Besides these courts already mentioned, there are many other judicatories, which, by particular acts of parliament, have particular matters entrusted to their determination, without the intervention of juries; as the several matters determinable summarily by one or more justices of the peace; the affairs of the revenue by the commissioners; and suits by civil bills for limited sums by judges of assize; though in these last the presiding judge may, and ought, in matters of difficulty, to call a jury to his assistance; and it must be owned in this poor country the alteration of the law in this last particular, has been attended with very good consequences. The expediency of the two former changes, indeed, has been much disputed; but that being a question of politicks, not of law, I shall not enter into it.
Thus much I have observed, in a summary way, concerning the several methods of trial, differing from that per pares, which are authorised by these words of Magna Charta, per legem terræ.
I shall next proceed to the point of the personal liberty of the subject; but as it will be proper to take all that together, in one view, I shall here conclude the present Lecture.
LECTURE XLI.
Continuation of the commentary on Magna Charta.
Having explained the import of the words per legale judicium parium suorum, vel per legem terræ, which refer to, and qualify all the preceeding parts, it will be proper to mention those preceeding articles, and to make some observations upon them. They then consist of six different heads. The first relates to the personal liberty of the subject; the second to the preservation of his landed property; the third is intended to defend him from unjust outlawry; the fourth to prevent unjust banishment; the fifth prohibits all manner of destruction; and the design of the sixth is to regulate criminal prosecutions at the suit of the king. I shall briefly treat of all these particulars in the order in which they stand.
The first clause tending to secure personal liberty, runs in these words; Nullus liber homo capiatur vel imprisonetur. Liber homo, as I before observed, here extends to all the subjects, and is not to be taken in its more restrained sense, of a freeholder. We see the words are not barely against wrongful imprisonment, but extend to arresting, or taking, nullus capiatur. This act extends not only to prevent private persons, particularly the great men, from arresting and imprisoning the subjects, but extends also to those from whom, on account of their extraordinary power, the greatest danger might be apprehended, I mean the king’s ministerial officers, his council, nay himself, acting in person. “No man,” (says my Lord Coke, commenting on this point,) “shall be taken, that is restrained of liberty, by petition or suggestion to the king, or his council; unless it be by indictment, or presentment of good and lawful men, where such deeds be done.” For in that case it is per legale judicium parium; though an indictment found, or a presentment made by a grand jury, in one sense, cannot properly be called judicium, as it is not conclusive; but the fact must be after tried by a petty jury; yet for the purpose of restraining and securing a person accused upon record, that he may be forthcoming on his trial, it is judicium parium. Otherwise the most flagrant offenders might escape being tried and convicted[404].
In the fifteenth chapter of Westminster the first, enacted in the third year of Edward the First, and ordained to ascertain for what offences a man might be detained in prison, and to make effectual provision for the bailing out persons upon their giving security to abide a trial, those accused of the slighter offences, persons detained per maundement de roy by the command of the king, are mentioned as not bailable; and this may seem to contradict the law I have now laid down. Yet, when rightly understood, it doth not. For as judge Gascoigne rightly said, the king hath committed all his power judicial to divers courts, some to one, some to another; and it is a rule in the construction of statutes, that when any judicial act is referred to the king, it is to be understood to be done in some court of justice, according to law. The command of the king, therefore, doth not mean the king’s private will, but a legal command, issued in his name, by his judges, to whom his judicial power is intrusted. Accordingly, Sir John Markham, chief justice, told Edward the Fourth, that the king could not arrest any man for suspicion of treason, or felony, as any of his subjects might; and he gave a most excellent reason for it: Because, says he, if the king did wrong, the party could not have his action. In the sixteenth of Henry the Sixth, it was resolved by the whole court, That if the king command me to arrest a man, and I do arrest him, he shall have his action of false imprisonment against me, although I did it in the king’s presence.
The maxim, then, is, that no man shall be taken and committed to prison, but by judicium parium, vel per legem terræ, that is, by due process of law. Now to understand this, it is necessary to see in what cases a man may be taken before presentment or indictment by a jury; and in the enquiry it is to be considered, that process of law, for this purpose, is two-fold, either by the king’s writ, to bring him into a court of justice, to answer, or by what is called a warrant in law. And this is, again, two-fold, indeed, by the authority of a legal magistrate, as a Justice of Peace’s mittimus, or that which each private person is invested with, and may exercise.