All evidence was required to be given at the bar of the court, so that the Judges might be enabled to exclude improper testimony.

From this change flowed two important consequences: (1) From the exercise of control on the part of the Judges sprang up the whole systems of rules as to evidence. (2) The practice of receiving evidence openly at the bar of the Court produced a great extension of the duty of an advocate. Henceforward "witnesses were examined and cross-examined in open court; the floodgates of forensic eloquence were opened, and full scope given to the advocate to exercise his ingenuity and power of persuasion on the jurors, to whose discretion the power of judging on matters of fact were now intrusted."

In the treatise of Chief Justice Fortescue, "De Laudibus Legum Angliæ," written soon after the year 1450, we have clear evidence that the mode of procedure before juries by vivâ voce evidence was the same as at present.

But Juries were still for a long time entitled to rely on their own knowledge in addition to the evidence. In the first year of Queen Anne, the Court of Queen's Bench decided that if a Jury gave a verdict of their own knowledge, they ought so to inform the Court, that they might be sworn as witnesses. This, and a subsequent case in the reign of George I., at length put an end to all remains of the ancient functions of Juries as Recognitors.

In the same way the ancient rule requiring jurors to be returned from the vicinage or hundred, which arose when jurymen were themselves the witnesses, was, after various modifications, abolished in all Civil actions in the reign of George II., and it was directed that juries should be summoned from the body of the county.

T. P. TASWELL-LANGMEAD, English Constitutional History. 136-141.

HANNIS TAYLOR (1889)

No attempt to outline the form which the English constitutional system assumed during the fourteenth and fifteenth centuries should fail to embrace some allusion to the accounts given of that system by Sir John Fortescue, the great Lancastrian lawyer, who attended Queen Margaret in her exile

on the Continent, where he seems to have undertaken, for a time at least, the political education of the heir-apparent. From the De Laudibus Legum Angliae, which was designed to instruct the prince how he should rule over the English; from the De Dominio Regali et Politico, a Treatise on Absolute and Limited Monarchy, and in particular on the Monarchy of England; and from the De Natura Legis Naturae, it is possible to draw something like a definite idea of the extent to which the English kingship had become limited towards the end of the fifteenth century by the growth of the parliament on the one hand, and by growth of the system of legal administration on the other. Under the influence of medieval political ideas, the writer divides all governments into three classes; the first of which he describes as regal government (dominium regale), the second as political government (dominium politicum), and the third as government of a mixed nature, regal and political (dominium regale et politicum). To the third class England belongs.

In England the king "cannot by himself or his ministers lay taxes, subsidies, or any imposition of what kind soever, upon the subject; he cannot alter the laws, or make new ones, without the express consent of the whole kingdom in parliament assembled." Sir John, who had been chief justice of the king's bench, while explaining how the liberties of the nation as a whole were protected by the parliamentary system, did not forget to point out how the life, liberty, and property of the individual subject were guarded by the system of legal administration. In the account given of the provisions made for the local administration of justice, a careful statement is contained of the procedure in jury trials both in civil and criminal cases. In a civil case the issue is tried by an impartial jury taken from the neighbourhood; in a capital case the jury is not only selected impartially from the neighbourhood, but the defendant is given a large number of chailenges, for which he need assign no cause or reason. "In a prose

cution carried on in this manner there is nothing cruel, nothing inhuman; an innocent person cannot suffer in life or limb; he has no reason to dread the prejudice or calumny of his enemies; he will not, can not, be put to the rack to gratify

their will and pleasure. In such a constitution, under such laws, every man may live safely and securely."

Thus by the middle of the fifteenth century the personal and political rights of the English people, which had long before been defined in statutes and charters, were permanently and practically guaranteed to the nation as a whole by the parliamentary system on the one hand and to the individual subject by the jury system on the other.

HANNIS TAYLOR, Origin and Growth of the English Constitution. I. 560-562.

STEVENS (1894)

And later on, jurors without information were separated from those possessing it, the former becoming judges of evidence only, and the latter witnesses; a decision being given by the former upon the testimony of the latter, and the law in the case being decided by the presiding official in the king's name. By 1450 we have distinct evidence that the mode of procedure was the same as that in modern use, though in occasional instances the ancient functions of jurors lingered as late as to the accession of the House of Hanover.

C. E. STEVENS, Sources of the Constitution of the United States. 237.

5

CHAPTER VI

PETITION OF RIGHT (1628)

SUGGESTIONS

THIS document Petition of Right — was the result of the struggle between King Charles I. and the members of Parliament. A Committee of Grievances, members of the third Parliament (March to June, 1828), met together to consider what steps should be taken to restore ancient laws and liberties. For two months the attention of both Houses, either in conference or in separate debate, was almost exclusively devoted to this important subject.

The King attempted to satisfy the House of Commons by a simple confirmation of Magna Charta, but Sir Edward Coke warned the House to proceed by Bill. In fact the far-famed Petition may be said to have thriven under the especial tutelage of Sir Edward Coke: the part assigned to him was the application of reasons for the laws and precedents which had been quoted in favour of the contentions of Parliament. When Charles I. suggested confirming Magna Charta without additions, paragraphs, or explanations, Coke said "Let us put up a Petition of Right: not that I distrust the King, but that I cannot take his trust but in a parliamentary way."

The Petition of Right was then drawn up by the Commons. After much discussion on the part of both the House of Lords and the House of Commons the petition was passed without any material alteration. On the 2nd of June, 1628, the King attended in the House of Lords to give his answer to the Bill. To the great surprise of Peers and Commoners, the King returned a long and equivocal answer, amounting almost to a refusal to pass the Bill. The Commons gave vent to their ill-humour by impeaching Dr. Mainwaring, one of the Royal Councillors, and were proceeding to censure the favourite, Buckingham, when, on June 7th, the King signed the great contract in the usual form.

This great constitutional compact between the Crown and the People demands peculiar investigation. The documents earlier cited have had no masterful personality standing behind them. The history of this document is closely connected with the heroes of the Puritan era, and the personal preferences and legal theories of Pym,

Hampden, Sir John Eliot, and Sir Edward Coke are expressed in almost every word in the petition. The close connection between the British subject at home and in the colonies, even at this early period in colonial history, should be taken into consideration. The dominant spirit of "redress," as emphatically expressed in 1628, was the cornerstone of all later petitions addressed to royal authority. For Outlines and Material, see Appendix A.

DOCUMENT

Petition of Right (June 7, 1628)

The Petition exhibited to his Majesty by the Lords The Statutes Spiritual and Temporal, and Commons, in this of the Realm, v. 23-24, present Parliament assembled, concerning divers translated Rights and Liberties of the Subjects, with the by William King's Majesty's royal answer thereunto in full Select Char

Parliament.

Stubbs,

ters, 505-507. Famous

Third Parlia

tory statute"

The so-called

TO THE KING'S MOST EXCELLENT MAJESTY, Humbly show unto our Sovereign Lord the King, ment, when the Lords Spiritual and Temporal, and Commons in Charles I. is Parliament assembled, that whereas it is declared forced to sign the and enacted by a statute made in the time of the "Petition of reign of King Edward I., commonly called Statutum Right.” de Tallagio non concedendo, that no tallage or aid “Declarashall be laid or levied by the king or his heirs in declaring this realm, without the good will and assent of the former acts archbishops, bishops, earls, barons, knights, bur- illegal. gesses, and other the freemen of the commonalty of statute" this realm; and by authority of parliament holden has been in the five-and-twentieth year of the reign of King compendium Edward III., it is declared and enacted, that from of Confirmathenceforth no person shall be compelled to make tio Chartaany loans to the king against his will, because such loans were against reason and the franchise of the land; and by other laws of this realm it is provided, that none should be charged by any charge or imposition, called a benevolence, nor by such like charge; by which the statutes before mentioned, and other the good laws and statutes of this realm, your subjects have inherited this freedom, that they should

termed a

rum.