the king, others that they were elected by the people. I imagine that both these opinions are correct, and that several of the king’s officers bore the same official names as those chosen by the people; and that this is the cause of the confusion that has arisen on the subject.

It seems to be a perfectly well established fact that, at common law, several magistrates, bearing the names of aldermen, sheriffs, stewards, coroners and bailiffs, were chosen by the people; and yet it appears, from Magna Carta itself, that some of the king’s officers (of whom he must have had many) were also called “sheriffs, constables, coroners, and bailiffs.”

But Magna Carta, in various instances, speaks of sheriffs and bailiffs as “our sheriffs and bailiffs;” thus apparently intending to recognize the distinction between officers of the king, bearing those names, and other officers, bearing the same official names, but chosen by the people. Thus it says that “no sheriff or bailiff of ours, or any other (officer), shall take horses or carts of any freeman for carriage, unless with the consent of the freeman himself.”—John’s Charter, ch. 36.

In a kingdom subdivided into so many counties, hundreds, tithings, manors, cities and boroughs, each having a judicial or police organization of its own, it is evident that many of the officers must have been chosen by the people, else the government could not have maintained its popular character. On the other hand, it is evident that the king, the executive power of the nation, must have had large numbers of officers of his own in every part of the kingdom. And it is perfectly natural that these different sets of officers should, in many instances, bear the same official names; and, consequently that the king, when speaking of his own officers, as distinguished from those chosen by the people, should call them “our sheriffs, bailiffs,” &c., as he does in Magna Carta.

I apprehend that inattention to these considerations has been the cause of all the confusion of ideas that has arisen on this subject,—a confusion very evident in the following paragraph from Dunham, which may be given as an illustration of that which is exhibited by others on the same points.

The confusion of duties attributed to these officers indicates clearly enough that different officers, bearing the same official names, must have had different duties, and have derived their authority from different sources,—to wit, the king, and the people.

Darrein presentment was an inquest to discover who presented the last person to a church; mort de ancestor, whether the last possessor was seized of land in demesne of his own fee; and novel disseisin, whether the claimant had been unjustly disseized of his freehold.

He has no power to do it, either with, or without, the king’s command. The prohibition is absolute, containing no such qualification as is here interpolated, viz., “without the king’s command.” If it could be done with the king’s command, the king would be invested with arbitrary power in the matter.

The absurdity of this doctrine of Coke is made more apparent by the fact that, at that time, the “justices” and other persons appointed by the king to hold courts were not only dependent upon the king for their offices, and removable at his pleasure, but that the usual custom was, not to appoint them with any view to permanency, but only to give them special commissiors for trying a single cause, or for holding a single term of a court, or for making a single circuit; which, being done, their commissions expired. The king, therefore, could, and undoubtedly did, appoint any individual he pleased, to try any cause he pleased, with a special view to the verdicts he desired to obtain in the particular cases.

This custom of commissioning particular persons to hold jury trials, in criminal cases, (and probably also in civil ones,) was of course a usurpation upon the common law, but had been practised more or less from the time of William the Conqueror. Palgrave says:

The following statute, passed in 1354, (139 years after Magna Carta,) shows that even after this usurpation of appointing “justices” of his own, to try criminal cases, had probably become somewhat established in practice, in defiance of Magna Carta, the king was in the habit of granting special commissions to still other persons, (especially to sheriffs,—his sheriffs, no doubt,) to try particular cases:

How silly to suppose that the illegality of these commissions to try criminal cases, could have been avoided by simply granting them to persons under the title of “justices,” instead of granting them to “sheriffs.” The statute was evidently a cheat, or at least designed as such, inasmuch as it virtually asserts the right of the king to appoint his tools, under the name of “justices,” to try criminal cases, while it disavows his right to appoint them under the name of “sheriffs.”

The following extract from Gilbert shows to what lengths of usurpation the kings would sometimes go, in their attempts to get the judicial power out of the hands of the people, and entrust it to instruments of their own choosing:

The several authorities now given show that it was the custom of the Norman kings, not only to appoint persons to sit as judges in jury trials, in criminal cases, but that they also commissioned individuals to sit in singular and particular cases, as occasion required; and that they therefore readily could, and naturally would, and therefore undoubtedly did, commission individuals with a special view to their adaptation or capacity to procure such judgments as the kings desired.

The extract from Gilbert suggests also the usurpation of the Norman kings, in their assumption that they, (and not the people, as by the common law,) were the fountains of justice. It was only by virtue of this illegal assumption that they could claim to appoint their tools to hold courts.

All these things show how perfectly lawless and arbitrary the kings were, both before and after Magna Carta, and how necessary to liberty was the principle of Magna Carta and the common law, that no person appointed by the king should hold jury trials in criminal cases.

In this extract, Palgrave seems to assume that the king himself had a right to sit as judge, in jury trials, in the county courts, In both civil and criminal cases. I apprehend he had no such power at the common law, but only to sit in the trial of appeals, and in the trial of peers, and of civil suits in which peers were parties, and possibly in the courts of ancient demesne.

The opinions and decisions of judges and courts are undeserving of the least reliance, (beyond the intrinsic merit of the arguments offered to sustain them,) and are unworthy even to be quoted as evidence of the law, when those opinions or decisions are favorable to the power of the government, or unfavorable to the liberties of the people. The only reasons that their opinions, when in favor of liberty, are entitled to any confidence, are, first, that all presumptions of law are in favor of liberty; and, second, that the admissions of all men, the innocent and the criminal alike, when made against their own interests, are entitled to be received as true, because it is contrary to human nature for a man to confess anything but truth against himself.

More solemn farces, or more gross impostures, were never practised upon mankind, than are all, or very nearly all, those oracular responses by which courts assume to determine that certain statutes, in restraint of individual liberty, are within the constitutional power of the government, and are therefore valid and binding upon the people.

The reason why these courts are so intensely servile and corrupt, is, that they are not only parts of, but the veriest creatures of, the very governments whose oppressions they are thus seeking to uphold. They receive their offices and salaries from, and are impeachable and removable by, the very governments upon whose acts they affect to sit in judgment. Of course, no one with his eyes open ever places himself in a position so incompatible with the liberty of declaring his honest opinion, unless he do it with the intention of becoming a mere instrument in the hands of the government for the execution of all its oppressions.

As proof of this, look at the judicial history of England for the last five hundred years, and of America from its settlement. In all that time (so far as I know, or presume) no bench of judges, (probably not even any single judge,) dependent upon the legislature that passed the statute, has ever declared a single penal statute invalid, on account of its being in conflict either with the common law, which the judges in England have been sworn to preserve, or with the written constitutions, (recognizing men’s natural rights,) which the American judges were under oath to maintain. Every oppression, every atrocity even, that has ever been enacted in either country, by the legislative power, in the shape of a criminal law, (or, indeed, in almost any other shape,) has been as sure of a sanction from the judiciary that was dependent upon, and impeachable by, the legislature that enacted the law, as if there were a physical necessity that the legislative enactment and the judicial sanction should go together. Practically speaking, the sum of their decisions, all and singular, has been, that there are no limits to the power of the government, and that the people have no rights except what the government pleases to allow to them.

It is extreme folly for a people to allow such dependent, servile, and perjured creatures to sit either in civil or criminal trials; but to allow them to sit in criminal trials, and judge of the people’s liberties, is not merely fatuity,—it is suicide.

Coke, speaking of the word bailiffs, as used in the statute of 1 Westminster, ch. 35, (1275,) says:

Coke also says, “It is a maxim in law, aliquis non debet esse judex in propria causa, (no one ought to be judge in his own cause;) and therefore a fine levied before the baylifes of Salop was reversed, because one of the baylifes was party to the fine, quia non potest esse judex et pars,” (because one cannot be judge and party.)—1 Inst., 141 a.

In the statute of Gloucester, ch. 11 and 12, (1278,) “the mayor and bailiffs of London (undoubtedly chosen by the people, or at any rate not appointed by the king) are manifestly spoken of as judges, or magistrates, holding jury trials, as follows:

The 12th chapter of the same statute is in the following words, which plainly recognize the fact that “the mayor and bailiffs of London” are judicial officers holding courts in London.

Coke, in his commentary on this chapter, also speaks repeatedly of “the mayor and bailiffs” as judges holding courts; and also speaks of this chapter as applicable not only to “the citie of London, specially named for the cause aforesaid, but extended by equity to all other privileged places,” (that is, privileged to have a court of “mayor and bailiffs,”) “where foreign voucher is made, as to Chester, Durham, Salop,” &c.—2 Inst., 325-7.

Bailie.—In Scotch law, a municipal magistrate, corresponding with the English alderman.*—Burrill’s Law Dictionary.

Bailiffe.—Baillif. Fr. A bailiff: a ministerial officer with duties similar to those of a sheriff. . . The judge of a court. A municipal magistrate, &c.—Burrill’s Law Dict.

Bailiff. . . The word bailiff is of Norman origin, and was applied in England, at an early period, (after the example, it is said, of the French,) to the chief magistrates of counties, or shires, such as the alderman, the reeve, or sheriff, and also of inferior jurisdictions, such as hundreds and wapentakes.—Spelman, voc. Balivus; 1 Bl. Com., 344. See Bailli, Ballivus. The Latin ballivus occurs, indeed, in the laws of Edward the Confessor, but Spelman thinks it was introduced by a later hand. Balliva (bailiwick) was the word formed from ballivus, to denote the extent of territory comprised within a bailiff’s jurisdiction; and bailiwick is still retained in writs and other proceedings, as the name of a sheriff’s county.—1 Bl. Com., 344. See Balliva. The office of bailiff was at first strictly, though not exclusively, a judicial one. In France, the word had the sense of what Spelman calls justitia tutelaris. Ballivus occurs frequently in the Regiam Majestatem, in the sense of a judge.—Spelman. In its sense of a deputy, it was formerly applied, in England, to those officers who, by virtue of a deputation, either from the sheriff or the lords of private jurisdictions, exercised within the hundred, or whatever might be the limits of their bailiwick, certain judicial and ministerial functions. With the disuse of private and local jurisdictions, the meaning of the term became commonly restricted to such persons as were deputed by the sheriff to assist him in the merely ministerial portion of his duty; such as the summoning of juries, and the execution of writs.—Brande. . . The word bailiff is also applied in England to the chief magistrates of certain towns and jurisdictions, to the keepers of castles, forests and other places, and to the stewards or agents of lords of manors.—Burrill’s Law Dict.

“Bailiff, (from the Lat. ballivus; Fr. baillif, i. e., Præfectus provinciæ,) signifies an officer appointed for the administration of justice within a certain district. The office, as well as the name, appears to have been derived from the French,” &c.—Brewster’s Encyclopedia.

Millar says, “The French monarchs, about this period, were not content with the power of receiving appeals from the several courts of their barons. An expedient was devised of sending royal bailiffs into different parts of the kingdom, with a commission to take cognizance of all those causes in which the sovereign was interested, and in reality for the purpose of abridging and limiting the subordinate jurisdiction of the neighboring feudal superiors. By an edict of Phillip Augustus, in the year 1190, those bailiffs were appointed in all the principal towns of the kingdom.”—Millar’s Hist. View of the Eng. Gov., vol. ii., ch. 3, p. 120.

“Bailiff-office.—Magistrates who formerly administered justice in the parliaments or courts of France, answering to the English sheriffs, as mentioned by Braeton.”—Bouvier’s Law Dict.

“There be several officers called bailiffs, whose offices and employments seem quite different from each other. . . The chief magistrate, in divers ancient corporations, are called bailiffs, as in Ipswich, Yarmouth, Colchester, &c. There are, likewise, officers of the forest, who are termed bailiffs.”—1 Bacon’s Abridgment, 498-9.

“Bailiff signifies a keeper or superintendent, and is directly derived from the French word bailli, which appears to come from the word balivus, and that from bagalus, a Latin word signifying generally a governor, tutor, or superintendent. . . The French word balli is thus explained by Richelet, (Dictionaire, &c.:) Bailli.—He who in a province has the superintendence of justice, who is the ordinary judge of the nobles, who is their head for the ban and arriere ban,* and who maintains the right and property of others against those who attack them. . . All the various officers who are called by this name, though differing as to the nature of their employments, seem to have some kind of superintendence intrusted to them by their superior.”—Political Dictionary.

“Bailiff, balivus. From the French word bayliff, that is, præfectus provinciæ, and as the name, so the office itself was answerable to that of France, where there were eight parliaments, which were high courts from whence there lay no appeal, and within the precincts of the several parts of that kingdom which belonged to each parliament, there were several provinces to which justice was administered by certain officers called bailiffs; and in England we have several counties in which justice hath been, and still is, in small suits, administered to the inhabitants by the officer whom we now call sheriff, or viscount; (one of which names descends from the Saxons, the other from the Normans.) And, though the sheriff is not called bailiff, yet it was probable that was one of his names also, because the county is often called balliva; as in the return of a writ, where the person is not arrested, the sheriff saith, infra-nominatus, A. B. non est inventus in balliva men, &c.; (the within named A. B. is not found in my bailiwick, &c.) And in the statute of Magna Carta, ch. 28, and 14 Ed. 3, ch. 9, the word baliff seems to comprise as well sheriffs, as bailiffs of hundreds.

“Bailies, in Scotland, are magistrates of burghs, possessed of certain jurisdictions, having the same power within their territory as sheriffs in the county. . .

“As England is divided into counties, so every county is divided into hundreds; within which, in ancient times, the people had justice administered to them by the several officers of every hundred, which were the bailiffs. And it appears by Bracton, (lib. 3, tract. 2, ch. 34,) that bailiffs of hundreds might anciently hold plea of appeal and approvers; but since that time the hundred courts, except certain franchises, are swallowed in the county courts; and now the bailiff’s name and office is grown into contempt, they being generally officers to serve writs, &c., within their liberties; though, in other respects, the name is still in good esteem, for the chief magistrates in divers towns are called bailiffs; and sometimes the persons to whom the king’s castles are committed are termed bailiffs, as the bailiff of Dover Castle, &c.

“Of the ordinary bailiffs there are several sorts, viz., bailiffs of liberties; sheriffs’ bailiffs; bailiffs of lords of manors; bailiffs of husbandry, &c. . .

“Bailiffs of liberties or franchises are to be sworn to take distresses, truly impanel jurors, make returns by indenture between them and sheriffs, &c. . .

“Bailiffs of courts baron summon those courts, and execute the process thereof. . .

“Besides these, there are also bailiffs of the forest. . . ” —Jacob’s Law Dict. Tomlin’s do.

“Bailiwick, balliva,—is not only taken for the county, but signifies generally that liberty which is exempted from the sheriff of the county, over which the lord of the liberty appointeth a bailiff, with such powers within his precinct as an under-sheriff exerciseth under the sheriff of the county; such as the bailiff of Westminster.”—Jacob’s Law Dict. Tomlin’s do.

“A bailiff of a Leet, Court-baron, Manor, Bolivus Letæ, Baronis, Manerii.—He is one that is appointed by the lord, or his steward, within every manor, to do such offices as appertain thereunto, as to summon the court, warn the tenants and resiants; also, to summon the Leet and Homage, levy fines, and make distresses, &c., of which you may read at large in Kitchen’s Court-leet and Court-baron.”—A Law Dictionary, anonymous, (in Suffolk Law Library.)

Bailiff.—In England an officer appointed by the sheriff. Bailiffs are either special, and appointed, for their adroitness, to arrest persons; or bailiffs of hundreds, who collect fines, summon juries, attend the assizes, and execute writs and processes. The sheriff in England is the king’s bailiff. . .

“The office of bailiff formerly was high and honorable in England, and officers under that title on the continent are still invested with important functions.”—Webster.

“Bailli, (Scotland.)—An alderman; a magistrate who is second in rank in a royal burgh.”—Worcester.

“Baili, or Bailiff.—(Sorte d’officier de justice.) A bailiff; a sort of magistrate.”—Boyer’s French Dict.

“By some opinions, a bailiff, in Magna Carta, ch. 28, signifies any judge.”—Cunningham’s Law Dict.

“Bailiff.—In the court of the Greek emperors there was a grand bajulos, first tutor of the emperor’s children. The superintendent of foreign merchants seems also to have been called bajulos; and, as he was appointed by the Venetians, this title (balio) was transferred to the Venetian ambassador. From Greece, the official bajulos (ballivus, bailli, in France; bailiff, in England,) was introduced into the south of Europe, and denoted a superintendent; hence the eight ballivi of the knights of St. John, which constitute its supreme council. In France, the royal bailiffs were commanders of the militia, administrators or stewards of the domains, and judges of their districts. In the course of time, only the first duty remained to the bailiff; hence he was bailli d’épée, and laws were administered in his name by a lawyer, as his deputy, lieutenant de robe. The seigniories, with which high courts were connected, employed bailiffs, who thus constituted, almost everywhere, the lowest order of judges. From the courts of the nobility, the appellation passed to the royal courts; from thence to the parliaments. In the greater bailiwicks of cities of importance, Henry II. established a collegial constitution under the name of presidial courts. . . The name of bailiff was introduced into England with William I. The counties were also called bailiwicks, (ballivæ,) while the subdivisions were called hundreds; but, as the courts of the hundreds have long since ceased, the English bailiffs are only a kind of subordinate officers of justice, like the French huissiers. These correspond very nearly to the officers called constables in the United States. Every sheriff has some of them under him, for whom he is answerable. In some cities the highest municipal officer yet bears this name, as the high bailiff of Westminster. In London, the Lord Mayor is at the same time bailiff, (which title he bore before the present became usual,) and administers, in this quality, the criminal jurisdiction of the city, in the court of old Bailey, where there are, annually, eight sittings of the court, for the city of London and the county of Middlesex. Usually, the recorder of London supplies his place as judge. In some instances the term bailiff, in England, is applied to the chief magistrates of towns, or to the commanders of particular castles, as that of Dover. The term baillie, in Scotland, is applied to a judicial police-officer, having powers very similar to those of justices of peace in the United States.”—Encyclopædia Americana.

Alderman was a title anciently given to various judicial officers, as the Alderman of all England, Alderman of the King, Alderman of the County, Alderman of the City or Borough, alderman of the Hundred or Wapentake. These were all judicial officers. See Law Dictionaries.

“Ban and arriere ban, a proclamation, whereby all that hold lands of the crown, (except some privileged officers and citizens,) are summoned to meet at a certain place in order to serve the king in his wars, either personally, or by proxy.”—Boyer.

Perhaps it may be said (and such, it has already been seen, is the opinion of Coke and others) that the chapter of Magna Carta, that “no bailiff from henceforth shall put any man to his open law, (put him on trial,) nor to an oath (that is, an oath of self-exculpation) upon his (the bailiff’s) own accusation or testimony, without credible witnesses brought in to prove the charge,” is itself a “provision in regard to the king’s justices sitting in criminal trials,” and therefore implies that they are to sit in such trials.

But, although the word bailiff includes all judicial, as well as other, officers, and would therefore in this case apply to the king’s justices, if they were to sit in criminal trials; yet this particular chapter of Magna Carta evidently does not contemplate “bailiffs” while acting in their judicial capacity, (for they were not allowed to sit in criminal trials at all,) but only in the character of witnesses; and that the meaning of the chapter is, that the simple testimony (simplici loquela) of “no bailiff,” (of whatever kind,) unsupported by other and “credible witnesses,” shall be sufficient to put any man on trial, or to his oath of self-exculpation.*

It will be noticed that the words of this chapter are not, “no bailiff of ours,”—that is, of the king,—as in some other chapters of Magna Carta; but simply “no bailiff,” &c. The prohibition, therefore, applies to all “bailiffs,”—to those chosen by the people, as well as those appointed by the king. And the prohibition is obviously founded upon the idea (a very sound one in that age certainly, and probably also in this) that public officers (whether appointed by king or people) have generally, or at least frequently, too many interests and animosities against accused persons, to make it safe to convict any man on their testimony alone.

The idea of Coke and others, that the object of this chapter was simply to forbid magistrates to put a man on trial, when there were no witnesses against him, but only the simple accusation or testimony of the magistrates themselves, before whom he was to be tried, is preposterous; for that would be equivalent to supposing that magistrates acted in the triple character of judge, jury and witnesses, in the same trial; and that, therefore, in such cases, they needed to be prohibited from condemning a man on their own accusation or testimony alone. But such a provision would have been unnecessary and senseless, for two reasons; first, because the bailiffs or magistrates had no power to “hold pleas of the crown,” still less to try or condemn a man; that power resting wholly with the juries; second, because if bailiffs or magistrates could try and condemn a man, without a jury, the prohibition upon their doing so upon their own accusation or testimony alone, would give no additional protection to the accused, so long as these same bailiffs or magistrates were allowed to decide what weight should be given, both to their own testimony and that of other witnesses; for, if they wished to convict, they would of course decide that any testimony, however frivolous or irrelevant, in addition to their own, was sufficient. Certainly a magistrate could always procure witnesses enough to testify to something or other, which he himself could decide to be corroborative of his own testimony. And thus the prohibition would be defeated in fact, though observed in form.

At the common law, parties, in both civil and criminal cases, were allowed to swear in their own behalf; and it will be so again, if the true trial by jury should be reestablished.

In this chapter I have called the justices “presiding officers,” solely for the want of a better term. They are not “presiding officers,” in the sense of having any authority over the jury; but are only assistants to, and teachers and servants of, the jury. The foreman of the jury is properly the “presiding officer,” so far as there is such an officer at all. The sheriff has no authority except over other persons than the jury.

2 Sullivan Lectures, 234-5. 3 Blackstone, 274-5, 376. Sullivan says that both plaintiffs and defendants were liable to amercement. Blackstone speaks of plaintiffs being liable, without saying whether defendants were so or not. What the rule really was I do not know. There would seem to be some reason in allowing defendants to defend themselves, at their own charges, without exposing themselves to amercement in case of failure.

When any other witnesses than freeholders were required in a civil suit, I am not aware of the manner in which their attendance was procured; but it was doubtless done at the expense either of the state or of the witnesses themselves. And it was doubtless the same in criminal cases.

“All claims were established in the first stage by the oath of the plaintiff, except when otherwise specially directed by the law. The oath, by which any claim was supported, was called the fore-oath, or ‘Præjuramentum,’ and it was the foundation of his suit. One of the cases which did not require this initiatory confirmation, was when cattle could be tracked into another man’s land, and then the foot-mark stood for the fore-oath.”—2 Palgrave’s Rise and Progress, &c., 114.

Among the necessary expenses of suits, should be reckoned reasonable compensation to counsel, for they are nearly or quite as important to the administration of justice, as are judges, jurors, or witnesses; and the universal practice of employing them, both on the part of governments and of private persons, shows that their importance is generally understood. As a mere matter of economy, too, it would be wise for the government to pay them, rather than they should not be employed; because they collect and arrange the testimony and the law beforehand, so as to be able to present the whole case to the court and jury intelligibly, and in a short space of time. Whereas, if they were not employed, the court and jury would be under the necessity either of spending much more time than now in the investigation of causes, or of despatching them in haste, and with little regard to justice. They would be very likely to do the latter, thus defeating the whole object of the people in establishing courts.

To prevent the abuse of this right, it should perhaps be left discretionary with the jury in each case to determine whether the counsel should receive any pay—and, if any, how much—from the government.

This presumption, founded upon age alone, is as absurd in civil matters as in criminal. What can be more entirely ludicrous than the idea that all men (not manifestly imbecile) become mentally competent to make all contracts whatsoever on the day they become twenty-one years of age?—and that, previous to that day, no man becomes competent to make any contract whatever, except for the present supply of the most obvious wants of nature? In reason, a man’s legal competency to make binding contracts, in any and every case whatever, depends wholly upon his mental capacity to make reasonable contracts in each particular case. It of course requires more capacity to make a reasonable contract in some cases than in others. It requires, for example, more capacity to make a reasonable contract in the purchase of a large estate, than in the purchase of a pair of shoes. But the mental capacity to make a reasonable contract, in any particular case, is, in reason, the only legal criterion of the legal competency to make a binding contract in that case. The age, whether more or less than twenty-one years, is of no legal consequence whatever, except that it is entitled to some consideration as evidence of capacity.

It may be mentioned, in this connection, that the rules that prevail, that every man is entitled to freedom from parental authority at twenty-one years of age, and no one before that age, are of the same class of absurdities with those that have been mentioned. The only ground on which a parent is ever entitled to exercise authority over his child, is that the child is incapable of taking reasonable care of himself. The child would be entitled to his freedom from his birth, if he were at that time capable of taking reasonable care of himself. Some become capable of taking care of themselves at an earlier age than others. And whenever any one becomes capable of taking reasonable care of himself, and not until then, he is entitled to his freedom, be his age more or less.

These principles would prevail under the true trial by jury, the jury being the judges of the capacity of every individual whose capacity should be called in question.

In contrast to the doctrines of the text, it may be proper to present more distinctly the doctrines that are maintained by judges, and that prevail in courts of justice.

Of course, no judge, either of the present day, or perhaps within the last five hundred years, has admitted the right of a jury to judge of the justice of a law, or to hold any law invalid for its injustice. Every judge asserts the power of the government to punish for acts that are intrinsically innocent, and which therefore involve or evince no criminal intent. To accommodate the administration of law to this principle, all judges, so far as I am aware, hold it to be unnecessary that an indictment should charge, or that a jury should find, that an act was done with a criminal intent, except in those cases where the act is malum in se,—criminal in itself. In all other cases, so far as I am aware, they hold it sufficient that the indictment charge, and consequently that the jury find, simply that the act was done “contrary to the form of the statute in such case made and provided;” in other words, contrary to the orders of the government.

All these doctrines prevail universally among judges, and are, I think, uniformly practised upon in courts of justice; and they plainly involve the most absolute despotism on the part of the government.

But there is still another doctrine that extensively, and perhaps most generally, prevails in practice, although judges are not agreed in regard to its soundness. It is this: that it is not even necessary that the jury should see or know, for themselves, what the law is that is charged to have been violated; nor to see or know, for themselves, that the act charged was in violation of any law whatever;—but that it is sufficient that they be simply told by the judge that any act whatever, charged in an indictment, is in violation of law, and that they are then bound blindly to receive the declaration as true, and convict a man accordingly, if they find that he has done the act charged.

This doctrine is adopted by many among the most eminent judges, and the reasons for it are thus given by Lord Mansfield:

What is this but saying that the people, who are supposed to be represented in juries, and who institute and support the government, (of course for the protection of their own rights and liberties, as they understand them, for plainly no other motive can be attributed to them,) are really the slaves of a despotic power, whose arbitrary commands even they are not supposed competent to understand, but for the transgression of which they are nevertheless to be punished as criminals?

This is plainly the sum of the doctrine, because the jury are the peers (equals) of the accused, and are therefore supposed to know the law as well as he does, and as well as it is known by the people at large. If they (the jury) are not presumed to know the law, neither the accused nor the people at large can be presumed to know it. Hence, it follows that one principle of the true trial by jury is, that no accused person shall be held responsible for any other or greater knowledge of the law than is common to his political equals, who will generally be men of nearly similar condition in life. But the doctrine of Mansfield is, that the body of the people, from whom jurors are taken, are responsible to a law, which it is agreed they cannot understand. What is this but despotism?—and not merely despotism, but insult and oppression of the intensest kind?

This doctrine of Mansfield is the doctrine of all who deny the right of juries to judge of the law, although all may not choose to express it in so blunt and unambiguous terms. But the doctrine evidently admits of no other interpretation or defence.

This declaration of Mansfield, that juries in England “are not sworn to decide the law” in criminal cases, is a plain falsehood. They are sworn to try the whole case at issue between the king and the prisoner, and that includes the law as well as the fact. See juror’s oath, page 86.

Mackintosh’s Hist. of Eng., ch. 3. 45 Lardner’s Cab. Cyc., 354.

“Forty shilling freeholders” were those “people dwelling and resident in the same counties, whereof every one of them shall have free land or tenement to the value of forty shillings by the year at the least above all charges.” By statuto 8 Henry 6, ch. 7, (1429,) these freeholders only were allowed to vote for members of Parliament from the counties.

He probably speaks in its favor only to blind the eyes of the people to the frauds he has attempted upon its true meaning.

It will be noticed that Coke calls these confirmations of the charter “acts of parliament,” instead of acts of the king alone. This needs explanation.

It was one of Coke’s ridiculous pretences, that laws anciently enacted by the king, at the request, or with the consent, or by the advice, of his parliament, was “an act of parliament,” instead of the act of the king. And in the extracts cited, he carries this idea so far as to pretend that the various confirmations of the Great Charter were “acts of parliament,” instead of the acts of the kings. He might as well have pretended that the original grant of the Charter was an “act of parliament;” because it was not only granted at the request, and with the consent, and by the advice, but on the compulsion even, of those who commonly constituted his parliaments. Yet this did not make the grant of the charter “an act of parliament.” It was simply an act of the king.

The object of Coke, in this pretence, was to furnish some color for the palpable falsehood that the legislative authority, which parliament was trying to assume in his own day, and which it finally succeeded in obtaining, had a precedent in the ancient constitution of the kingdom.

There would be as much reason in saying that, because the ancient kings were in the habit of passing laws in special answer to the petitions of their subjects, therefore those petitioners were a part of the legislative power of the kingdom.

One great objection to this argument of Coke, for the legislative authority of the ancient parliaments, is that a very large—probably much the larger—number of legislative acts were done without the advice, consent, request, or even presence, of a parliament. Not only were many formal statutes passed without any mention of the consent or advice of parliament, but a simple order of the king in council, or a simple proclamation, writ, or letter under seal, issued by his command, had the same force as what Coke calls “an act of parliament.” And this practice continued, to a considerable extent at least, down to Coke’s own time.

The kings were always in the habit of consulting their parliaments, more or less, in regard to matters of legislation,—not because their consent was constitutionally necessary, but in order to make influence in favor of their laws, and thus induce the people to observe them, and the juries to enforce them.

The general duties of the ancient parliaments were not legislative, but judicial, as will be shown more fully hereafter. The people were not represented in the parliaments at the time of Magna Carta, but only the archbishops, bishops, earls, barons, and knights; so that little or nothing would have been gained for liberty by Coke’s idea that parliament had a legislative power. He would only have substituted an aristocracy for a king. Even after the Commons were represented in parliament, they for some centuries appeared only as petitioners, except in the matter of taxation, when their consent was asked. And almost the only source of their influence on legislation was this: that they would sometimes refuse their consent to the taxation, unless the king would pass such laws as they petitioned for; or, as would seem to have been much more frequently the case, unless he would abolish such laws and practices as they remonstrated against.

The influence or power of parliament, and especially of the Commons, in the general legislation of the country, was a thing of slow growth, having its origin in a device of the king to get money contrary to law, (as will be seen in the next volume,) and not at all a part of the constitution of the kingdom, nor having its foundation in the consent of the people. The power, as at present exercised, was not fully established until 1688, (near five hundred years after Magna Carta,) when the House of Commons (falsely so called) had acquired such influence as the representative, not of the people, but of the wealth, of the nation, that they compelled the king to discard the oath fixed by the constitution of the kingdom; (which oath has been already given in a former chapter,* and was, in substance, to preserve and execute the Common Law, the Law of the Land,—or, in the words of the oath, “the just laws and customs which the common people had chosen;”) and to swear that he would “govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in parliament agreed on, and the laws and customs of the same.”*

The passage and enforcement of this statute, and the assumption of this oath by the king, were plain violations of the English constitution, inasmuch as they abolished, so far as such an oath could abolish, the legislative power of the king, and also “those just laws and customs which the common people (through their juries) had chosen,” and substituted the will of parliament in their stead.

Coke was a great advocate for the legislative power of parliament, as a means of restraining the power of the king. As he denied all power to juries to decide upon the obligation of laws, and as he held that the legislative power was “so transcendent and absolute as (that) it cannot be confined, either for causes or persons, within any bounds,”† he was perhaps honest in holding that it was safer to trust this terrific power in the hands of parliament, than in the hands of the king. His error consisted in holding that either the king or parliament had any such power, or that they had any power at all to pass laws that should be binding upon a jury.

These declarations of Coke, that the charter was confirmed by thirty-two “acts of parliament,” have a mischievous bearing in another respect. They tend to weaken the authority of the charter, by conveying the impression that the charter itself might be abolished by “act of parliament.” Coke himself admits that it could not be revoked or rescinded by the king; for he says, “All pretence of prerogative against Magna Carta is taken away.” (2 Inst., 36.)

He knew perfectly well, and the whole English nation knew, that the king could not lawfully infringe Magna Carta. Magna Carta, therefore, made it impossible that absolute power could ever be practically established in England, in the hands of the king. Hence, as Coke was an advocate for absolute power,—that is, for a legislative power “so transcendent and absolute as (that) it cannot be confined, either for causes or persons, within any bounds,”—there was no alternative for him but to vest this absolute power in parliament. Had he not vested it in parliament, he would have been obliged to abjure it altogether, and to confess that the people, through their juries, had the right to judge of the obligation of all legislation whatsoever; in other words, that they had the right to confine the government within the limits of “those just laws and customs which the common people (acting as jurors) had chosen.” True to his instincts, as a judge, and as a tyrant, he assumed that this absolute power was vested in the hands of parliament.

But the truth was that, as by the English constitution parliament had no authority at all for general legislation, it could no more confirm, than it could abolish, Magna Carta.

These thirty-two confirmations of Magna Carta, which Coke speaks of as “acts of parliament,” were merely acts of the king. The parliaments, indeed, by refusing to grant him money, except on that condition, and otherwise, had contributed to oblige him to make the confirmations; just as they had helped to oblige him by arms to grant the charter in the first place. But the confirmations themselves were nevertheless constitutionally, as well as formally, the acts of the king alone.

See page 101.

St. 1 William and Mary, ch. 6, (1688.)

4 Inst., 36.

Under the head of “John.”

4 Blackstone, 349-50.

3 Blackstone, 379.

Hume, ch. 2.

Page 203, 5th edition, 1721.

Such as restraints upon banking, upon the rates of interest, upon traffic with foreigners, &c., &c.

Trial by the country, and no taxation without consent, mutually sustain each other, and can be sustained only by each other, for these reasons: 1. Juries would refuse to enforce a tax against a man who had never agreed to pay it. They would also protect men in forcibly resisting the collection of taxes to which they had never consented. Otherwise the jurors would authorize the government to tax themselves without their consent,—a thing which no jury would be likely to do. In these two ways, then, trial by the country would sustain the principle of no taxation without consent. 2. On the other hand, the principle of no taxation without consent would sustain the trial by the country, because men in general would not consent to be taxed for the support of a government under which trial by the country was not secured. Thus these two principles mutually sustain each other.

But, if either of these principles were broken down, the other would fall with it, and for these reasons: 1. If trial by the country were broken down, the principle of no taxation without consent would fall with it, because the government would then be able to tax the people without their consent, inasmuch as the legal tribunals would be mere tools of the government, and would enforce such taxation, and punish men for resisting such taxation, as the government ordered. 2. On the other hand, if the principle of no taxation without consent were broken down, trial by the country would fall with it, because the government, if it could tax people without their consent, would, of course, take enough of their money to enable it to employ all the force necessary for sustaining its own tribunals, (in the place of Juries,) and carrying their decrees into execution.

CONTENTS OF VOLUME I.

• CHAPTER I. THE LAW OF NATURE, RELATIVE TO INTELLECTUAL PROPERTY, . . . . page 9
  • Section 1. The Right Property in Ideas to be proved by Analogy, . . . . . . 9
  • Section 2. What is Wealth? . . . . . 10
  • Section 3. What is Property? . . . . . 15
  • Section 4. What is the Right of Property? . . 15
  • Section 5. What Things are Subjects of Property? 17
  • Section 6. How is the Right of Property Acquired? 21
  • Section 7. What is the Foundation of the Right of Property? . . . . . . 28
  • Section 8. How is the Right of Property Transferred? 29
  • Section 9. Conclusions from the preceding Principles, 30
• CHAPTER II. OBJECTIONS ANSWERED, . . . . 31
  • Section 1. Objection First, . . . . . 31
  • Section 2. Objection Second, . . . . . 41
  • Section 3. Objection Third, . . . . . 57
  • Section 4. Objection Fourth, . . . . . 59
  • Section 5. Objection Fifth, . . . . . 61
  • Section 6. Objection Sixth, . . . . . 64
  • Section 7. Objection Seventh, . . . . 68
  • Section 8. Objection Eighth, . . . . . 69 Edition: current; Page: [iv]
  • Section 9. Objection Ninth, . . . . . 70
  • Section 10. Objection Tenth, . . . . . 73
  • Section 11. Objection Eleventh, . . . . 75
  • Section 12. Objection Twelfth, . . . . . 91
  • Section 13. Objection Thirteenth, . . . . 102
  • Section 14. Objection Fourteenth, . . . . 105
  • Section 15. Objection Fifteenth, . . . . 108
• CHAPTER III. PERPETUITY AND DESCENT OF INTELLECTUAL PROPERTY, . . . . . 109
  • Section 1. Perpetuity of Intellectual Property, . 109
  • Section 2. Descent of Intellectual Property, . . 109
• CHAPTER IV. THE SALE OF IDEAS, . . . . . 113
• CHAPTER V. THE POLICY OF PERPETUITY IN INTELLECTUAL PROPERTY, . . . . . 135

NOTE.

In the second volume of this work, it is the intention of the author to discuss the following topics, viz.:—

1. The Common Law of England, relative to Intellectual Property—reviewing the English decisions.

2. The Constitutional Law of the United States—reviewing the acts of Congress and the judicial decisions.

3. International Law.

4. Various other topics of minor importance connected with the subject.

He expects to prove, among other things, that it is the present constitutional duty of courts, both in England and America—any acts of parliament or of congress to the contrary notwithstanding—to maintain the principle of perpetuity in intellectual property, and also to give to such property the protection of the criminal law

CHAPTER I.: THE LAW OF NATURE IN REGARD TO INTELLECTUAL PROPERTY.

CHAPTER II.: OBJECTIONS ANSWERED.

The objections that will be urged to the principles of the preceding chapter, are the following.

CHAPTER III.: PERPETUITY AND DESCENT OF INTELLECTUAL PROPERTY.

CHAPTER IV.: THE SALE OF IDEAS.

There remain to be considered some important questions, in regard to the sale of ideas, in connexion with books, machines, statues, pictures, &c. We will first speak of the sale of them in connexion with books; and of the other cases afterward.

When an author sells a copy of his book, does that sale carry with it the right to reprint the book? Or does he reserve that right exclusively to himself?

If he reserve that right exclusively to himself, how does that reservation legally appear, when no express stipulation of the kind is shown?

If the purchaser of a book do not buy with it the right to reprint it, what right of property or use does he buy, in the ideas which the book communicates? And how are legal tribunals to know what right of property, in the ideas, which the book communicates, is conveyed by the sale of the book itself?

Questions of this kind have been proposed, by those who deny that any exclusive right of multiplying copies, can remain with the author, after he has sold copies of his book unreservedly in the market. These persons say that, by selling his book unreservedly, the author necessarily sells the right to make any and all possible uses of the ideas communicated by the book; that the reprinting of the book is only one of the uses, to which the copy sold is capable of being applied; and that the right to use the copy for this purpose, is as much implied in the sale of the book, as is any other use of it whatever.

These questions and arguments were forcibly presented by Justice Yates, and by Lord Chief Justice De Grey, as follows.

Justice Yates said, “Every purchaser of a book is the owner of it; and, as such, he has a right to make what use of it he pleases.

“Property, according to the definition given of it by the defendant’s counsel, is ‘jus utendi, et fruendi’ [the right of using and enjoying]. And the author, by empowering the bookseller to sell, empowers him to convey this general property; and the purchaser makes no stipulations about the manner of using it.

“The publisher himself, who claims this property, sold these books, without making any contract whatever. What color has he to retrench his own contract? or impose such a prohibition?” [a prohibition upon reprinting the book.]

“If the buyer of a book may not make what use of it he pleases, what line can be drawn, that will not tend to supersede all his dominion over it? He may not lend it, if he is not to print it; because it will intrench upon the author’s profits. So that an objection might be made even to his lending the book to his friends; for he may prevent those friends from buying the book; and so the profits of such sale of it will not accrue to the author. I do not see that he would have a right to copy the book he has purchased, if he may not make a print of it; for printing is only a method of transcribing.

“With regard to books, the very matter and contents of the books are, by the author’s publication of them, irrevocably given to the public; they become common; all the sentiments contained therein, rendered universally common; and when the sentiments are made common by the author’s own act, every use of those sentiments must be equally common.

“To talk of restraining this gift, by any mental reservation of the author, or any bargain he may make with his bookseller, seems to me quite chimerical.

“It is by legal actions that other men must judge and direct their conduct; and if such actions plainly import the work being made common; much more, if it be a necessary consequence of the act, ‘that the work is actually thrown open by it;’ no private transaction, or secretly reserved claim of the author, can ever control that necessary consequence. Individuals have no power, (whatever they may wish or intend,) to alter the fixed constitution of things; a man cannot retain what he parts with. If the author will voluntarily let the bird fly, his property is gone; and it will be in vain for him to say ‘he meant to retain’ what is absolutely flown and gone.”*

Lord Chief Justice De Grey said:

These questions and arguments are of vital importance to the principle of intellectual property. They are worthy of being answered. They must be answered, before the principle of exclusive copyright can be maintained, as a part of the law of nature. Yet, I apprehend, they have never been adequately answered.

The common, and I believe the only, answers, that have ever been made to these arguments, have been, 1st. That it is only by the multiplication of copies, that an author can expect to get paid for the labor of producing his book; and therefore it would be unreasonable to suppose that he intends to part with his exclusive right to multiply copies, for so trivial a price as the profit made upon a single book. 2d. That if an author were to part with his exclusive right to multiply copies, his ideas might be misrepresented, mutilated, and attributed to other persons than himself; and thus his reputation suffer, without his having any means of redress; and that it is therefore unreasonable to suppose he intends to subject himself to the liability of such injustice, for so small a consideration as the profit on a single copy of his book.

These are no doubt weighty considerations; but they do not fully meet the question. A man, who gratuitously gives away his ideas in conversation, loses all chance of reaping any pecuniary profit from them. He is also liable to have his views misrepresented, mutilated, and attributed to others than himself. But the law does not, for these reasons, uniformly imply that he Edition: current; Page: [116] reserved any exclusive right of property in, or control over, them. And if it will not imply this, in the case of a man, who gives his ideas gratuitously to the public, why should it do it for a man who has sold, and received a price for, his ideas?

The argument of inadequacy of price is an insufficient one, for various reasons, as follows.

1. Inadequacy of price is, of itself, no objection to the validity of a sale, where no fraud is alleged.

2. Inadequacy of price is oftentimes, in practice, a very difficult thing to be proved; and would be especially so in the case of the copyrights of books. Men’s opinions differ so much as to the intrinsic merits of particular books; and the market value of a copyright often depends so little upon the book’s intrinsic merits, that inadequacy of price could seldom or never be proved. Milton, assuming that he had a perpetual copyright in his Paradise Lost, sold it for five pounds. Yet this was a legal sale, and its validity could not be impeached for inadequacy of price.

3. The difference in price between a book, of which the copyright is reserved, and one of which the copyright is not reserved, is too slight to afford any sufficient evidence, of itself, to a judicial tribunal, whether the copyright was, or was not, reserved.

4. If, as the opponents of an exclusive copyright contend, every purchaser of a book purchases with it the right of reprinting it, no one purchaser could afford to pay but a trivial price above the value of the book, independently of that right; because he would buy no exclusive right; but only a right to be held in common with all other purchasers of copies. He could therefore secure no monopoly in the publication of the book; but could only print it in competition with all others, who should choose to print it. For such a right he could, of course, afford to pay but a merely trivial price, independently of the value of the book for other uses. How then could it ever be proved that he had paid an inadequate price for such a right as he has purchased?

5. If the author, by selling each copy of his book unreservedly, sells with it the right of multiplying copies, then the Edition: current; Page: [117] presumption would be, that he received a price at least somewhat higher, for each copy, than he could have sold it for, if he had expressly stipulated that it should not be used for multiplying copies; and from this presumption it would follow, as a legitimate inference, that he had chosen to adopt this mode of getting paid for his copyright—that is, by a slightly additional price on each copy sold—rather than by the sale of the exclusive copyright to any one individual.

The original question, then, necessarily returns, viz.: What right has the purchaser of the book obtained? Has he purchased the right to multiply copies? Or only the right to use, in other ways, the particular copy that he has purchased? And, especially, how can legal tribunals know what right has been bought and sold?

It evidently will not do for an author, after he has sold a book unreservedly, to say, arbitrarily, that he did not intend to part with his exclusive copyright; since it is clear that, in law, every man must be held to have intended every thing that is necessarily implied in his voluntary act.

The whole question, then, resolves itself into this, viz.: What, on legal principles, is necessarily implied in the sale of a book, by an author, when no express stipulation is entered into, as to the use that is to be made of it? In other words, What rights, in the ideas communicated by the book, does the author necessarily convey, when the sale of the book itself is qualified by no express restriction upon its use?

I shall offer an answer to this question, by attempting to prove, what seems almost too nearly self-evident to need to be proved, viz.: That a book, and the ideas it describes, are, in fact, and in law, distinct commodities; and that an unqualified sale of the book does not, therefore, of itself alone, imply any sale whatever of the ideas it describes, nor the conveyance of any right whatever to the use of those ideas.

By this I mean that the sale of the book conveys, of itself, no right of property or use in the ideas, beyond that merely mental Edition: current; Page: [118] possession and mental enjoyment of them, which are indeed a species of property and use; and necessarily, or at least naturally, follow from reading the book; but which, for the sake of brevity and clearness in this discussion, I shall leave out of consideration.*

It will therefore be understood, when, in the remainder of this chapter, I speak of “property” in, and “use” of, ideas, that I mean a property and use beyond, or additional to, this merely mental possession and enjoyment of them.

To state more precisely the point to be proved. Suppose the author of a valuable mechanical invention were to write, and sell unreservedly in the market, a book describing his machine so fully that a reader would be able, from the description given, to construct and operate a similar machine. The purchaser of the book would, in this case, acquire a right to the mental possession, and mental enjoyment, of all the knowledge communicated by the book; but he would acquire, simply by virtue of his purchase of the book, no right whatever to use that knowledge in constructing or operating a machine like the one described. And the same principle applies to all other ideas described in books. This is the point to be proved.

If the first of the foregoing propositions be true, viz.: “That a book, and the ideas it communicates, are, in fact, and in law, distinct commodities,” the truth of the succeeding proposition, viz.: “That an unqualified sale of the book does not, of itself alone, imply any sale whatever of the ideas it describes, nor the conveyance of any right whatever to the use of those ideas,” would seem to follow of course; because the sale of one thing Edition: current; Page: [119] can, perhaps, never, of itself, imply the sale of another thing, that has a separate and distinct existence.

That a book, and the ideas it communicates, are, in fact and in law, separate and distinct commodities, is apparent from the following considerations, viz.

1. What is an idea? It is a production of the mind. It is wholly immaterial. It has no existence, except in the mind. It can exist only in the mind. It no more exists in a book, than it does in a stone, or a tree. It can no more exist in a book, than in a stone, or a tree.

2. What is a book? It is mere paper and ink. It is entirely material. In its nature, it differs as much from an idea, as a stone or a tree differs from an idea. There is no more natural affinity between a book and an idea, than there is between a stone, or a tree, and an idea. That is, an idea will no more inhere in, or adhere to, a book, than it will inhere in, or adhere to, a stone or a tree.

When, therefore, a man buys a book, he does not buy any ideas; because ideas themselves are no part of the book; nor are they in any way attached to the book. They exist only in the mind.

A book, therefore, does not, as, in common parlance, is habitually asserted, contain, any ideas. The most that can be said, is, that it represents, describes, or perhaps more properly still, suggests, or brings to mind, ideas. And how does it do this? In this way only. The book consists of paper, with certain characters, in ink, stamped upon it. These characters were devised to be used as arbitrary signs, or representatives, of certain sounds uttered by the human voice. And by common consent among those, who are acquainted with these arbitrary significations, that have been attached to them, they are used to represent those sounds. The vocal sounds, which these characters arbitrarily represent, are, by common consent, used by mankind, as the names of certain ideas. These names of the ideas are not the ideas themselves, any more than the name of a man is the Edition: current; Page: [120] man himself. But when we hear the names of these ideas, the ideas themselves are brought to our minds; just as, when we hear the name of a man, the man himself is brought to mind. In this way the characters printed, in ink, in a book, are used as the signs, representatives, or names, at second hand, of men’s ideas; that is, they represent certain sounds, which sounds stand for, represent, and thus call to mind, the ideas. This is all the resemblance a book has to the ideas, which it is employed to communicate.

The most, therefore, that can be said of a book, is, that it consists of, or contains, certain material things, to wit, characters in ink, stamped on paper, which, by common consent among mankind, are used to represent, describe, suggest, or carry to one’s mind, certain immaterial things, to wit, ideas.

It is, therefore, only by a figure of speech, that we say that a book contains ideas. We mean only that it contains, or consists of, certain material things, which suggest ideas. It contains only such material signs, symbols, or arbitrary representatives of ideas, as one mind employs in order to suggest or convey its ideas to other minds.

Now, unless the sale of a material symbol, or representative, be legally and necessarily identical with the sale of the immaterial idea, which that symbol represents, or suggests, it is clear that the sale of a book is not, legally or necessarily, identical with the sale of the ideas, which that book may suggest to the reader.

The ideas themselves are not contained in the book; they constitute no part of the book; they have their whole existence entirely separate from the book—that is, in the mind; the whole object, design, and effect of the book are, to suggest certain ideas to the mind of the reader, and thereby act as a vehicle, or instrumentality, for conveying the ideas from one mind to another.

What ground is there, then, for saying that the sale of the book is necessarily or legally identical with the sale of the ideas, which it communicates, describes, or suggests? None whatever.

Suppose a man make a book, containing such drawings, pictures, and written descriptions, of his house, his farm, his horses, and his cattle, as are sufficient to bring those commodities to the mind of the reader. And suppose he then sell that book unreservedly in the market. Does the purchaser of the book acquire, by virtue of that purchase, any right of property or use in the commodities described in the book? Certainly not. And why not? Simply because the book, and the things it describes, are, in fact, and in law, separate and distinct commodities; and the sale of the one does not, therefore, at all imply the sale of the other.

The same principle applies to a book, that describes ideas, instead of houses and lands. The book, and the ideas it describes, are as much separate and distinct commodities, in the one case, as are the book, and the houses and lands it describes, in the other. And the sale of the book, that describes the ideas, no more implies the sale of the ideas, than the sale of the book, that describes the houses and lands, implies the sale of the houses and lands.

The only difference between the two cases, is this wholly immaterial one, viz.: that the written descriptions, of the ideas, are sufficient to put the reader in actual possession of the ideas described—that is, in mental possession of them, which is the only possession, of which they are susceptible; whereas the written descriptions, of the houses and lands, are not sufficient to put the reader in actual possession of those commodities; since the possession of houses and lands must be a physical, instead of a mental one. But this difference, in the two cases, is wholly immaterial to the right of property for use; because simple possession of the ideas, (and this is all the book gives,) is of no importance, in law, without the right of property for use—as has been already explained in chapter 2d, section 2.*

The conclusion, therefore, that the sale of a book, describing ideas, gives no right of property in the ideas, for use, is just as valid and inevitable, as is the conclusion, that the sale of a book, describing houses and lands, gives no right of property in the houses and lands, for use.

An author, in selling a book, sells nothing but the book itself; the right to use the book itself; and the right to all the benefits, which necessarily or naturally result to the reader from the use of the book alone. He sells nothing that the book describes; nor the right to use any thing that the book describes.

The question arises, then, what is necessarily, naturally, or legally involved in the use of the book alone? The answer is this.

The whole object and effect of the book itself, as a representative of ideas, are accomplished, when it has suggested to its readers all the ideas which it can suggest. Every possible use and power of the book itself, in relation to the ideas it describes, are exhausted in the execution of that single function. After that function is performed, the book itself is thrown aside, and has no part nor lot whatever in any of the uses, to which the ideas, it has suggested, may be applied. How, then, can it be said that the use of the book involves the use of the ideas it communicates, when the use of the ideas is a wholly separate act from the use of the book itself; and the use of the book itself is a wholly separate act from the use of the ideas? There would be just as much reason in saying that the use of a book, that described a farm, involved the use of the farm, as there is in saying that the use of a book, describing ideas, involves the use of those ideas.

Plainly, then, an author, by describing his ideas in a book, and then selling the book for use, gives no more right to the use Edition: current; Page: [123] of his ideas, than a man, who describes his farm in a book, and then sells the book for use, gives a right to the use of his farm.

Certainly, too, every purchaser of a book, that describes ideas, is as much bound to know, that the book and the ideas are separate and distinct commodities, as the purchaser of a book, that describes a farm, is bound to know that the book and the farm are separate and distinct commodities. And the purchaser of a book is also bound to know, that he no more acquires a right to use the ideas, by simply buying a description of them, than he acquires a right to use a farm, by simply buying a description of it.

But perhaps it will be said that the whole object, in buying a book, is to get possession of the ideas it describes; and that the whole object, in getting possession of the ideas it describes, is to use them for our benefit, as in the case of any material commodities, which we seek to get possession of; that the author knows all this when he sells the book; and that the law will consequently imply that he consented to it; inasmuch as otherwise it would impute to him the fraud of making a sale, in form, without intending that the real benefits of the sale should be enjoyed by the purchaser.

But there is no such analogy, between material and immaterial things, as is here assumed. The possession of material things, without the right of use, is a burden, because it imposes labor, without profit. Men therefore do not desire the possession of material things, unless they have also the right of using them. But it is wholly different with ideas. The simple possession of them is necessarily a good. They are no burden. They impose no profitless labor upon the possessor. They furnish food and enjoyment for his mind, and promote its health, strength, growth, and happiness, even though he be not permitted to use them, in competition with their owner, as a means of procuring subsistence for his body.

A very large proportion of all the books, that are purchased, are purchased solely for the mental enjoyment and instruction to Edition: current; Page: [124] be obtained by reading them; and not for the purpose of reprinting them, nor of using the ideas for any pecuniary end.

There is, therefore, no ground for saying that the whole object of buying books, is to get the ideas, to be used for pecuniary purposes; and that, unless they can be so used, the author has practised a fraud on the purchaser. The mental enjoyment and instruction, which the reading of books affords, are sufficient motives for the purchase of books, even though the right to use the ideas described in them, for pecuniary ends, be no part of the purchase.

Taking it for granted that it has now been established, that a book itself contains no ideas; that a book, and the ideas it describes, are, in fact, and in law, distinct commodities; and that the sale of the book legally implies no sale of the ideas for use (beyond the simple mental possession and enjoyment of them); I stop to anticipate an objection, viz.: It will be asked how one man can trespass upon another man’s right of property, in ideas, by simply printing and selling a book, that contains no ideas?

The answer to this question is, that a book cannot be printed without using the author’s ideas; inasmuch as those ideas are an indispensable guide to the work of printing a book that shall describe them. They are an indispensable guide to the work of setting the type that are to represent those ideas. It is impossible, therefore, that a book can be printed, without using the ideas which the book is to describe. This use, therefore, of an author’s ideas, unless with his consent, expressed or implied, is a trespass upon his right of property in them. The use of his ideas, without his consent, in making a valuable book, is as much a trespass upon his right of property in those ideas, as the use of a man’s printing press, without his consent, in printing the book, would be a trespass upon the owner’s right of property in the printing press.

But not merely the printing of a book, without the author’s consent, is a trespass upon his right of property in his ideas, but the sale, and even the reading, of a book thus printed, is also a Edition: current; Page: [125] trespass upon the same right of property—and why? Because the right of property is a right of absolute dominion. The owner of ideas, therefore, has a right to inhibit—and, where he reserves his copyright, he does inhibit—the communication of his ideas, from one mind to another, through the instrumentality of any books whatever, except such as he himself prints, or licenses to be printed. Any body, therefore, who either sells or reads a book, not printed by the author, nor licensed by him to be printed, is an accomplice and agent in taking the author’s ideas out of his control, and in communicating them through a channel or instrumentality, which he has inhibited to be used in the communication of his ideas.

So absolute is an author’s right of dominion over his ideas, that he may forbid their being communicated even by the human voice, if he so please. And such prohibition would be as perfectly legal, as any other act of dominion over them.

An author may, if he please, by express contract, restrict the communication of his ideas, beyond the first purchasers of the books, which he himself prints, or licenses to be printed; and thus make it necessary for every man to buy a book, and pay tribute on it to the author, in order to become-acquainted with the ideas. And there may, perhaps often, arise cases where it would be for the interest of an author to do so. But without such an express contract, the presumption of law would be, that the purchaser of a book had the consent of the author to sell it, lend it, or dispose of it, at his pleasure, as he would any other material property; and that every one, into whose hands it should thus lawfully come, might read it.

But here another question will be raised, viz.

If a book, and the ideas it describes, are distinct commodities; and if the sale of the book do not imply the sale of any right of property in the ideas described in it, (beyond the mere possession and mental enjoyment of them;) how is it that men can ever have a right to use any of the ideas described in books, without making a special purchase of them, separately from the book?

It is important that this question be answered; because, although the productions of every man’s mind are theoretically his property, yet we see that, in practice, not all, but nearly all, the ideas, that are described in books, are freely used by mankind at large, in any and every way in which they please to use them—(except the single one of reprinting the author’s descriptions of them)—without making any special purchase of them from the author, separately from the purchase of the books describing them. It may seem, at first view, that this practice must be illegal. But I shall attempt to show that mankind have a legal right to use, in this way, not all, but nearly all, the ideas that are described in books. And the question now is, how can they have this right, consistently with the principles hitherto laid down in this essay?

The answer to this question is to be obtained by applying, to each case, these general rules, viz.

When an author sells a book, describing his ideas, the law presumes that he intends to retain all such of his original exclusive rights of property in them, as may be practically valuable to him; and that he intends to abandon—not to sell, but to abandon—all such of his original exclusive rights of property in them, as would not be of any value to him, if retained.

The law raises these presumptions, on his part, because they are abstractly reasonable, and conformable to the principles of action, that generally govern mankind—that is, mankind generally wish to preserve all their rights of property, that will be practically valuable to them; and they generally wish not to look after, watch over, or consequently to preserve, any rights of property, that are too insignificant to be of any practical value to them.

These rules also, when applied to ideas, are only the synonyms or equivalents of the general principles, on which the administration of justice proceeds in all cases, viz.: that the government is established and maintained for practical, and not for merely theoretical, purposes; and that it will therefore protect a man in the Edition: current; Page: [127] possession of every thing that is his, and that is of any real appreciable value to him; but that it will incur neither the trouble nor expense of protecting him in that, which, though it may be theoretically his, is of no real appreciable value to him.

This, too, is, practically speaking, all the protection, which the law can give to a man’s rights of property, in any case; whether the property be material or immaterial; because the law can award no damages for the invasion of rights, unless the injury suffered be large enough to be capable of being measured by at least some legal standard of value, as a cent, a farthing, a penny, or some measure of that kind.

These principles are usually expressed by the legal maxim, de minimis non curat lex [the law takes no care of trifles;] (which maxim, by the way, implies that the law does take care of every thing that is of any real appreciable value).

The result of these principles, then, when applied to ideas, is simply this, viz.: wherever an author’s exclusive rights of property in them, can be of any real appreciable value to him, the law will protect him in them; inasmuch as it will presume that he desires to retain them. But wherever his exclusive rights of property in them, can be of no real appreciable value to him, the law will not protect them; but will presume that he voluntarily abandons them.

In other words, wherever an exclusive right of use would be more profitable to the author, than a right in common with the rest of mankind, there his exclusive right is presumed to be retained. But wherever a right of use, in common with the rest of mankind, would be just as profitable to the author, as an exclusive right, there his exclusive right is presumed to be abandoned, and only a common right retained.

Now, in order to determine what exclusive rights of property, in his ideas, can be made more valuable to the author, than a common right, we must determine, in the case of each idea, or collection of ideas, what profitable use he could make of an exclusive right, over a common right; or, on the other hand, what Edition: current; Page: [128] profits he would lose, by suffering his exclusive right to become common to all. And this question is one, which, in practice, could generally be very easily settled.

In the case of the most important labor-saving inventions, for example, the exclusive right of using them, is evidently more valuable than a right in common with the rest of mankind; because an exclusive right will sell for a price in the market; whereas a common right will not. An exclusive right will also be more profitable for the inventor, if wish to use it himself, than a common right; because it will enable him to avoid competition, and thus obtain a higher price for his labor. For these reasons the law will presume, in the case of such inventions—however fully they may be described in books, and however unreservedly such books may be sold in the market—that the authors choose to retain their exclusive right in them, for purposes of labor. At the same time, perhaps, the law will not presume that the inventors retain the exclusive right to their inventions, for literary purposes—that is, for the purpose of writing books describing them—because the profits, on the sale of such books, may be insignificant; and because also it may be for the interest of the inventors to have their inventions described by others than themselves, and thus more widely advertised for sale.

Nevertheless, in the case of most of the ideas described in books, the only exclusive right, that can be of any profit to the author, over a common right, is the right of using them for literary purposes. This, therefore, is the only exclusive right, which the law will ordinarily presume that the author wishes to retain.

The ideas, described in print, may be classed—with reference to the rights retained, and the rights abandoned, by the authors—under three heads.

In the first class may be reckoned those labor-saving, and other valuable, inventions, of which the authors retain the exclusive use, for the particular purposes for which the inventions are specially designed; but of which the authors do not, ordinarily, Edition: current; Page: [129] retain the exclusive use, for literary purposes—that is, for the purpose of writing descriptions of them.

In the second class may be reckoned those ideas, of which the authors retain the exclusive use, for literary purposes, but not for any other purpose.

In the third class may be reckoned those ideas, of which the authors retain no exclusive use whatever.

But let us explain, a little more particularly, the principles of law applicable to each of these classes of ideas.

1. As an example of the first class of ideas, take the invention of the steam engine. The invention itself is of immense value, for purposes of labor; but a book, describing it, would probably yield little or no profit, as a merely literary enterprise. If, therefore, the inventor of the steam engine were to write a book, making the invention fully known to the public, the law would nevertheless presume that he reserved his exclusive right to the invention, for use as a motive power; but, at the same time, it would probably presume that he abandoned his exclusive right to it, for literary purposes; and that he was willing it should be freely written about, by all who might choose to write about it. And even if other men should reprint his own description of it, without his consent, very likely the law would not say that any wrong had been done him; but rather a benefit, inasmuch as his invention would thus be more widely advertised, for sale, than it otherwise would be.

But if any other man, than the inventor, were to write a book describing the steam engine, the law would most likely presume that he wrote it solely as a literary enterprise; and that he therefore wished to retain his exclusive right of property in it.

2. In the second class of ideas—those, in which the authors retain an exclusive right, for literary purposes, but not for any other use—may be reckoned an infinite number of ideas, that are really useful to mankind, as guides for their conduct, under various circumstances in life; but which, nevertheless, have singly no appreciable market value, for use. Take, for example, Edition: current; Page: [130] the ideas, that the earth is a globe; that it turns on its axis; that it revolves round the sun; that honesty is the best policy; that industry and economy are the roads to wealth; that certain kinds of labor are injurious to the health; that certain kinds of food are more nutritious than others; that certain diseases are contagious, and others not; that certain animals are untamable and dangerous; that other animals are harmless, susceptible of being domesticated, and made subservient to the uses of man; that certain systems of philosophy and religion have more truth in them than others; and an infinite number of other ideas, which are valuable to mankind for use; but which, nevertheless, if offered for sale singly in the market, would not bring a farthing apiece, from one man in a thousand.

The only way, then, in which any exclusive property, in ideas of this kind, can be made valuable to the authors, is by using them for literary purposes, instead of attempting to sell the ideas themselves singly for use.

Since, then, this right to use one’s ideas, of this kind, for literary purposes, is the only exclusive right of property, that can be of any practical value to the author, it is the only exclusive right that the law will presume that he intends, or desires, to retain, when he sells a book describing them.

This exclusive right of using ideas for literary purposes, is what we call the copyright. And this is the only exclusive right of property, which authors usually retain, or wish to retain, in the ideas they describe in their books.

But, because a man has the exclusive right of using his own original ideas, for literary purposes, it must not be inferred that authors have any exclusive right of property of this kind, except in those particular ideas, which they themselves originate. Now it is only a very few of the leading, primary, and most important ideas, described in books, that are original with the authors of the books; inasmuch as the elementary truths, in nearly all departments of knowledge, have been long known to mankind. An author’s originality is, therefore, generally confined to secondary Edition: current; Page: [131] and subsidiary ideas, such as the combination, arrangement, and application of the leading or elementary ideas, and the style of the composition describing them. And it is only in these original ideas of his own, that the law gives him a copyright, or any exclusive property.

3. Among the examples of the third class of ideas—in which no exclusive right whatever is retained—may be reckoned a large proportion of the ideas, which appear in newspapers; especially the accounts of passing events, and comments thereon; which ideas have an interest to-day, but will be stale to-morrow; and an exclusive right in them will never be of any appreciable value to the author, either for the purpose of being reprinted, or for any other use. In this case the law presumes that the author retains no exclusive right of property in them; simply because such exclusive right would be of no practical value to him.

If, however, these ideas have any particular intellectual merit, which would add to the author’s reputation, the law will presume that he wishes to retain his exclusive right of property in them, so far as is necessary to secure to himself the reputation of authorship, even though no direct pecuniary advantage is to be derived from them. The law, therefore, will require that those, who reprint such ideas, should ascribe them to the true author, instead of printing them as their own. Of course this requirement applies only to such ideas, as have such an essential and important merit, as the authors may reasonably desire the credit of. It would not apply to ideas too trivial to be worthy of a reasonable man’s consideration. To such, the principle, that the law does not take care of trifles, would apply.

I shall now take it for granted, that it has been sufficiently shown, that a book, and the ideas described in it, are, in fact, and in law, distinct commodities; that the sale of the former implies no sale of any right of property in the latter, beyond the mere possession and mental enjoyment of them; that, with these exceptions, the law presumes that an author desires to retain his exclusive right in all his original ideas, for all purposes whatsoever, Edition: current; Page: [132] for which such exclusive right will have an appreciable value, pecuniarily or otherwise, over a right in common with the rest of mankind.

This presumption of law, in favor of the author, arises, without any special notice being given, in the book, that he wishes to retain his copyright, or any other exclusive right, in the ideas described. It arises, in the case of ideas, on the same principles, and for the same reasons, as in the case of material property, viz.: that the ideas are the products of labor; that they are naturally the property of the producer; and that it is as unreasonable to presume that he would gratuitously part with any valuable rights in them, as it is that he would gratuitously part with any equally valuable rights in his material property.

It is not legally necessary, therefore, that an author should give notice, in his book, that he retains his copyright, or any other right in the ideas described. Indeed it might, in some cases, be dangerous to give the notice “copyright reserved;” that is, in cases where still other rights, than the copyright, were intended to be reserved; because such notice, unaccompanied by any other special reservation, might imply that no other rights, than the copyright, were reserved.

But although it might be dangerous to give notice, simply of a reservation of “copyright,” where still other rights were intended to be reserved—as in the case of books describing valuable mechanical inventions, and also in the case of dramatic and musical compositions, where the right of performing the pieces was intended to be reserved—it might, nevertheless, be highly judicious, to give notice of the reservation, both of the copyright, and of all other rights intended to be reserved, in order to guard against any presumption of abandonment, in doubtful cases, against the will of the author.

Taking it for granted that the question, Whether the sale of a book unreservedly, implies a sale, for use, of the ideas described in it? has now been sufficiently answered, I proceed to answer another question, very similar in character and importance, to Edition: current; Page: [133] wit: Whether if an inventor make an unreserved sale of a machine, constructed in accordance with his invention, such sale will include the sale of a right to construct other similar machines? or only a right to use the particular machine sold?

It will be seen at once that much of the same reasoning, that is applicable to books, and the ideas described in them, is applicable also to machines, and the ideas, after which they are constructed. For example, the machine, and the idea, after which it is constructed, are, in fact and in law, separate and distinct commodities; as much so as are a book, and the ideas described in it. The machine does not literally contain the idea, after which it was constructed; although we are in the habit of speaking of machines in this manner. The idea does not exist in the machine; it exists only in the mind. The machine consists only of wood, iron, and other corporeal substances. The forms and shapes, given to those substances, are only effects, produced upon them by a combination of causes, to wit, the idea of the inventor, and the physical labor of the machinist; just as the order, arrangement, and collocation of the printed letters in a book, are effects produced by a combination of causes, to wit, the ideas of the author, and the physical labor of the printer. In both cases—that of a machine, and that of a book—we can ascertain the nature of the causes, (that is, the ideas, and the physical labor,) by an examination of their effects. But the causes and their effects are not, therefore identical. They are, in fact and in law, distinct entities; as much so as are any other causes and their effects. The machine, too, as a whole—that is, the wood, iron, or other corporeal substances, with the effects produced upon them, or the shapes given to them, by the idea of the inventor and the labor of the machinist—is clearly, in fact and in law, a distinct entity from the idea of the inventor, which can exist only in the mind. And the sale of the machine, therefore, implies no sale of the inventor’s idea, any farther or otherwise than this, to wit. The sale of the machine implies a right to use it; and the right to use it, implies a right to use the idea of the Edition: current; Page: [134] inventor, so far as it may be necessary to use it, in order to use the machine; but no farther.

The same question, in substance, may now be asked, in regard to a machine, that was before suggested in regard to a book, viz.: If a machine, and the inventor’s idea, after which it was constructed, be, in fact, and in law, distinct commodities; and if the machine do not literally contain the inventor’s idea; how can his rights of property, in that idea, be trespassed upon, by another person, in constructing or using a similar machine—that is, a machine which does not contain any idea whatever?

The answer is the same as in the case of the book, viz.: that, although the machine do not literally contain the inventor’s idea, yet the machine cannot be constructed without using his idea. That idea is an indispensable guide to the construction of the machine. And this use of the inventor’s idea, without his consent, is a violation of his rights of property in it.

So, also, in operating a machine, the operator uses the inventor’s idea; for he designs and endeavors to produce the same results, as those intended by the inventor, and by the same process, as that devised by the inventor. This, therefore, is a use of the inventor’s idea, and is consequently a trespass upon his rights.

The same principles apply to sculpture, painting, drawing, &c. A statute, and the design after which it was sculptured, are distinct commodities; and the sale of the statute does not convey any right to use the sculptor’s design, for the purpose of making a copy. The same is true of paintings and drawings, the designs of which can be made of sufficient practical value to the authors, to be entitled to be recognized, by law, as objects of private property.

It is not legally necessary to give notice, on a machine, that the invention is reserved; because, if the invention be such, as that the exclusive use of it will be of any really appreciable value to the author, every body is bound to presume that it is reserved. But where the fact of value is at all doubtful, it may be of utility to give the notice, in order to guard against the doubt.

CHAPTER V.: THE POLICY OF PERPETUITY IN INTELLECTUAL PROPERTY.

As a matter of public policy, the expediency of allowing a man a perpetual property in his ideas, is as clear as is that of allowing him a perpetual property in material things.

What is the argument of policy against a perpetual property in ideas? Principally this—that the world will get ideas cheaper, if they get them for nothing, than if they pay for them.

This argument would be just as good in favor of abolishing the right of property in the material products of men’s labor, as it is for abolishing it in intellectual ones. Take wheat, for example. If the right of property in wheat were abolished, the world would get the stock of wheat, that is now on hand, for nothing. But the next crop of wheat would be a small one; and people would then learn, that in the long run, the cheapest mode, and the only mode, of procuring a constant and ample supply of wheat, is to acknowledge that wheat is the property of the producers, and then to buy it of them by voluntary contract. Under the system of a right of property in wheat, there will be a perpetual supply of wheat; because men have a sufficient motive to produce it; and a man can always procure enough for his uses, by giving a reasonable proportion of the products of his own labor in exchange. But under the system of no right of property in wheat, he would be able to get wheat at no price whatever, after the present stock should be consumed; simply because men would have no sufficient motive to produce wheat, unless their right of property in it were acknowledged.

The principle is the same in regard to valuable ideas. We can get the free use of the present stock of ideas, by destroying the Edition: current; Page: [136] rights of the producers to their property in them. But if we do, the next crop of ideas will be a small one, as in the case of the wheat.

If we want no new ideas, but only wish to get the use of the present stock for nothing, without regard to justice, the true way undoubtedly is, to abolish all rights of property in them. But if we wish to induce men of inventive minds to go on producing new ideas, the true way certainly, if not the only way, is to respect their rights of property in those they have already produced.

But governments have the idea that intellectual men—especially authors and inventors—can be induced to work, if they can but be permitted to enjoy a partial or temporary property in the products of their labor; while it is conceded that all the rest of mankind should enjoy a full and perpetual property, in the products of theirs. But there are the same reasons of policy, for allowing men a perpetual property in their ideas, that there are for allowing them a perpetual property in the material products of their labor.

What are the great incentives to enterprise and industry in the production of material wealth? Plainly these—the thoughts that whatever a man acquires, will be his during life, or during pleasure, and that, at his death, whatever he leaves, will go to those whom he wishes to provide for. These are the all-powerful springs, and almost the only springs, that keep all physical industry in motion, and supply the world with wealth.

The policy of nature, for supplying mankind with subsistence, is, that each man shall labor, first and principally, for himself, and those most dear to him; and only secondarily and discretionally, for mankind in general; unless, indeed, his labors for mankind at large, can be made productive of support to himself, and those naturally dependent on him. In this way, each man laboring for, and supplying, those nearest to him, all are labored for, and supplied. This policy is dictated and impelled by the natural strength of the human affections, which are uncontrollable by Edition: current; Page: [137] human statutes; and no adverse policy, devised or dictated by lawgivers, such as that of requiring a man to work for mankind at large, instead of working for himself and his friends, can either stifle these natural motives, or supply others of any thing like equal power over the energies of men.

But how would these motives be weakened, and nearly deadened, by the knowledge that, at the end of a brief period, the products of a man’s labor would be taken from him, against his will, and given to men, whom he never knew, or knowing, does not love? And how would the general production of wealth be checked, and nearly paralyzed, by the establishment of such a principle, as a universal law? How many fruitful farms, for example, would ever have been reclaimed from their wilderness state, if those, who felled the trees, and subdued the soil, had known that, after a period of fourteen years, the fruits of their labors would be taken from them and their families, and be made the common property of the world? How many substantial, comfortable, and elegant dwellings would ever have been erected, if those, who built them, had known that, after occupying them, with their families, for fourteen years, they would be required to admit the world at large to an equal occupancy with themselves? The universal, and the universally known, nature of man answers these questions; and tells us that, with such a prospect before them, mankind, as a general rule, would labor only for the production of such things, as they and theirs could actually consume within the time they were allowed to possess them; that they would not labor for the benefit of robbers, intruders, or strangers; that they would therefore attempt none of those accumulations for the future, which each man and each generation of men now attempt, under the inducements furnished by the principle of perpetual property, in one’s self and his descendants.

The consequence, therefore, of such a principle would be universal poverty. Men would produce only as they consumed. And this state of poverty would continue so long as the right of individual and permanent property was denied. But let the right Edition: current; Page: [138] of individual and perpetual property, in the products of one’s labor, be acknowledged, and the whole face of things changes at once. Each man, secured in his right to what he produces, commences to accumulate for the benefit of himself, and those whom he desires to protect. He controls and enjoys his accumulations during life, and at death leaves an important portion of them to his children, to aid them in making still greater accumulations, which they, in turn, leave to their children. And this process continues, until the world arrives at that state of wealth, in which we now find it; the whole world enriched by the wealth of individual proprietors; instead of the whole world being impoverished, as in the other case, through the impoverishment of the individual producers of wealth.

Such being the law of man’s nature, imperatively controlling his motives and energies, there is no reason why the true policy indicated by it—that is, the policy of perpetual property—should not be applied as well to the producers of intellectual, as of material, wealth. There is no reason why the principle of individual and perpetual property, in ideas, will not prove as beneficient towards the whole human family, by stimulating the production of valuable ideas, as does the same principle when applied to corporeal things. Men produce valuable ideas just in proportion as they are furnished with the necessary facilities, and stimulated by adequate motives. This they do under the influence of the same law, which stimulates them to the production of material wealth. And the increase of intellectual wealth would be as much accelerated, by the adoption of the principle of perpetuity, in reference to intellectual property, as is the increase of material wealth, by the adoption of the same principle, in reference to material property. On the other hand, the production of intellectual wealth is as much checked, and discouraged, by the systematic plunder of the producers, as the production of material wealth would be, by the systematic plunder of its producers. The production of intellectual and of material wealth obeys the same laws in these particulars. And these laws are utterly Edition: current; Page: [139] irrevocable by human enactments. Government cannot compel the Arkwrights, and Fultons, and Morses to invent their great ideas, and give them to mankind. It can only induce and enable them to do it. And this the government must do, or mankind must lose the benefits of the ideas themselves.

Such, then, being the inevitable conditions, on which alone these valuable ideas can be obtained, the questions for society to settle are, simply, whether government shall encourage the production of these ideas, by protecting them as property to their producers? And whether, when the public want them, they shall be necessitated to buy them, and pay for them, as for other property? Or whether the production of them shall be discouraged and suppressed, by the systematic and legalized robbery of the producers?

At present, the United States, England, and some other nations say, by their laws, “we will give this property a partial protection—that is, the protection of civil, but not of criminal, laws; and even that protection it shall have only for a brief period; after which, it shall be a subject for free plunder by all.”

What effect this system has upon the production of valuable ideas, may be judged of, by the effect, which a similar system confessedly would have, upon the production of wealth, by the physical industry of men. If such a system would discourage all physical industry, it now discourages all intellectual effort, in a corresponding degree. And, consequently, we now have a correspondingly less number of valuable inventions, than we otherwise should have. Under a system of full protection—that is, the protection of both civil and criminal laws—and of perpetual property in the producers, we should doubtless have five, ten, twenty, or more times as many valuable inventions, as we now have. This may be safely predicated, both from the general principles governing the production of all valuable commodities, namely, that they are produced in quantities corresponding to the protection afforded them, and the prices paid for them; and also from an observation of the present condition of inventors generally, Edition: current; Page: [140] and of the difficulties they encounter in bringing out their ideas. What is that condition? And what are those difficulties? In the first place, the general condition, of both authors and inventors, is that of poverty. Doing incomparably more to enlighten and enrich mankind, than any other persons, they are probably, as a class, poorer than any other industrious class in the community. This is all owing, especially in the case of inventors, to the miserable protection afforded to their property, and the consequently small price they obtain for their labor. In the second place, the difficulties they experience in bringing out their ideas, arise solely from their poverty, and their inability to obtain the necessary capital with which to make their experiments, and upon which to live while making them. This inability to obtain capital, results wholly from the want of protection given to such property; whereby the value of each inventor’s prospective property, in his inventions, is rendered so precarious as to be a wholly inadequate security for investments. The natural risks of an inventor’s failure to make an invention, interpose such an obstacle to the procuring of capital, as can be overcome only by the prospect of large profits in case of success. But when this prospect of large profits, in case of success, is cut off by the inadequate protection afforded to the property to be produced, and the brief period for which even that protection is afforded, there is no adequate security left, as a basis for investments. And nearly all capitalists view the matter in this light. Inventors, therefore, as a general rule, are unable to procure capital. The consequence of this want of capital is the same, in the case of inventors, that it is in the case of any of the other industrial classes; for an inventor can no more produce ideas, without a money capital, than other men can produce houses, ships, or railroads, without a similar capital. The result is, that a large portion of the inventions, that otherwise would be made, are never brought out; and the world loses the benefit of them. The operation of these causes, in crippling the powers of inventors, is so general, so nearly universal, and so severe, as to have Edition: current; Page: [141] become a matter of the most public notoriety. Yet the true remedy, and what must, in the nature of things, be the only true and practicable remedy, is seldom proposed, and has never been adopted.

If the property of inventors were fully protected, and made perpetual, they would find no more difficulty in obtaining the capital necessary for their purposes, than other men do in finding it for theirs; because, although there may be more risk as to the success of a single experiment of theirs, than there is of the success of the ordinary operations of business, yet, in the long run, their labors would be much more lucrative, than the business of other men; and this prospect of superior profit, would enable them easily to command the necessary capital. Invention would become a regular business, a distinct profession, on the part of large numbers of men who have a talent for it, instead of being, as now, little more than the merely occasional occupation of here and there an individual. The number of inventors would thus, not only be greatly increased, but individual inventors would produce many more inventions than they now do. The number of persons, who have a natural capacity for invention, is probably as great as the number of those, who have a natural capacity for poetry, painting, sculpture, or oratory. And doubtless as many have been disabled and dissuaded, by want of means and inducements, from becoming inventors, as have been disabled and dissuaded, by the same causes, from becoming poets, painters, sculptors, or orators. But under a system of full protection, and perpetual property in their inventions, these naturally born inventors would nearly all devote themselves to invention, as their most congenial and lucrative pursuit. And the result doubtless would be, that we should have ten, twenty, and most probably fifty, or one hundred times as many, valuable inventions, as we now have.

Mankind do not perceive their true interests on this subject; and they are paying the penalty for their blindness, in the heavy toil, and the lack of wealth, which so large a portion of them Edition: current; Page: [142] endure. They have not yet fully learned that their brains, and not their hands, were designed for the performance of all heavy and rapid labor—that is, through the medium of labor-performing inventions. Yet such is the truth, as witness the water wheels, the steam engines, the electric telegraphs, the power looms, the spinning machines, the cotton gins, the carding machines, the sewing machines, the planing machines, the printing presses, the railroads, the vessels propelled by wind and steam, and the thousands of other inventions, (very many of which are so old, and in such common use, that we are apt to forget that they are inventions,) by means of which the power and speed of labor are so wonderfully, and almost miraculously, increased. Compare the speed, and the amount of the labor, performed by these instrumentalities, with the speed, and the amount of the labor, performed by men, without the use of these or other inventions; in other words, compare the labors of civilized men, accomplished through the instrumentality of labor-performing inventions, with the labor of savages, accomplished with the hands, unaided by such inventions; and we shall see at once the difference between men’s brains and their hands, as instruments of labor. If, now, the products of men’s brain labor, were as fully secured to the producers, as are the products of their hand labor, we should see such a development of brain labor, (in the shape of labor-performing inventions,) and of consequent wealth, as the wildest dreams of men have doubtless never conceived of.

Another consideration, that specially commends these inventions to the protection of the law, is, that the wealth, that results from them, cannot be monopolized by the owners of the inventions; but is generally distributed, with great impartiality, among all classes of society, from the richest to the poorest. How is this done? In this way. If the inventor becomes the manufacturer of the thing invented, he, like all other men, finds it for his interest to make quick sales, at small profits, rather than slow and small sales, at large profits; because he will thereby derive the greatest aggregate income from his invention. If, on the Edition: current; Page: [143] other hand, he chooses to license others to manufacture the thing he has invented, the same principle operates; and he finds it for his interest to license a large number of manufacturers, at low prices, rather than a small number, at high prices. He thereby insures such a competition between them, as will compel them to make quick and large sales, at small profits, rather than slow and small sales, at large profits.

If the thing invented be of much importance, and one for which there is a large demand in the community, the inventor generally finds it for his interest to license others to manufacture it, rather than become the manufacturer himself; because he thereby derives a greater profit from his invention, and also finds leisure and means for the more agreeable and lucrative employment of making still other inventions, the use of which he will sell or rent in like manner.

Thus, in all cases, the necessary operation of the laws of trade, or the principles of self-interest, on the part of the inventor, is to induce him, (either directly, as his own manufacturer, or indirectly, through those whom he licenses,) to insure a supply of the commodity to the whole community, at moderate prices. And this depression of prices is, in most cases, still further enforced by rival inventions, which accomplish the same results by different processes. In this way, the wealth produced by an invention, is spread abroad amongst the people at large, at such low rates of compensation, that the inventor secures but a very small portion of that wealth to himself, to wit: that portion only, which is paid him for the privilege of manufacturing and using the thing he has invented. And that portion, I presume, is certainly, on an average, not more than one per centum of the wealth actually created by his invention.*

Thus, in effect, an inventor really gives, outright to society, ninety-nine one-hundredths of all the wealth, which his invention produces. Yet society are so unwise, impolitic, ungenerous, and unjust, as to wish to deprive him even of the one per centum, which he wishes to retain, of the products of his labor. And after a period of fourteen years, they do deprive him of it.

Other producers, in their exchanges with their fellow men, give only dollar for dollar; and yet the government, by both civil and criminal laws, protects the products of their labor to them in perpetuity—that is, to them and their heirs and assigns forever. But inventors, who produce incomparably more than other men, and who, in their exchanges with their fellow men, are habitually accustomed to give one hundred for one, are systematically discouraged, disabled, and even deterred from producing inventions, by being denied all but an imperfect protection, and allowed even that only for a brief period; after which their property is made free plunder for all.

To ask if this be justice, would be an insult to the reason of all. The question now is, whether it be good policy for the public themselves, to discourage and suppress, by this systematic and wholesale robbery, those producers, who, if protected like other men, will give them an hundred for one? Whether the people at large can afford thus to impoverish themselves, by discouraging and suppressing the production of those inventions, which do nothing but enrich them? Can they afford to deprive themselves of the benefits of those inventions, which they otherwise might have, by refusing to inventors even one per centum of the wealth they produce? Can they, in other words, afford to lose the ninety-nine per centum themselves, to avoid paying the one per centum to the producers? These inventions cannot, and will not, be produced in adequate numbers, unless adequately paid for. That is a fixed principle in the natural law of production. How much clear gain, then, (for that is the true question to be solved by them,) will mankind realize, in the long run, from refusing to trade with, or encourage, a class of producers, who offer them, in Edition: current; Page: [145] exchange, a hundred for one? The world has long ago decided, that it is the wisest policy to protect the property of, and thereby encourage, those merely ordinary producers of material wealth, who, in their exchanges with their fellow men, demand dollar for dollar. Yet, strange to say, the world has not yet learned, that it is an unwise policy, to systematically plunder, and thereby systematically discourage, those extraordinary producers, (the inventors,) who, in their exchanges with their fellow men, ask but one dollar in exchange for a hundred! The fabled folly of starving the hen, that laid the golden eggs, is fully realized in the conduct of society in plundering and starving their inventors. These labor-saving and labor-performing inventions are the great fountains of wealth, without which mankind, (if the race could subsist at all,) would be only a few wretched savages, scarcely elevated, either in mental development, or physical comfort, above the condition of wild beasts. Yet they pretend to regard it as an act of both policy and justice, to outlaw, plunder, and treat as an enemy, every man who dares to open one of these fountains for their benefit—as if it were a moral duty, and would be a pecuniary profit, to deter and prevent him, and all others like him, from ever doing for them again a deed of such transcendent beneficence! To be consistent in this policy, they should make it a capital offence, for any man to supply the wants, relieve the toil, multiply the comforts, promote the health, prolong the life, enlighten the minds, or increase the happiness, of his fellow men.

The impolicy and inconsistency of governments, on this subject, are as palpable and enormous as their injustice. Take, for example, the governments of England and the United States. The so called statesmen of England have heretofore attempted to improve the agriculture of their country. And how did they proceed? Did they encourage chemists to prosecute their researches, and make experiments, to discover new processes or substances, by which the soil might be cheaply fertilized, and made more productive? Did they encourage ingenious men to invent new implements, by the use of which men and animals Edition: current; Page: [146] might perform more agricultural labor than they could before? Did they encourage either of these classes of inventors, by securing to them, by adequate laws, their just and perpetual property in their inventions? Such laws as would enable them to secure to themselves even one per centum of the wealth their inventions would create? No. They did nothing of this. On the contrary, they nearly outlawed their property, by giving it only the partial protection of civil laws, and that for a period of but fourteen years. This is all the encouragement they gave, to those extraordinary wealth producers, the inventors, who were willing and ready to give to the people of England an hundred pounds worth of agricultural products, in exchange for one pound in money. But, in place of thus giving any further or better encouragement to inventors, they proceeded to improve the agriculture of the nation, by laying duties of, say, fifty per centum, on an average, upon all breadstuffs imported from foreign countries; the effect of which was to enable the domestic agriculturalist to demand and obtain, of his fellow men, for all his agricultural productions, fifty per centum more than their just market value. In other words, the government virtually levied, upon the people at large, a tax equal to fifty per centum upon the true value of all the agricultural commodities produced and sold in the kingdom, and gave that enormous amount of money annually, as a gratuity, to those merely ordinary agriculturalists, whose industry was no more meritorious or productive, than the industry of those other people, who were thus taxed, or rather robbed, for their benefit. In still other words, the government, under pretence of promoting and improving the agriculture of the nation, virtually compelled the people at large to pay, to the merely ordinary agriculturalists of England, a pound and a half in money, for every pound’s worth of food produced and sold in the kingdom; while, at the same time, it discouraged, outlawed, plundered, and thus in a great measure drove out of market, those extraordinary agricultural producers, the chemists and inventors, who were anxious and ready to furnish food to the people of Edition: current; Page: [147] England, at the rate of a hundred pounds worth of food, in exchange for one pound in money.

It is quite easy to see how this system of wholesale robbery was adapted to fill the pockets of the merely ordinary agriculturalists, at the expense of men, whose industry was equally deserving and laborious with their own. But it is not so easy to see what extraordinary adaptation it had, to advance either the art, or the science, of agriculture itself. Yet this was the mode, in which the so called statesmen of England attempted to improve the agriculture of their country. And they persisted in the attempt until the fear of civil war compelled them to abandon the system. But there is still equal, and indeed vastly more, need of a civil war, (if the object cannot be otherwise attained,) to compel the government to protect the property of, and thereby encourage, those extraordinary agriculturalists, the inventors, (including chemists,) who virtually offer to feed the people of England for one per centum of the existing prices.*

The statesmen of the United States of America attempted to promote the manufacturing arts in their country, by a system of legislation, similar to that adopted in England for the promotion of agriculture. They, in a great measure, outlawed the property of, and thereby discouraged, those inventive men, who would have devised new processes in the mechanic arts, whereby great wealth could be produced by a small amount of human labor; and who, as a compensation for their inventions, would have demanded but one per centum of the wealth those inventions would create. Having done this, they levied such duties on imported manufactures, as would make it necessary for the people at large to purchase their manufactured commodities, of the domestic manufacturer, (a mere ordinary producer, whose industry was no more meritorious than that of other men generally,) at the rate of, Edition: current; Page: [148] say, fifty per centum above their true market value. In other words, they compelled the people of the country, to buy their manufactured commodities of the mere ordinary producers, and pay them one dollar and a half in money, for every dollar’s worth of goods; and at the same time outlawed, plundered, and thus discouraged, and in a great measure drove out of market, those extraordinary manufacturers, the inventors, who would have supplied the people with the same commodities, at the rate of one per centum on existing prices.* And they persisted in this policy until, as in England, the imminent danger of civil war compelled them, not to abandon the system, (for the system is not yet abandoned,) but to mitigate its severity. But a civil war is needed still more now, than then, (if the object cannot otherwise be secured,) to compel the government to protect the property of, and thereby encourage, those extraordinary manufacturers, the inventors, who in their exchanges with their fellow men, virtually give a hundred dollars worth of manufactured commodities, for one dollar in money.

The system of policy thus enforced upon the people, in England and the United States, is an example of that pretended wisdom, by which the affairs of nations are managed; and which, it is claimed, is far superior to the wisdom of justice! When will mankind learn—and compel their governments to conform to the knowledge—that justice is better policy than any scheme of robbery, that was ever devised? And that the true way of stimulating equally, justly, and to the utmost, both the physical and mental industry of all men, in the production of wealth, is simply to protect each and every man equally, in the exclusive and perpetual right to the products of his labor—whether those products be ideas, or material things?

If one tenth, (doubtless I might say one hundredth,) of those Edition: current; Page: [149] immense sums, which government has robbed from the people of England, and given, as a gratuity, to those ordinary agriculturalists, whose industry had no merit above that of other men, had been paid to chemists, who should have discovered new processes and substances for cheaply fertilizing the soil, and making it more productive; and to those mechanical inventors, who should have devised superior implements and instrumentalities for agricultural labor; who can rationally doubt, that the agriculture of England, both as a science and an art, would have been immeasurably in advance of what it is now? Or if one tenth, (I think I might say one hundredth,) of those many hundreds of millions of money, which in the United States, the government has plundered from the people, and given, as a gratuity, to those ordinary manufacturers, whose industry had no merit above that of other men, had been paid to those inventors, who should have devised new processes of manufacture, new machinery, new motive forces, and other instrumentalities for performing manufacturing labor, new articles to be manufactured, and new materials susceptible of manufacture; what rational man can doubt, that the manufacturing arts would, at this day, have been immeasurably in advance of what they now are?

But, with a considerable portion of mankind, robbery has been the favorite mode of acquiring wealth in all ages. All men desire exemption from severe toil; and the strong have usually sought to obtain it by robbing the weak. Thus strong nations have always been in the habit of making war upon weak nations, really from motives of plunder, though other motives may have been assigned. So also the rich and strong classes in a nation, have always been in the habit of combining, for the purpose of plundering the weaker classes of the same nation, by unequal and rapacious modes of taxation, and numerous other devices. In both cases the robbers seem not to have been aware, and probably have not been aware, that if all mankind were permitted to live in peace, and each individual to enjoy the fruits of his own labor, (including ideas, as well as material property,) the wealth of the Edition: current; Page: [150] world would increase at a rate that would enrich substantially all its inhabitants, incomparably faster even, than the strong can now enrich themselves, by the robbery of the weak. Take, for example, the cost, to the conquerors, of any war, ancient or modern, that has been carried on for purposes of plunder. Suppose one tenth of that cost, instead of being expended in war, had been paid to inventors; does any one doubt that, for that sum, inventions could have been produced, that would have added more to the wealth of the nation, than was gained by the conquest? And these inventions would not only have enriched the nation that produced them, but would have been also communicated to other nations. Thus many nations would have been enriched, at one tenth of the cost, at which one nation enriched itself, by the subjection and robbery of another.

At the present day, this policy of robbery is still predominant in the world; so much so, that nearly all the civilized nations of the world, keep immense armies, or navies, or both, for the double purpose of robbing other nations, and of protecting themselves against similar robbery. If one tithe of the money, that is annually paid for these purposes, by the several nations of Europe, were paid to inventors, these several nations might not only live in peace with each other, but each and all would very speedily attain to a wealth, greater than conquest ever aimed at, or conquerors ever conceived of.

To sustain the literal truth of this calculation, let us consider the wealth acquired by conquest, compared with that created by mechanical inventions. Of course, neither can be estimated with any thing like precision; but I apprehend it would be entirely within the limits of truth to say, that all the wars of Europe and America, in the last thousand years, have not brought as much net wealth to the conquerors, as has been created by the steam engine, and its subsidiary inventions, in the last ten, or even five, years. I apprehend also that all the British conquests in India, within the last hundred years, and all the oppressions practised, within that time, upon 100,000,000 of people, have not succeeded Edition: current; Page: [151] in extracting so much net wealth from that country, as has been created by the spindles and looms of England, in the last ten, or perhaps even five, years.

If these conjectures be true, or any thing like the truth, they ought to do something towards opening men’s eyes to the comparative policy of encouraging inventors, and supporting soldiers. And when it is considered that all these wars have been carried on, at the instigation and dictation of so called statesmen, we have an opportunity to judge, whether statesmen and soldiers, or inventors, are the real benefactors of mankind, and deserving of their support.

I imagine that few people stop to consider how large a proportion of the wealth, now existing in the world, is the product of labor-performing inventions. I recently saw it estimated, by a most respectable authority, that the steam engine had quadrupled the wealth of the United States. How near the truth this estimate may be, I do not venture to assert. But it is probably sufficiently near the truth for the purposes of this discussion. Now it is hardly fifty years, since the steam engine was brought to such perfection, and put into such extensive operation, in the United States, as to contribute very materially to the wealth of the country. Yet it is now said that it has quadrupled that wealth!

And how much have the people of this country ever paid to the inventors of the steam engine, in return for the immense wealth, which it has created? How much! It can hardly be said that they have paid any thing. If they have paid any thing, the amount has been so utterly contemptible, as that no one, who has any sense of shame, or any sentiment of justice, could hardly wish to see the amount put in print. But has such meanness and injustice been a wise policy for the people themselves? No. If they had paid to the inventors of the steam engine but one per centum annually of the wealth that invention was creating, they would thereby have given such a stimulus to invention, that we should doubtless, long before now, have had in Edition: current; Page: [152] use other motive forces far cheaper, safer, and better than steam. And what would have been good policy towards the inventors of the steam engine, would be good policy towards all other inventors. The amounts, that would be paid them, under a system of perpetual property, and full protection, would be, as we have before supposed, but one per centum of the wealth created by them. This one per centum is certainly but a trifle, a mere bagatelle, for the people to pay, out of the wealth created for them, and given to them, by the inventors. Yet this trifle, paid by the people, would be fortunes to those receiving it; and would give such encouragement to inventors generally, that inventions would be multiplied with a rapidity, of which we have now little conception. And the people would have the benefit of them. But so long as they refuse to pay even one per centum of the wealth produced, for the inventions they now have, it is reasonable to conclude they will have the benefit of but few new ones, compared with the number they otherwise might have.*

Let us now consider the reasons of policy, other than cheapness, against giving, to the property of inventors, that full and perpetual protection, which is given to the property of other men.

1. It is objected that the property of inventors ought not to have the protection of the criminal laws.

What foundation there is for this objection, I have never heard. And I apprehend that no reason whatever, worthy of a moment’s consideration, can be offered, why the property of inventors should Edition: current; Page: [154] not have the protection of these laws, as fully as any other property. The wilful invasion of another man’s property, from motives either of malice or gain, is a crime; and if crimes against property are to be punished at all, crimes against the property of inventors should be punished as well as others. What security would there be for material property, if the owner had no remedy for trespasses against it, except the privilege of bringing a civil suit for damages, at his own expense? Every one can see that, Edition: current; Page: [155] in that case, property would be overrun with trespassers, who were irresponsible in damages, and who would commit their trespasses with the intent of getting what they could by them, and consuming it, so as to have nothing left, with which to answer the judgments, that might be obtained against them. It would therefore be an utter farce to pretend to protect property at all, without the aid of criminal laws. It would be equivalent to granting a free license to all irresponsible trespassers. Men might as well surrender their property at once, as to think of protecting it by civil suits merely; for they would consume their property in expenses, and would get protection, only when they had no property left to be protected. Yet this is the kind of protection, and substantially all the protection, which our laws, as at present administered, give to the property of inventors. And the consequence generally is, that the expenditure of time and money, required to protect an inventor in his rights, is such as to impoverish him, and make it impossible for him to protect himself to any considerable degree, even during the brief period, for which the government professes to protect him.

Cannot the public see that such things are a discouragement to invention and inventors? And can they not see that, if they wish to encourage inventors, and have the benefit of their inventions, it is plainly for their interest to give, to the property of Edition: current; Page: [156] inventors, the same protection of the criminal laws, which is accorded to material property?

2. It is objected that inventions, if secured to their authors, become monopolies, and therefore ought not to be perpetual.

The answer to this objection is, that all property is a monopoly. The very foundation and principle of the right of property are, that each man has a right to monopolize what he produces, and what is his own. The right of all men to their property, rests on this foundation alone. Monopolies are unjust and impolitic, only when they give to one what belongs of right to others. And it is only to such monopolies that the word monopoly is usually applied. It is an abuse of the term to apply it to a man’s legitimate and rightful property. If an invention do not rightfully belong to him alone, who produced it, he of course should not be allowed to monopolize it. But if it do rightfully belong to him alone, then he has a right to monopolize it; and other men have no more right or reason to complain that he is allowed to monopolize it, than he has to complain that they are allowed to monopolize whatever is their own.

There is no more reason or justice, in applying the word monopoly, in an odious sense, to an invention, which one man has produced, and therefore rightfully owns, than there would be in applying the same term to any other wealth whatever, which one man has produced, and therefore rightfully owns. There is no resemblance at all between such monopolies, and those monopolies, which are arbitrarily created by legislatures; whereby they give to one man, or to a few men, an exclusive privilege to exercise a right, or practice an employment, which other men have naturally and justly the same right to exercise and practice. All such monopolies are plain violations of natural justice; because they take from one man a right that belongs to him, and give it to another. But an invention is the product of individual labor, and of right belongs to him who produces it; and therefore there is no injustice in saying that he alone shall have a right to it—the same right that he has to any other property lie has produced—that Edition: current; Page: [157] is, the right to exercise absolute dominion over it, and to do with it as he pleases, whether it be to keep it, sell it, or give it away.

This objection of monopoly, when applied to inventions, is mere sound without meaning. It has neither reason nor justice to sustain it. It is simply an odious name, wrongfully applied to a just and natural right, by those who want a pretext for taking a man’s property from him, and applying it to their own use.

3. A third objection is, that if inventors were allowed a perpetual property in their inventions, they would become too rich.

This objection, if good against any inventors, can be good only against a very few, in comparison with the whole number; for but a few, if any, could ever acquire inordinate wealth by their inventions. It is certainly unjust to deprive the whole of their rights, simply to guard against extravagant fortunes on the part of a few. But our laws make no distinctions of this kind. On the contrary, they condemn nearly all to indiscriminate poverty, under pretence of preventing any from accumulating immoderate wealth.

If any are to be deprived of their right to a perpetual property in their inventions, clearly it should be those few, and only those few, whose wealth would otherwise become enormous. And even those few, it would be unjust to deprive of their property, the products of their honest labor, until their fortunes had actually reached the utmost limit, to which society sees fit to allow private fortunes to go. To deprive them of their property, before their fortunes have attained the legal limit, simply through fear that they may sometime go beyond it, would be a very absurd and premature robbery.

But what right has society to set limits to the fortunes, that individuals shall acquire? Certainly it has no such right; and it attempts to exercise no such power, except in the case of inventors. To all other persons it says, go on accumulating to the extent of your ability, subject only to this restriction, that you use only honest means in acquiring. Why should any other Edition: current; Page: [158] restriction be imposed upon the accumulations of inventors, than is imposed upon the accumulations of other men? Who has such a right to be rich as an inventor? Who gives such wealth to mankind as he? Certainly, if a man, who not only produces wealth as honestly as any other man, but who produces incalculably more than other men, and who virtually gives ninety-nine per centum of it, as a gratuity, to the public, cannot be allowed to become rich, who are the men who are entitled to that privilege? Other men, who produce hardly any thing, compared with an inventor, and who, if they can avoid it, give never a dollar of their earnings to mankind, without receiving a full dollar in return, are nevertheless allowed to acquire their millions, and indeed to accumulate without restriction, so long as they accumulate honestly. But an inventor, who creates immeasurably more wealth than any other man, and who reserves but one per centum of it to himself, giving the rest to the public, must be limited by law in his acquisitions, and deprived even of that one per centum of his own earnings, lest he become too rich!

Every valuable invention ought to give certain wealth to the inventor; the more valuable the invention, the more wealth should it bring to him. The most valuable inventions, should bring great wealth to the inventors. It is not only just to the inventors, but it is for the interest of society at large, that it should be so; because the production of inventions is stimulated, substantially in the ratio of the wealth of the inventors.

But is there really any danger that, if inventors were allowed a perpetual property in their ideas, any very enormous or immoderate wealth would accumulate in their hands? There are many, and probably insuperable, obstacles to such a result. Let us look at the subject somewhat closely.

In the first place, wealth, in the aspect in which we are now, considering it, is relative. A man is rich, or poor, in proportion as he has more or less than an average share of the wealth of the world. A man, who, in England, would have been very rich, relatively with his neighbors, five hundred years ago, would now, Edition: current; Page: [159] with property of the same nominal value, as then, be very poor, relatively with his neighbors; because his neighbors have now increased so much in wealth. In judging, therefore, whether inventors would become immoderately rich, under a system of perpetual property in their inventions, we must consider what would be the general state of wealth around them, under the same system.

We are to consider, then, that under that system, (of perpetual property in inventions,) the number of inventions would be very greatly augmented, and consequently the general wealth of society astonishingly increased. And it would consequently require vastly more actual wealth, to make a man relatively rich, than it does now. This single consideration will probably be sufficient, with most minds, to reduce the bugbear of enormous wealth, (on the part of inventors,) to about half its original dimensions.

In the second place, few inventions are very long lived. By this I mean that few inventions are in practical use a very long time, before they are superseded by other inventions, that accomplish the same purposes better. A very large portion of inventions live but a few years, say, five, ten, or twenty years. I doubt if one invention in five, (of sufficient importance to be patented,) lives fifty years. And I think it doubtful if five in a hundred live a hundred years.*

Under a system of perpetuity in intellectual property, inventions would be still shorter lived than at present; because, owing to the activity given to men’s inventive faculties, one invention would be earlier superseded by another.

I think these considerations alone ought to diminish the bugbear again to one half its already reduced dimensions—that is, to one fourth its original size.

In the third place, the danger of overgrown fortunes is obviated by still another consideration, to wit, that few or no important Edition: current; Page: [160] inventions are brought to perfection by a single mind. One man brings out an invention in an imperfect state; another improves upon it; another improves upon the improvement, and so on, until the thing is perfected only by the labor of two, three, five, or ten different minds. The complete invention thus becomes the joint property of several different persons, who share in the income from it in such proportions respectively as they can agree upon. The obvious presumption is, that no single individual will ever derive a sufficient income from it, to give him a fortune immoderately, or grossly, disproportioned to the wealth of others.

I think it must be safe now to say, that the bugbear, that was at first so frightful, is no longer a thing to be seriously dreaded.

But a fourth consideration, which must absolutely annihilate the phantom, is this—that if any particular invention should be found to be a source of immoderate wealth to its possessors, that fact would be sufficient, of itself, to turn the minds of inventors, in the direction of that invention; and the result would soon be the production of one or more competing inventions, that would accomplish the same end by a different process; and either supersede the first invention altogether, or at least divide with it the profits of the business, to which it was applied.

I now take it for granted that the objection of inordinate wealth, on the part of inventors, has been fairly disposed of.

4. A fourth objection is, that if inventors were allowed a perpetual property in their inventions, their power would become dangerous to the liberties of the people at large.

This idea, although one that might naturally enough occur to an objector, will yet, on reflection, be seen to be wholly without foundation in reason. Political power depends principally upon the command of wealth; and therefore the considerations, that have just been stated, in answer to the objection of enormous wealth, on the part of inventors, are sufficient to show, that it would be the farthest thing from possibility, for an individual to Edition: current; Page: [161] monopolize enough of any one or more inventions, to give him any dangerous political power.

Another consideration, sufficient of itself to dissipate this danger, is, that the number of inventors would be great, and if any one of them should prove ambitious of a dangerous political supremacy, the power of the others would be sufficient to hold him in check.

Still another consideration is, that, in the nature of things, the people, who receive ninety-nine per centum of all the wealth created by inventions, can be in no danger from the power of inventors, who retain but one per centum of it. Every inventor, therefore, puts into the hands of the people, ninety-nine times more power than he retains in his own hands. How long a time would be requisite for him, to acquire absolute power over the people, by such a process?

A last reflection, worthy of notice, on this head, is, that inventors are not constitutionally ambitious of political power. Such a thing as a great inventor, ambitious of political power, was probably never known. Their ambition is of a far less depraved and vulgar kind. The triumphs, of which they are ambitious, are triumphs over nature, for the benefit of mankind; not over mankind, for the benefit of themselves.

Inventions, instead of tending to the enslavement of mankind, tend to their liberation, by putting wealth and power into the hands of all, and thus liberating each from his dependence upon others.

5. The fifth objection to the principle of perpetuity in intellectual property, is the objection of inconvenience.

It is no doubt an inconvenience, for a man to be under the necessity to buy an idea, when he wants it. But on the other hand, it is a great convenience to the producer of the idea, that he can command pay for it, from those who wish to use it. The inconvenience and the convenience to these parties respectively, are precisely the same, and no other, than they are to the buyer and seller of any other property. And the argument from Edition: current; Page: [162] inconvenience is just as strong, against allowing any right of property in material commodities, as it is against allowing any right of property in intellectual commodities.

But because a man has a natural right of property in every idea he originates, it is not therefore to be inferred, that every man would wish to retain his exclusive right to every idea, however unimportant, that he might originate, and demand pay of every one who wished to use it. It is only a few ideas, that have sufficient market value, to make it worth a man’s while to make them articles of merchandise. It is only a few ideas, that would find any purchasers, if a price were set on them by the owner. If a man were to set a price on merely trivial ideas, he would find no purchasers. The result would be, that a man would retain his exclusive property, only in those ideas, that would sell in the market for such prices, as would make it worth his while to sell them. And for such ideas men can as well afford to pay, as for material things of the same market value.

A few words as to the effects of the principle of perpetuity upon literature.

Literary labor is controlled by the same law as other intellectual labor—that is, the nature of the market determines, in a great measure, the character of the supply. If the law allow an author but a brief property in his works, literature will be mostly of a superficial, frivolous, and ephemeral character; such as ministers to the appetite of the hour, and finds a rapid, but temporary sale—as, for example, romances and other works, which naturally have a short life, and which it requires but little thought or labor to produce. The prevailing literature will be of this kind, for the reason that this is the only kind which can be afforded. If, on the other hand, a perpetual property be allowed, encouragement is given to the production of a widely different class of works, namely, those profound, scientific, and philosophical works, which are written, not merely for the present, but for the future; and which, instead of pandering to the frivolities, fancies, appetites, or errors of the hour, seek to supplant and correct Edition: current; Page: [163] them, by creating and supplying a demand for more valuable knowledge. These works find fewer readers at first, than the others; and the prospect of a more lasting demand for them, is the only chance their authors have of remuneration for the greater labor required for their production. Under the present system, few such works are produced at all; and those generally at great sacrifices to their authors. But if a perpetual property in them were allowed, men, competent to produce them, could afford to produce them; for the reason that their copyrights, if sold, would bring a higher present price, or, if retained, would be good estates for them to leave to their children.

These profound works, which it requires great powers, great patience, and great labor, to produce, are the only works that really do much for the progress of the race, or the advancement of knowledge among men. They are indispensable to the rapid intellectual growth of mankind. Yet, like other things, the products of human labor, they can, as a general rule, be had only for money. The greatest minds inhabit bodies, that must be fed and clothed, like the bodies of other men. The wisest men, too, as well as the less wise, have families whose wants must be supplied. If these wants cannot be supplied by authorship, there is no alternative for these men, but to engage in some of the ordinary avocations of society. The consequence is, that many of the greatest minds, those, who ought to do, and who, under the principle of perpetuity in intellectual property, would do, much for the permanent enlightenment, and the lasting intellectual advancement of mankind, are now, from necessity, occupied in pursuits, for which smaller minds are amply competent—such as the common routine of professional and political life—in which pursuits, they passively adopt, act upon, and thereby promulgate, at best, only such common knowledge, and with it such common ignorance, as the public demand calls for in those labors. This they do, simply because the laws deprive them of the natural and just rewards of those higher labors, for which their capacities and their aspirations naturally qualify them. And they consequently Edition: current; Page: [164] pass through the world, doing little or nothing for its permanent welfare; and really living upon, and assisting to perpetuate, the ignorance, follies, crimes, and sufferings of mankind, solely because the laws virtually forbid them to live by removing them.

It would be easy to follow out this idea, and show more in detail what effect the perpetuity of intellectual property would have upon the progress of knowledge; but the principle is so self-evident, that it can hardly need any further illustration.

No objection can be made to the perpetuity of literary property, on the ground that authors would become extravagantly rich. The great competition among themselves; the short life, which most works would have; and the slow sale of those having a longer life, would all conspire to make it impossible for authors to acquire great wealth. In this respect they would differ from inventors.

Enough has probably now been said, to show that authors will enlighten, and inventors enrich, mankind, if they can but be paid for it, and not otherwise.

Manifestly it cannot be for the interest of mankind, to starve and discourage authors and inventors, if science and art, like all other marketable commodities, are really produced just in proportion to the demand for them, and the prices they bear in the market. Mankind have abundant need of all the knowledge, and all the wealth, which authors and inventors can furnish them. And they can certainly afford to pay for them, at the low prices, at which knowledge is offered by authors, and wealth by inventors; for there are no other means by which such knowledge and such wealth can be obtained so cheaply. Why, then, do not mankind purchase and pay for them at these prices, instead of striving to live upon such a supply only, as they can obtain by niggardly purchases, and dishonest plunder? There is certainly as little sound economy, as sound morality, in the course they pursue on this subject. Why, then, do they continue in it? My own opinion is this.

It is not that mankind at large are so wilfully dishonest, as to Edition: current; Page: [165] wish to deprive authors and inventors, any more than other men, of the fruits of their labors. It is contrary to nature, that mankind at large should be, either so unjust, or so ungenerous, to their greatest benefactors. Neither is it because they are wilfully ignorant of their own true interests in the matter; for it is contrary to nature that any man, honest, or dishonest, should be wilfully ignorant of his own true interests. But it is because they are deceived, both as to their own interests, and as to the just rights of authors and inventors, by those who are interested to deceive them.

Who, then, are the parties, who are interested to deceive the people at large, as to the true interests of the latter, and as to the just rights of authors and inventors? There are at least three classes. First, the whole class of pirates, who have a direct and powerful pecuniary interest, in plundering authors and inventors; because they thereby put into their own pockets some portion, at least, of that wealth, which would otherwise go to the authors and inventors themselves. Secondly, men ambitious of the reputation and influence of wealth, who fear that their wealth may be eclipsed by the wealth of inventors. Thirdly, political men, ambitious of intellectual reputations, who fear that their own would be eclipsed, as they really would be, by the reputations of both authors and inventors. The services rendered to mankind by great authors, and great inventors, are so incomparably superior, in brilliancy, permanency, and value, to any that can be performed by political men, (with possibly here and there a rare exception,) that it is not to be expected that the latter, with whom ambition is a ruling passion, should look with favor on such rivals as the former.

There are, then, three classes of men, who have a special and selfish interest to decry the rights of authors and inventors; and to deceive the people at large in regard to them. And they do it by such bugbears and sophistry, as have been exposed in the preceding pages. The influence of the two latter classes is especially powerful; for they have a direct, and nearly absolute, control Edition: current; Page: [166] over legislation. And it is probably owing to the jealousy of these two classes, more than to all other causes, that the rights of authors and inventors have not been already acknowledged. The nobility of England, for example, whose wealth and power are hereditary, and founded on no personal merit or service, compose one branch of the legislative power of England, and have great influence in the election and control of the other; and they doubtless have sagacity enough to see, that the principle of perpetuity in intellectual property, would soon raise up a generation of authors and inventors, the latter of whom would rival them in wealth, and both of whom would wholly eclipse them in deeds commanding public admiration and gratitude; and both of whom also would contribute powerfully, and probably irresistibly, to prostrate their usurped and iniquitous political power. It is not therefore to be expected that the House of Lords, or those whom they can control in the House of Commons, will ever legislate for the principle of perpetuity in intellectual property. And the principle may perhaps triumph, in England, only on the ruins of existing political institutions. On the continent of Europe, there are obstacles to be overcome, in the jealousies of wealth, and of hereditary and tyrannical rulers, of a similar nature to those in England. In the United States, the obstacles are not so palpable, and probably not so great. But they are nevertheless such as are not to be despised. In all countries, they are doubtless such, as can be overcome, only by disseminating widely among the people the true principles of law, and the true principles of political economy, applicable to the question.

CHAPTER VI.: THE COMMON LAW OF ENGLAND RELATIVE TO INTELLECTUAL PROPERTY.