Community Law Resource Group

SIR WILLIAM BLACKSTONE (1723 - 1780) 

“COMMENTARIES ON THE LAWS OF ENGLAND”:

BOOK I, CHAPTER I, PAGE 118:-

“the primary and principal objects of the law are RIGHTS, and WRONGS.”

(Where RIGHTS are “of persons” or “of things”. And WRONGS are “private wrongs” or “public wrongs”.)

“3. Private wrongs, or civil injuries; with the means of redressing them by law. 4. Public wrongs, or crimes and misdemeanors; with the means of prevention and punishments.”

BOOK I, CHAPTER I, PAGE 123:-

“FIRST, by the great charter of liberties, which was obtained, sword in hand, from king John; and afterwards, with some alteration, confirmed in parliament by King Henry the Third, his son. Which charter contained very few new grants; but, as Sir Edward Coke observes, was for the most part declaratory of the (PAGE 124) principal grounds of the fundamental laws of England. Afterwards by the statute called confirmatio cartarum, whereby the great charter is directed to be allowed as the common law; all judgments contrary to it are declared void; ……….. Then, after a long interval, by the petition of right; which was a parliamentary declaration of the liberties of the people, assented to by King Charles the first in the beginning of his reign. Which was closely followed by the still more ample concessions made by that unhappy prince to his parliament, before that fatal rapture between them; and by the many salutary laws, particularly the habeas corpus act, passed under Charles the Second. To these succeeded the bill of rights, or the declaration delivered by the lords and commons to the Prince and Princess of Orange 13 February 1688;..

(PAGE 125) 1. THE right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

(PAGE 130) 5. THE security of his reputation or good name from the arts of detraction and slander, are rights to which every man is entitled, by reason of natural justice; since without these it is impossible to have the perfect enjoyment of any advantage or right.

11.NEXT to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists of the power to loco-motion, of changing situation, or removing one’s person to whatever place one’s own inclination may direct; without imprisonment or retraint, unless by due course of law. Concerning which we may take the same observations as upon the preceding article; that it is a right strictly natural; that the laws of England have never abridged it without sufficient cause; and that in this kingdom it cannot ever be abridged at the mere discretion of the magistrate, without the explicit permission of the laws. Here again the language of the great charter is, that no freeman shall be taken or imprisoned, (PAGE 131) but by the lawful judgment of his equals, or by the law of the land. And many subsequent old statutes expressly direct, that no man shall be taken or imprisoned by suggestion or petition to the king, or his council, unless it be by legal indictment, or the process of common law. ……………OF great importance to the public is the preservation of this personal liberty; for if once it were left in th power of any, the highest magistrate to imprison arbitrarily whomever he or his officers thought proper, (as in France it is daily practiced by the crown) there would soon be an end of all rights and immunities………………To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross an act of despotism, as must at once (PAGE 132) convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to goal, where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”

BOOK III, CHAPTER 23, PAGE 349:-

“…the trial by jury; called also the trial per pais or by the country. A trial that hath been used time out of m ind in this nation, and seems to have been co-eval with the first civil government thereof…..(PAGE 350) .. the truth seems to be, that this tribunal was universally established among all the northern nations, and so interwoven in their very constitution,. It’s establishment however and use … 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 our liberties;……..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 (PAGE 351) 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 it’s legal force, the constitutional trial by jury.”

BOOK III, CHAPTER 23, PAGE 365:-

We may here again observe, and observing we cannot but admire, how scrupulously delicate and how impartially just the law of England approves itself, in the constitution and frame of a tribunal, this excellently contrived for the test and investigation of truth; which appears most remarkably, 1. In the avoiding of frauds and secret management, by electing the twelve jurors out of the whole panel by lot. 2. In it’s caution against all partiality and bias…… 

BOOK III, CHAPTER 23, PAGE 370:-

“…the jury from other circumstances will judge of their credibility (ie: of the witnesses’ credibility) …”

BOOK III, CHAPTER 23, PAGE 372:-

“THE oath administered to the witness is not only that what he deposes shall be true, but that he shall also depose the whole truth: so that he is not to conceal any part of what he knows, whether interrogated particularly to that point or not. And all this evidence is to be given in open court, in the presence of the parties, their attorneys, the counsel, and all by-standers: and before the judge and jury: each party having liberty to except to it’s competency, which exceptions are publicly stated, and by the judge openly and publicly allowed or disallowed, in the face of the country; which must curb any secret bias or partiality, that might arise in his own breast. And if, either in his directions or decisions, he mis-states the law by ignorance, inadvertence, or design, the counsel on either side may require him publicly to seal a bill of exceptions; stating the point wherein he is supposed to err: and this he is obliged to seal by statute Westm. 2. 13 Edw. 1. C. 31 or, if he refuses so to do, the party may have a compulsory writ against him, commanding him to seal it, if the fact alleged be truly stated: and if he returns, that the fact is untruly stated, when the case is otherwise, an action will lie against him for making a false return.”

BOOK III. CHAPTER 23, PAGE 374:-

“AS to such evidence as the jury may have in their own consciences, by their private knowledge of facts, it was an ancient doctrine, that this had as much right to sway their judgment as the written or parole evidence which is delivered in court. And therefore it hath been often held, that though no proofs be produced on either side, yet the jury might bring in a verdict. For the oath of the jurors, to find according to their evidence, was construed to be, to do it according to the best of their knowledge…….(PAGE 375) …..if a juror knows any thing of the matter in issue, he may be sworn as a witness, and give his evidence publicly in court………the judge in the presence of the parties, the counsel, and all others, sums up the whole to the jury…and giving his opinion in matters of laws arising upon that evidence.”

BOOK III, CHAPTER 23, PAGE 377:-

“… the only effectual and legal verdict is the public verdict; in which they openly declare to have found the issue for the plaintiff, or for the defendant; and if for the plaintiff, they assess the damages also sustained by the plaintiff, in consequence of the injury upon which the action is brought.”

BOOK III, CHAPTER 23, PAGE 378:- 

“…the jury may, if they think proper, take upon themselves to determine at their own hazard, the complicated question of fact and law; ….”

BOOK III, CHAPTER 23, PAGE 379:-

“UPON these accounts the trial by jury ever has been, and I trust ever will be, looked upon as the glory of the English law. And, if it has so great an advantage over others in regulating civil property, how much must that advantage be heightened, when it is applied to criminal cases! But this we must refer to the ensuing book of these commentaries: only observing for the present, that it is the most transcendent privilege which any subject can enjoy, or with 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 (Montesq. Sp.L.xi.6), who concludes, that because Rome, Sparta, and Carthage have lost their liberties, therefore those of England in time must perish, should have recollected that Rome, Sparta, and Carthage, were strangers to the trial by jury. 

GREAT as this eulogium may seem, it is no more than this admirable constitution, when traced to it’s principles, will be found in sober reason to deserve. The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But is that be entirely entrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest offices in the state, their decisions, in spight of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity: it is not to be expected from human nature, that the few should be always attentive to the interests and good of the many.”

BOOK III, CHAPTER 23, PAGE 380:-

“Here therefore a competent number of sensible and upright jurymen, chosen by lot from among those of the middle rank, will be found the best investigators of truth, and the surest guardians of public justice. For the most powerful individual in the state will be cautious of committing any flagrant invasion of another’s right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent men, not appointed till the hour of trial; and that, when once the fact is ascertained, the law must of course redress it. This therefore preserves in the hands of the people that share which they ought to have in the administration of public justice, and prevents the encroachments of the powerful and wealthy citizens. Every new tribunal, erected for the decision of facts, without the intervention of a jury, (whether composed of justices of the peace, commissioners of the revenue, judges of a court of conscience, or any other standing magistrates) is a step towards establishing aristocracy, the most oppressive of absolute governments………And in every (PAGE 381) country on the continent, as the trial by the peers has been gradually disused, so the nobles have increased in power, till the state has been torn to pieces by rival factions, and oligarchy in effect has been established, ……It is therefore, upon the whole, a duty which every man owes to his country, his friends, his prosterity, and himself, to maintain to the utmost of his power this valuable constitution in all it’s rights ”

BOOK IV, CHAPTER 10, PAGE 140:-

“21. THERE is yet another offence against public justice, which is a crime of deep malignity; and so much the deeper, as there are many opportunities of putting it in practice, and the power and wealth of the offenders may often deter the injured from a legal prosecution. This is the oppression and tyrannical partiality of judges, justices, and other magistrates, in the administration and under the colour of their office. However, when prosecuted, either by impeachment in parliament, or by information in the court of king’s bench, (according to the rank of the offenders) it is sure to be severely punished with the forfeiture of their offices, fines, imprisonment, or other discretionary censure, regulated by the nature and aggravations of the offence committed.” 

BOOK IV, CHAPTER 30, PAGE 383:-

“…if any judgment whatever be given by persons, who had no good commission to proceed against the person condemned, it is void;..(PAGE 384) ..it being a high misdemeanor in the judges so proceeding, …..(PAGE 386) But when judgment, pronounced upon conviction, is falsified or reversed, all former proceedings are absolutely set aside, and the party stands as if he had never been at all accused; restored in his credit, his capacity, his blood, and his estates; ……. But he still remains liable to another prosecution for the same offence: for, the first being erroneous, he never was in jeopardy thereby.”

ALEXANDER HAMILTON (1755 - 1804)

FEDERALIST PAPERS No. 83:

“A power to constitute courts is a power to prescribe the mode of trial; and consequently, if nothing was said in the Constitution on the subject of juries, the legislature would be at liberty either to adopt that institution or to let it alone. This discretion, in regard to criminal cause, is abridged by the express injunction of trial by jury in all such cases;…..The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarchy, than as a barrier to the tyranny of popular magistrates in a popular government…..Arbitrary impeachments, arbitrary methods of prosecuting pretended offenses, and arbitrary punishments upon arbitrary convictions, have ever appeared to me to be the great engines of judicial despotism; and these have all relation to criminal proceedings…..The strongest argument in its favour is, that it is security against corruption. As there is always more time and better opportunity to tamper with a standing body of magistrates than with a jury summoned for the occasion, … the trial by jury must still be a valuable check upon corruption. It greatly multiplies the impediments to its success. As matters now stand, it would be necessary to corrupt both court and jury; …..By increasing the obstacles to success, it discourages attempts to seduce the integrity of either….”

LYSANDER SPOONER (1808 - 1887)

AN ESSAY ON THE TRIAL BY JURY, 1852:-

THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS.

CHAPTER 1:-

“For more than six hundred years - that is, since Magna Carta, in 1215 - there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.

 Unless such be the right and duty of jurors, it is plain that, instead of juries being a “palladium of liberty” - a barrier against the tyranny and oppression of the government - they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.

(etc)

“The trial by jury”, then, is a “trial by the country” - that is, by the people - as distinguished from a trial by the government.

(etc)

………….How is it possible that juries can do anything to protect the liberties of the people against the government; if they are not allowed to determine what those liberties are?

(etc)

………..In short, if the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law.

 The jury are also to judge whether the laws are rightly expounded to them by the court.

(etc)

They must also judge whether there realyy be any such law,.. 

(etc)

The jury must also judge of the laws of evidence. If the government can dictate to the jury the laws of evidence, it can not only shut out any evidence it pleases, tending to vindicate the accused, but it can require that any evidence whatever, that it pleases to offer, be held as conclusive proof of ay offence whatever which the governemnt chooses to allege. 

It is manifest, therefore, that the jury must judge of and try the whole case, and every part and parcel of the case, free of any dictation or authority on the part of the government…………….By such trials the government will determine its own powers over the people, instead of the people’s determining their own liberties against the government; and it will be an entire delusion to talk, as for centuries we have done, of the trial by the jury, as a “palladium of liberty”, or as any protection to the people against the oppression and tyranny of the government.

The question, then, between trial by jury, as thus described, and trial by the government, is simply a question between liberty and despotism.

SECTION II:-

(etc) 

……….Those who are capable of tyranny, are capable of perjury to sustain it.

(etc)

The trial by jury is based upon a recognition of this principle, and therefore forbids the government to executed any of its laws, by punishing violators, in any case whatever, without first getting the consent of “the country”, or the people, through a jury. In this way, the people at all times, hold their liberties in their own hands, and never surrender them, even for a moment, into the hands of the government.

(etc)

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 as a jury to enforce them.

(etc) 

The legal effect of these constitutional recognitions of the right of individuals to defend their property, liberties, and lives, against the government, is to legalize resistance to all injustice and oppression, of every name and nature whatsoever, on the part of the government.

(etc)

The bounds set to the power of the government, by the trial by jury, as will hereafter be shown, are these - that the government shall never touch the property, person, or natural or civil rights of an individual, against his consent, (except for the purpose of bringing them before a jury for trial,) unless in pursuance and execution of a judgment, or decree, rendered by a jury in each individual case, upon such evidence, and such law, as are satisfactory to their own understandings and consciences, irrespective of all legislation of the government.

CHAPTER 10:-

MORAL CONSIDERATIONS FOR JURORS:

(etc)

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 wright the evidence is entitled to, whether an act were done with a criminal intent, and the right also to limit the sentence, free from 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 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.

(etc)

It is absurd, also, to say that jurors have no moral responsibility for any cruel and unusual 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 a sentence.

(etc)

The same principles apply to civil cases as 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 the verdict that can be rendered against a defendant, and any sentence that can be inflicted upon him, even if he be guilty.

(etc)

…….The only oath which it would seem that a man can rightfully take as a 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 variation, but this should be the substance. Such, we have seen, were the ancient common law oaths.”