general in England from the earliest times. Henry VIII even, in 1514, manumits two villeins, using the words of the Declaration of Independence, "Whereas God created all men free." The Statute of Westminster I, 1275, again refers to the writ de odio et atia, and the Statute of Edward III, 1354, in quoting Cap. 39 of Magna Carta, also says that "no man of what estate or condition that he be shall be imprisoned nor disinherited, nor put to death without being brought in answer by due process of law," expressing for the first time that there must not only be lawful trial, but that the person accused must be present; and chapter 9 of the same Statute forbids the sheriffs by virtue of commissions and general writs to take inquest to cause to indict the people at their will, — expressly, therefore, providing for indictments. "By 1485," says Hallam, "the right not to be imprisoned without warrant" was established; and in 1617 we find the last legislation concerning villeinage. During these centuries, however, there had been a persistent effort by all the kings to avoid the writ of habeas corpus, to arrest people without warrant or indictment, detain them without cause or trial, try them without a jury, or punish them by martial law. Finally, in the petition of Right (clause 5) the Parliament complains of this and that when they were brought up on habeas corpus they were still detained, without cause certified, by the king's special command; and in clause 10 they pray that no free man in such any manner be imprisoned or detained. Fourteen years later the Massachusetts Body of Liberties (Preamble) defines the denial of liberty to be the ruin of the Commonwealth, and first definitely adds to the principles above stated, that no person can be deprived of liberty or property or reputation unless by some express law of the country, i. e., a general law warranting the same, established by a legislature, and sufficiently published; and (clause 18) "No man's person shall be restrained or imprisoned by any authority whatsoever, before the law hath sentenced him thereto, if he can put in sufficient security, bail, or mainprise for his appearance, and good behavior in the mean time, unless it be in crimes capital, and contempts in open court, and in such cases where some express act of court doth allow it." This was enacted nearly forty years before the Habeas Corpus Act, in 1679, first cured the defect in the writ by providing against delay and for bail, and extending the number of judges who are required to grant the writ; and still later the English Bill of Rights, prohibiting excessive bail, and a statute providing that it should apply as well to commitment upon civil as criminal cases; which is followed generally in American constitutions.1 The Massachusetts Body of Liberties (clause 17) provides for liberty to remove from the Commonwealth, and (clause 91) that there shall never be any bond slavery, villeinage, or captivity, unless lawful captives or such strangers as willingly sell themselves. Massachusetts, however, departed from this principle later, and a few slaves existed as late as the Revolution, when the Massachusetts: Constitution in its Bill of Rights, Article 1, put an end to it by declaring that all men are born free and have inalienable right to liberty; so, the Declaration of Independence, clause 2, and the Virginia Bill of Rights (§ 1), but this was believed not to apply to negroes. The objection to information or proceedings other than indictment is also foreshadowed in Magna Carta, Cap. 38, that no one shall be put to his law, that is, trial, by ordeal or otherwise, upon the bare saying of a bailiff (prosecuting officer), without credible witnesses to prove it, and by 1354 indictments are expressly required. The modern law of the English Constitution on this point is first fully expressed in the Virginia Bill of Rights, clause 8, that "in all . . . criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor and to a speedy trial by an impartial jury of his vicinage without whose unanimous consent he cannot be found guilty," anticipating exactly the words of Hallam above quoted as early established in England. Whatever may be the meaning of due process of law, there is no doubt that the words "judgment by his peers," in the great clause in Magna Carta, means trial by jury, or what then corresponded to it; and the reading of the clause developed with the growth of the institution to make our modern understanding that it must be a unanimous verdict of twelve who are not witnesses of the crime accused.3 The Statute of Wales (1284) already provides a complete code of procedure with jury trial; but the system of punishing juries for a wrong verdict by attaint existed until 1670, and only at that time See Book III, 1 Va. B. Rts. 9; U. S. C. Amt. VIII. English Constitution. See Book III, § 122. 2 This right is not expressed in the § 135, note 6. See § 131, note 4. was finally established their right to be judge of all the facts, a right extended in many of our State Constitutions to the law as well as to the facts, conjoined with a prohibition to judges to charge the jury on the facts or even to state them.1 The Virginia Bill of Rights requires a jury in criminal cases, and holds it preferable to any other mode of trial in civil suits; the Declaration of Independence complains of the deprivation of trial by jury. There has been no further development of the principle except in the direction of allowing verdicts by a smaller number than twelve, or, in civil cases, not unanimous.2 3 4 The provision against excessive bail, as has been said, dates only from the Bill of Rights. That against cruel or unusual punishments as well as excessive fines goes even back to Magna Carta, Cap. 20, providing that a free man shall only be fined for a small offence after the manner of the offence, for a great crime, according to the heinousness of it, saving to him his contenement; that is to say, his necessary tools of trade. The former provision is found in all our State Constitutions as well as the Federal; and the latter in many, and probably always by statute if not at the common law. Banishment was early held an unusual punishment, and there was probably never any legal torture in England, though once or twice the rack was introduced. The Massachusetts Body of Liberties, however (clause 43), says that no man shall be beaten with above forty stripes nor shall any true gentleman nor any man equal to a gentleman be punished with whipping, etc.; and clause 45, “no man shall be forced by torture to confess any crime . . . unless in some capital cases where he is first fully convicted, after which if the cause be of that nature that it is very apparent there be other conspirators or confederates with him, then he may be tortured, yet not with such tortures as be barbarous or inhuman "; and in clause 46, the usual constitutional provision is anticipated for bodily punishments, "we allow amongst us none that are inhuman, barbarous or cruel," thus anticipating the provision of the Bill of Rights, clause 10, that excessive bail ought not to be required nor excessive fines imposed, nor cruel and unusual punishments inflicted, copied in the Virginia Bill of Rights, § 9; in the Federal Constitution, both as to the States and the nation; and in all the State Constitutions.5 1 See § 675. 2 See Book III, §§ 72, 132. Ibid., § 140. Ibid., $$ 81, 331. The only exception to this common-law right to personal liberty and court trial (except that exercised under chancery jurisdiction discussed in Chapter IV) is the practice of finding a man guilty of a criminal offence, usually, but not necessarily, treason, by a bill of attainder; that is, a legislative act of the Houses of Parliament declaring the person guilty without trial and even in his absence. This practice was freely employed by the Tudors and Stuarts especially under Henry VIII.' It has never been declared unconstitutional in England, though the abuse was so well known to our ancestors that they expressly put it in the Federal Constitution as applied to the nation and to the States as well. This has been followed in nearly all the State Constitutions.3 Some of the State Constitutions forbid imprisonment for debt in civil cases, a principle first embodied in the Massachusetts Bcdy of Liberties, clause 33, providing that no man should be imprisoned for debt if the law could find competent means of satisfaction otherwise from his estate. The Body of Liberties also anticipates the modern right to counsel (clause 26), which, as a constitutional right, does not yet exist in England, and (clause 47) requires two witnesses in capital cases. Finally, the right not to be placed twice in jeopardy goes back also for its first clear expression to the Massachusetts Body of Liberties, which gave many principles both to later English constitutional documents and to the Federal and State Bills of Rights. Clause 42 reads: "No man shall be twice sentenced by civil justice for one and the same crime, offence, or trespass.' "The Habeas Corpus Act forty years later provided that no person once delivered by habeas corpus should be recommitted for the same offence. And while the Fifth Amendment to the Federal Constitution only provides that no person shall be subject for the same offence to be twice in jeopardy of life or limb, thereby limiting the principle to capital cases, many of the State Constitutions extend it to any criminal. prosecution for which the punishment may be imprisonment.5 1 See § 138, note 10. 2 Art. I, § 9, (3); Art. I, § 10 (1). See Book III, § 138. 4 See § 134, note 17. See Book III, § 137, notes. CHAPTER IV CHANCERY AND THE INJUNCTION ORDER THE common law sounds in damages. In early times it was enforced, civil and criminal, only by a money penalty; or by personal redress or vengeance. Thus, the earliest codes or statutes merely fix a scale of penalties. The notion of compelling a freeman to do something or to abstain from doing something was foreign to AngloSaxon ideas of liberty. Like the doctrine of free will carried to its extreme, a freeman was lord of his own acts; only liable for the consequences of the same, to the person injured; later only to the Crown if a criminal act, and to the individual injured if a private wrong. Even when the judgment of the court went against him, the defendant was never compelled to do a thing, or even, in ordinary cases, to make restitution, as in the Oriental system of rendering justice. This principle must never be lost sight of, for it explains many things both in local history and in popular prejudice. Probably the power of the chancellor to issue injunction writs went as far towards prejudicing our ancestors against the courts of chancery and Star Chamber (which was merely its criminal side) as the absence of the jury and the local county court. Repeated attempts to limit or do away with this jurisdiction are found in the Statutes of the Realm, and the general prejudice against Chancery courts came to our ancestors by direct inheritance. As is known, some States, notably Massachusetts, for some time withheld chancery jurisdiction entirely, and when adopted it was in a limited and tentative way. On the other hand Congress, for the Federal courts, adopted the full English practice in the first judiciary act;1 Art. III, § 2 of the Constitution expressly provides that the Federal judicial power shall extend to all cases, in law and equity. 1 Act of Sept. 20, 1789 c. 20 § 11. By Rule XXXIII of the first (1822) Rules of Practice, equity practice is regulated by that of the High Court of Chancery in England; and so to-day, where applicable, by its "present" practice. |