England's Alarm!/In a letter to his Lordship
TO THE
RIGHT HONOURABLE
EARL MANSFIELD.
- My Lord,
AN arbitrary Judge is more pernicious to the constitution of this country, than an arbitrary Sovereign. For our laws may be undermined, but can never be openly overturned. Almost every tyrant, that sat on the English throne has fallen by that very constitution he laboured to destroy. And it would greatly conduce to the preservation of our liberties, were the people as jealous of the proceedings of their Judges, as of the prerogatives of their Princes. It is not the throne alone, but the woolsack that we must watch. Our Monarchs direct the limbs, our Parliaments the head, but our Judges are entrusted with the heart itself of the Constitution, the Law. If a Judge, therefore, breathe poison, it corrupts the life's blood of the state, and mortifies the whole sacred system.
How narrowly then, ought Britons to scrutinize the conduct of their Judges. For they are but frail mortals, as the rest of mankind. When elevated and intoxicated with their juridical paraphernalia, they more often look forward to acquire wealth and power, than to preserve the rights of the people.
The legal power, my Lord, of an English Judge, is like that of an English King, very properly circumscribed. Tyrannic minds have always endeavoured to extend both. There is a propensity in mankind towards dominion, which, if not checked by jarring interests, would have, long ere this period, terminated in universal slavery and barbarity. When I see a Judge, therefore, supporting destructive precedents, in violation of the laws, in opposition to the genius of the Constitution, I cannot but think he is attempting to restore the state to its first principles of polity, when will was law, when force was equity, when slavery was freedom, and when rudeness was refinement.
Your Lordship has always shewn a fondness for curbing the power of juries in the case of a libel; and, imitating the conduct of some former Princes towards their Parliaments, you do not expound and advise, but command and overawe. When I have often beheld the dictatorial manner in which a Judge has treated juries, it reminded me of the first James, of pious memory, who used to tell his Parliaments they had no right to think, but to supply, and do as he directed. When that Monarch could not account for his right to reign arbitrarily by any record on earth, he piously pretended he had it from heaven.
Britain has as much danger to apprehend from judicial precedents, as from her Parliaments or her Princes: Perhaps more. A bad precedent once established, is even worse than a bad law. The latter may be repealed, while the former ought to be erazed. However the worthy may avoid following such precedents, they will ever be adopted by the unworthy, who will enlarge and refine upon them, by bringing every possible case within their meaning: For evil-minded Judges, my Lord, are as eager to fix precedents that shall sap the foundation of our liberty, as good ones are in correcting the erroneous practice of our Courts.
Early prejudices and arbitrary principles instilled into a youthful bosom, are very difficult to be eradicated. It is hardly in the power of education, travel, society, or even time, to expel that which is engendered in our very natures. Especially if that propensity flatters our pride, feeds our ambition, and raises our imagination to account even our blood as superior, and of a different quality from that of the common mass of mankind.
Those ideas may be laudable in a soldier, but are odious in a Judge. He cannot entertain too humble an opinion of his origin, to do justice to all, and undervalue none but those that encroach upon the rights and liberties of his fellow-subjects. For no man is proper to fit as an English Judge, my Lord, who does not value the rights and liberties of the meanest as intrinsically equal to that of the noblest. An upright Judge will never resemble a jockey, in estimating mankind, as horses, only by their blood. For it is one of the great marks of the goodness of Providence, not to permit rank, family, or fortune, to monopolize human talents. We often observe Lords with the narrow minds of plebeians, and plebeians possessed of virtues and genius that would throw a lustre on Princes.—Judges, therefore, in order to be just, must entertain an equal respect for the rights of all ranks of men; and the lowest peasant, even by birth, is entitled as much to the enjoyment of the laws, as the highest Peer.
These preliminaries being granted, my Lord, let us now come to the point in dispute. Ever since you ascended the bench, your Lordship has taken every opportunity in the case of libels, to limit the power of juries. Whether you have constantly attempted to conquer them by your eloquence, or command them by your austere mandatory opinions; acting more often as a Counsellor than as a Judge, Jurors, my Lord, being but plain men, need only to be directed, not to be driven, or bewildered in the labyrinth of law. They have generally a just sense of right and wrong; and the function of Judge was instituted to be their guide, not their governor. Your Lordship's office is somewhat similar to a Judge Advocate in military trials, and, like him, you ought to pay a proper respect to your jurors. For you are no more in fact, than a chief and perpetual president of every jury, always keeping strictly to the spirit where you cannot to the letter of the law, which it is your duty to explain. The Judge only should declare, and the jurors decide.
As the slavish doctrine, that jurors are only judges of the fact, is big with the utmost danger to the freedom of the whole British empire, it cannot be too generally execrated and exploded. The uncontrouled trial by jury being the cornerstone of the temple of Liberty, every one is personally interested in its preservation. It must therefore be strenuously supported, my Lord, on the most enlarged and found bails, in opposition to all sappings and underminings. But it needs only to be minutely examined, and properly valued, to rouze the nation to preserve it unimpaired, for the benefit of the present generation, and that we may transmit it to posterity uncontaminated and undiminished.
The trial by jury, your Lordship knows, is so antient a privilege belonging to mankind, that its origin cannot properly be traced. Neither is it the business of this letter. It is only requisite, in order to alarm the people to recapitulate the blessings derived from this mode of trial, which gives jurors a right to decide upon the law as well as the fact to point to the danger of its being destroyed, and to the fatal consequences of that destruction
Monarchs, my Lord, have hitherto generally treated their subjects as if they were only their slaves. They have deemed them as private property, like their goods and chattels. For how few were the Princes that ever properly valued the lives and the liberties of their people? Elected by their fellow-creatures as their chief magistrates, to guard their persons and property, they have often been the first; to destroy that which they were called to protect.—Civil wars were the result of such conduct. The people were compelled, in defence of their freedom, to attempt to resume that power which they had delegated to one of their number for their mutual protection. If they failed, they were enslaved. But if they prevailed, they either sacrificed the tyrant, and expelled his race, or assumed a share in the government themselves, to be a check on the Monarch, and reduce his power within the limits of certain laws of their own framing.
Thus were the Grecian and Roman Senates, the Jewish Sanhedrims, the German Diets, the French and English Parliaments, &c. first created. These institutions may be termed the truly Grand Juries of the human race. While they preserved their privileges, the people preserved their liberty; They investigated and regulated every momentous transaction with the utmost acuteness, ability, liberality, and patriotism. And the verdicts they gave were commonly the most proper, equitable, and unbiassed.
The British Parliament, my Lord, is the only remaining vestige in the world of those national juries, that now stands upon a stable and unweakened foundation. The jurors it contains are chosen by the people, to fit, hear, and redress every grievance, by their special and general verdict, which they deliver to the Sovereign Judge, for his final declaration. But does he ever question their right to deliver a general verdict in all cafes whatsoever? The Sovereign on the throne is in many respects similar to the Judge on the bench It is his business to declare the law, and he must leave his jurors to their free opinions. The only material difference between a Sovereign and a Judge is, that the one enforces the law, and the other explains it. But neither has any legal authority to deprive the people of their dearest rights. For the nation ought on no account to rely on the capricious, partial, or inscrutable arbitrium of any individual whatsoever.
Whether the trial by jury arose from the popular assemblies, or the assemblies from that mode of trial, is, my Lord, I believe not ascertained. Certain it is, that we can trace the trial by jury up to the Athenians. Every free citizen of Athens was a juror, if he pleased, for he had a right to sit as a Judge. Citizens, there, must have even sat at the Areopagus as jurors or judges, which terms are undoubtedly synonymous. For although it is said that Solon instituted only nine Archons as members of that Court, yet it is recorded that on the condemnation of Socrates, there were no less than a majority of 361 against: him in the Areopagus. From this great majority we may imagine, that those nine Archons were the Judges skilled in the laws, and explained it to their numerous fellow-citizens, who were convened to decide upon the law and the fact. This is a proof of the antiquity of juries. Now for the utility.
To establish this, my Lord, beyond doubt or cavil, let us hear what your late worthy and learned brother (Sir William Blackstone) mentions on this great and consequential point. I do not quote this found and skilled Lawyer for your information or satisfaction, but for that of the public. Treating of the utility of Juries, Sir William says, "The trial by jury, called also per pais, or by the country, hath been used time out of mind in this nation, and seems to be coeval with the first civil government thereof. Some authors have endeavoured to trace the original of juries up as high as the Britons themselves, the first inhabitants of our island. But certain it is, that they were in use among the earliest Saxon colonies, their institution being ascribed by Bishop Nicholson, to Woden himself, their legislator and captain. Hence it is, that we may find traces of juries in the laws of all those nations which adopted the feudal system, as in Germany, France, and Italy, who had all of them a tribunal composed of twelve good men, and true, "boni homines," usually the vassals or tenants of the Lord, being the equals or peers of the parties litigant; and as the Lord's vassals judged each other in the Lord's courts; so the King's vassals, or the Lords themselves, judged each other in the King's court. In England we find mention of them so early as the laws of King Ethelred, and that not as a new invention. This tribunal was universally established of old among all the northern nations; and so interwoven in their very constitution, that the earliest accounts of the one, give us also some traces of the other. Its establishment, however, and use in this island, of what date soever it be, though for a time greatly impaired and shaken by the introduction of the Norman trial by battel, was always so highly esteemed and valued by the people, that no conquest, no change of government could ever prevail to abolish it. In Magna Carta, it is more than once insisted on as the principal bulwark of British liberties; but especially by chap. 29, "That no freeman shall be hurt in either his person or property, nisi per legale judicium parium suorum vel per legem terræ;" a privilege which is couched in almost the same words with that of the Emperor Conrad, two hundred years before: "Nemo beneficium suum perdat, nisi secundum consuetudinem antecessorum nostrorum et per judicium parium suum." And it was ever esteemed in all countries a privilege of the highest and most beneficial nature. The more it is searched into and understood, the more it is sure to be valued: And this is a species of knowledge most absolutely necessary for every gentleman in the kingdom; as well because he may be frequently called upon to determine in this capacity the rights of others, his fellow-subjects, as because his own property, his liberty, and his life, depend upon maintaining, in its legal force, the constitutional trial by jury." Again, "The trial by jury has ever been, and I trust ever will be looked upon as the glory of the English law. As it has so great an advantage in regulating civil property, how much must that advantage be heightened, when it is applied to criminal cases! It is the most transcendent privilege which any subject can enjoy or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals. A Constitution that I may venture to affirm has, under providence, secured the just liberties of this nation for a long succession of ages, and therefore a celebrated French writer, who concludes, "that because Rome, Sparta, and Carthage have lost their liberties, therefore those in England in time must perish," should have recollected, that Rome, Sparta, and Carthage, at the time when their liberties were lost, were strangers to the trial by jury."
"It is a circumstance well worth an Englishman's observation, that in Sweden the trial by jury, that bulwark of northern liberty, which continued in its full vigour so lately as the middle of the last century, is now fallen into disuse; and that there, though the regal power is in no country so closely limited[1], yet the liberties of the Commons are extinguished, and the Government is degenerated into a mere Aristocracy. It is, therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity, and himself, to maintain, to the utmost of his power, this valuable Constitution in all its rights; to restore it to its ancient dignity, if at all impaired by the different value of property, or otherwise deviated from its first institution; to amend it, wherever it is defective; and above all, to guard with the most jealous circumspection against the introduction of new and ARBITRARY METHODS of TRIAL, which, under a variety of plausible pretences, may in time IMPERCEPTIBLY UNDERMINE this best preservative of English liberty.
"The liberties of England cannot but subsist, so long as this palladium remains sacred and inviolate; not only from all open attacks (which none will be so hardy as to make) but also from all secret machinations, which may sap and undermine it, by introducing new and arbitrary methods of trial;— by Justices of the Peace, Commissioners of Revenue, and Courts of Conscience. [Why did he not mention the Court of King's Bench?] These inroads upon this sacred bulwark of the nation, are fundamentally opposite to the spirit of our Constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern."
Those quotations, my Lord, will undoubtedly prove to the whole nation, the singular benefit which is derived from the trial by jury; and that our freedom will no longer exist, than the forms and spirit of this trial is preserved in its utmost purity[2].
The next thing to be enquired into, is the pretended right of a Judge, to decide arbitrarily upon the law, in cases of libel. First, let us hear what two great men say on this subject. Lord Somers, in treating of the power of juries, observes, that "the Judges are assistants to them in explaining the difficult points of the law, in which it is presumed they should be learned. The strength of every judgment consists in the verdict of these juries, which the Judges do not give, but pronounce or declare: And the same law that makes good a verdict given contrary to the advice or direction of the Judges, exposes them to the penalties, if, upon their own heads, or a command from the King, they should presume to give sentence without, or contrary to a verdict; and no pretensions to a power of interpreting the law can exempt them if they break it: Nay, even in special verdicts, the Judges are only assistants to the Juries, who find it specially, and the verdict is from them; though the Judges, having heard the point argued, declare the sense of the law thereupon."
Thus, that great Lawyer, Lord Somers, being most pointedly against the destructive doctrine of libels, I shall quote another paragraph from Judge Blackstone. "Such public or open verdict may be either general, guilty, or not guilty; or special, setting forth all the circumstances of the case, and praying the judgment of the court, whether, for instance, on the facts stated, it be for murder, manslaughter, or no crime at all. This is where they doubt the matter of law, and therefore chuse to leave it to the determination of the court, though they have an unquestionable right of determining upon all the circumstances, and finding a general verdict, if they think proper so as to hazard a breach of their oaths; and, if their verdict be notoriously wrong, they may be punished, and the verdict set aside by attaint, at the suit of the King, but not of the prisoner. But the practice heretofore in use of fining, imprisoning, or otherwise punishing jurors, merely at the discretion of the court, for finding their verdict contrary to the direction of the Judge, was arbitrary, unconstitutional, and illegal; and, is treated as such by Sir Thomas Smith, two hundred years ago, who "accounted such doings to be very violent, tyrannical, and contrary to the liberty and custom of the realm of England." For, as Sir Matthew Hale well observes, it would be a most unhappy case for the Judge himself, if the prisoner's fate depended upon his directions:—Unhappy also for the prisoner, for if the Judge's opinion must rule the verdict, the trial by jury would be useless.
In another place he says, "If judgments were to be the private opinions of the Judge, men would then be slaves to their magistrates."
Let me remind your Lordship, in addition to these authorities, of Junius's letter on this very great point. He says, "The doctrine constantly delivered in cases of libel, is another powerful evidence of a fettled plan to contract the legal power of juries, and to draw questions, inseparable from fact, within the arbitrium of the Court. Here, my Lord, you have fortune on your side. When a Judge invades the province of a jury, in matter of libel, he in effect attacks the liberty of the press. In some instances, he has succeeded, because jurymen are too often ignorant of their own rights, and too apt to be awed by the authority of a chief Justice. In other criminal prosecutions, the malice of the design is confessedly as much the subject of consideration to a jury, as the certainty of the fact. If a different doctrine prevail in the case of libels, why should it not extend to all criminal cases? Why not to capital offences? I see no reason, why the life of the subject should be better protected than his liberty or property. Why should a Judge enjoy the full power of pillory, fine and imprisonment, and not b indulged with hanging or transportation?"
"But, my Lord, (says Junius) since Judges have laboured, and not unsuccessfully, to destroy the substance of the trial, why should they suffer the form of the verdict to remain[3]? Why force twelve honest men, in palpable violation of their oaths, to pronounce their fellow-subject a guilty man, when, almost at the same moment, they are forbidden to enquire into the only circumstance which, in the eye of law and reason, constitutes guilt—the malignity or innocence of his intentions? But, if Judges could succeed in making the trial by jury useless and ridiculous, they might then with greater safety, introduce a bill into Parliament, for enlarging the jurisdiction of the Court, and extending the trial by interrogatories to every question, in which the life or liberty of an Englishman is concerned,"
All these quotations, my Lord, from great authorities, are most evidently against you. Sir William Blackstone, through the whole of his Commentaries, we see, dwells with rapture on the vast consequence attending the fair trial by jury. He speaks of it as the great bulwark of our liberties. He warns us to guard it against every encroachment and innovation. He affirms, that jurors have a right in all cases whatsoever, to decide upon the Law. He admonishes his fellow-subjects to preserve preserve it as the palladium of their freedom. He proves, that no country ever lost their liberties, while this mode of trial was universally adopted in its purity and plenitude of power.
Then where is your power, my Lord, of depriving the jury of their right to decide on the law in cases of libel? Perhaps you will say, "These are but opinions, and is not my opinion greater than those " Granted. Let us hear again, then, what Junius records of your Lordship's opinion on the power of juries deciding upon the law, in libels.—"If after all, that the jury would take upon themselves to determine the LAW, THEY MIGHT DO IT." Is not this opinion directly contradictory?
According to Magna Carta, judgments are to be passed by equals: And no man can be imprisoned, disseized of his freehold, deprived of his life or limb, unless by sentence of his Peers. What statute then, can you adduce in support of your opinion? None. Common law is likewise against you, unless we except that of the Star-chamber, and the attempts of one or two former arbitrary Judges, who wanted to wrest this right from the people.
The doctrine then being extra-judicial and illegal, let all Judges beware of the fate of Trefilian and others, who suffered for their extravagant opinions. The High Court of Parliament adjudged them to be executed as traitors against the Sovereign Majesty of the People, and they suffered accordingly.
The Judges of the land swear faithfully, you know, to serve the People as well as the King, and to do justice to every man, according to the law of the land; and in default thereof, they are to forfeit their bodies, lands, and goods, as in cases of treason.
English Judges are only living pandects, to be consulted and referred to by the jurors in cases of difficulty. But they are by no means empowered to interfere as the Peers of the culprit. The King might as well interfere in the debates of his Parliament; for either interference would be equally illegal. Consequently, if any Judge pretends to an exclusive right of deciding upon the law, and the intent of the culprit, is not this assuming the privilege of the peer or equal, contrary to the spirit of the Constitution?
A bad Judge, like a bad Prince, will imitate the arbitrary class of his predecessors. There is great art in undermining the trial in matters of libel. It at once strikes at the very root of our liberty : For upon the freedom of the press stands the privileges of England. If the Judges, therefore, be allowed, my Lord, to decide upon the law in libellous cases, it will prove to be in time as effectual an imprimatur as ever was in this country previous to the Revolution. Prevent only the people from communicating their free and unbiased sentiments in print to one another, and arbitrary Monarchy, Aristocracy, or Democracy, again rear their heads. The freedom of debate, and the liberty of speech, will soon follow. Juries will become the mere instruments of the Judges; and then, where is freedom?
Since every trivial sentence may be found a libel, if your opinion were adopted, it would be an action worthy to immortalize even all the individuals in both Houses of Parliament, to review, check, and ascertain by statute, the authority of the Judges in all possible constitutional cases whatsoever. Such an act would regulate and confirm the people in their undoubted, though disputed rights; and were even that to happen, it is a melancholy reflection, that an arbitrary Judge would have full sufficient power left in the dogmatical practice of his court, to exercise his tyranny on trivial occasions, owing to the perplexity of our common law; though but without being able materially to injure the liberties of the subject. For is it not the heighth of absurdity and injustice, that a Parliament shall enact laws, which neither the King nor the People dare break, but which a Judge may set aside, or act diametrically opposite to the spirit of the constitutional law with impunity?
Retract, therefore, my Lord, your opinion respecting the power of Judges in libellous cases. Even age can never look more amiable than in amending its errors. As it is almost the only speck that dims the lustre of your admired talents, wipe it off in time, my Lord, and you shall go down to the grave in all the dazzling splendor that shines upon superior talents, when possessed by a man so renowned for justice and integrity as you Lordship.
Agree on this subject with your learned and most worthy brother, Willes, and avoid the maxims of a ——; who, owing to his temerity and your Lordship's timidity, has made a far greater encroachment on the power of juries, than ever you have done. He is labouring, perhaps, to be appointed as your successor, my Lord; and his enterprising mind well merits it. His talents may be traced from D—— to Dean Shipley. If the laurel proved fatal to the Captain's neck, it then first flourished on the Judge's brow. And should you, therefore, not recede from your doctrine of libels, there is not a more able successor to be found even in the Inquisitorial Court of Portugal, than the undaunted ——.
But, my Lord, if you possess the ambition to have your name handed down to future ages as an Immaculate Judge, which except in this one instance you undoubtedly are, adopt the constitutional doctrine of your juvenile countryman, Mr. Erskine. If you do not, your precedent, it is to be hoped, will die with you ; and the people of England will impartially pay your country this just compliment ; that if their liberties were attempted to be overturned by one set of men, they were nobly and vigoroully supported by another.
- ↑ This was written previous to the late Revolution in Sweden, accomplished perhaps by the disuse of the trial by jury, which deprived the people of their consequence, their spirit, and their power, in the scale of the Constitution.
- ↑ But Sir William Blackstone explains all this on the subject of libels and informations ex officio, in contradiction, of himself.
- ↑ That amendment was left for Mr. Justice Buller to attempt, by altering the record of the heart.