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EVOLUTION OF THE FOURTEENTH AMENDMENT.
EVOLUTION OF THE FOURTEENTH AMENDMENT.
In passing upon this case, the court uses the expression that this, as has often been observed, is a government of law, and not a government of men.”
The result of the expansion of the rights of the citizen, under the decisions I have cited and numerous others relating to the same point supporting those which I have cited, has thrown open the doors of the United States Courts to citizens of the Union, whether living in different States or living in the same State. The questions raised under this Amendment are so numerous that it enables a citizen of Georgia, for instance, to bring a suit in the Federal Court against another citizen of Georgia, setting up rights which may be claimed to have been infringed upon, in violation of the provisions of the Fourteenth Amendment. The result has been an overloading of the Supreme Court of the United States, until the establishment of the Circuit Courts of Appeal, for the purpose of relieving, to some extent, the labors of the Supreme Court; and doubtless, before a great while, some other means will have to be arrived at to still further lessen the duties of that Court, which have been so largely increased, and principally by cases arising under the operation of the Fourteenth Amendment.
I used the word “Evolution" in the title of this paper because it seemed to me an eminently proper word to apply to an Amendment that was born of hate and a desire to humiliate and avowedly intended to reverse a decision of the highest court of the land defining citizenship.
All of the Southern States declined the Amendment except one. It came before them with all of the slime of dirty politics adhering to it, and to the Southern man it meant, with all of its platitudes, but one thing, elevation of the negro; and they rejected it; but under the construction gradually given it by the Supreme Court of the United States, it is hailed by the conservative element of the people of the United States as the New Magna Charta and a recent law writer terms it the Maxima Charta.
TRIAL BY JURY.
GEORGE F. GOBER,
Mr. President and Gentlemen of the Association:
I see from the programme that I am expected to deliver an address upon this occasion. Such is not my undertaking. I propose to offer you a medley taken from different sources for the purpose of showing the development of trial by jury. In doing this I shall use much that has been said by others for the reason that it has been well said and also read you the reports of a number of trials which are not now current but which are, as Judge Bleckley would say, some of the “monumental literature of the law.” These cases, if not new, throw a side-light upon my subject. These trials were had for the most part in the court of the King's Bench. As a matter of review I append the following from
FOSS' MEMORIES OF WESTMINSTER HALL, VOL. 1, PAGE 95.
The King's Bench is the Supreme Court of common law throughout the kingdom. It is the remnant of the Aula Regis, à court established by William the Conqueror, and which not only sat in his residence, whatever the part of the country to which he removed, but which was presided over by persons chosen from his household for the purpose. The King's Bench, though not held for nearly two centuries at any other place than Westminster and Guildhall, is, in consequence of the locomotive qualities of the institution which it succeeded, still capable of being removed, at the pleasure of the king, to any part of the country. In the year of the great plague in London, more than two centuries ago, the King's Bench was transferred to Oxford, where it sat for a considerable time. When Edward the First conquered Scotland, it followed him to that country, and actually sat at Roxburghe. When thus removed to any part of the kingdom, it at once absorbs or sets aside all previous commissions for holding assizes in the particular county in which it sits.
The King's Bench derives its name from the circumstance of the sovereign having been in former times, and being still assumed to be, in the habit of sitting in it along with the judges. Some historians tell us that Henry III. repeatedly sat in the King's Bench during the proceedings in important cases.
In 1784 William Erskine spoke upon the motion of the Dean of Asaph in the Court of the King's Bench. I take therefrom an extract upon the subject of trial by jury:
ERSKINE'S SPEECHES—VOL. I, PAGE 286.
It is not very usual in an English court of justice to be driven back to the earliest history and original elements of the Constitution, in order to establish the first principles which mark and distinguish English law; they are always assumed, and, like axioms in science, are made the foundations of reasoning without being proved. Of this sort our ancestors, for many centuries, must have conceived the right of an English jury to decide upon every question which the forms of the law submitted to their final decision; since, though they have immemorially exercised that supreme jurisdiction, we find no trace in any of the ancient books of its ever having been brought into question. It is but as yesterday, when compared with the age of the law itself, that judges, unwarranted by any former judgment of their predecessors, without any new commission from the crown, or enlarge
ment of judicial authority from the legislature, have sought to fasten a limitation upon the rights and privileges of jurors, totally unknown in ancient times, and palpably destructive of the very end and object of their institution. No fact is of more easy demonstration ; for the history and laws of a free country lie open, even to vulgar inspection.
During the whole Saxon era, and even long after the establishment of the Norman government, the whole administration of justice, criminal and civil, was in the hands of the people, without the control and intervention of any judicial authority, delegated to fixed magistrates by the crown. The tenants of every manor administered civil justice to one another in the court-baron of their lord; and their crimes were judged of in the leet, every suitor of the manor giving his voice as a juror, and the steward being only the register, and not the judge. On appeals from these domestic jurisdictions to the county court, or in suits and prosecutions originally commenced in either of them, the sheriff's authority extended no further than to summon the jurors, to compel their attendance, ministerially to regulate their proceedings, and to enforce their decisions; and even where he was especially empowered by the king's writ of justices to proceed in causes of superior value, no judicial authority was thereby conferred upon himself, but only a more enlarged jurisdiction on the jurors who were to try the cause mentioned in the writ.
This popular judicature was not confined to particular districts, or to inferior suits and misdemeanors, but pervaded the whole legal constitution: for when the Conqueror, to increase the influence of his crown, erected that great superintending court of justice in his own palace, to receive appeals, criminal and civil, from every court in the kingdom, and placed at the head of it the capitalis justiciarius totius Angliae, of whom original authority the chief justice of the King's Bench is but a partial and feeble emanation; even that great magistrate was in the aula regis merely ministerial; every one of the king's tenants, who owed him service in right of a barony, had a seat and a voice in that high tribunal; and the office of justiciar was but to record and to enforce their judgments.
In the reign of King Edward the First, when this great office was abolished, and the present courts at Westminster established by a distribution of its powers; the barons preserved that supreme superintending jurisdiction which never belonged to the justiciar, but to themselves only as the jurors in the king's court; a jurisdiction which, when nobility, from being territorial and feudal, became personal and honorary, was assumed and exercised by the peers of, England, who, without any delegation of judicial authority from the crown, form to this day the supreme and final court of English law, judging in the last resort for the whole kingdom, and sitting upon the lives of the peerage, in their ancient and genuine character, as the pares of one another.
But no evidence is to be found of the least relinquishment or abridgement of popular judicature in cases of crimes; on the contrary, every page of our history is filled with the struggles of Englishmen for its preservation.
No man in the least acquainted with the history of nations, or: of his own country, can refuse to acknowledge, that if the administration of criminal justice were left in the hands of the crown. or its deputies, no greater freedom could possibly exist than government might choose to tolerate from the convenience or policy of the day.
It presents the great change and development that has been: made in jury trial by a consideration of some of the old cases :
We have the following trial in 1602 when Elizabeth was, Queen:
CAMPBELL'S LIVES OF THE CHIEF JUSTICES, VOL. I, PAGE 226.
When Sir Christopher Blunt and several other commoners were tried for being concerned in the rebellion, Chief Justic Popham presided as Judge, and, at the same time, gave evidence as a witness, mixing the two characters in a manner that seems to us rather incongruous. He began with laying down the law :
Lord, C. J.—“Whenever the subject rebelleth or riseth in a forcible manner to overrule the royal will and power of the sovereign, the wisdom and foresight of the laws of this land makethi