Security of English-Mens Lives

CONSTITUTION   |   John SOMERS

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"A CLASSIC STATEMENT OF POLITICAL FREEDOM": A SEMINAL INFLUENCE ON AMERICA’S FOUNDING FATHERS AND THE FIFTH AMENDMENT TO THE CONSTITUTION, 1682 EDITION OF SECURITY OF ENGLISH-MENS LIVES… GRAND JURYS, THE DEFINING WORK OF SIR JOHN SOMERS, ISSUED PRIOR TO LOCKE'S SECOND TREATISE

(CONSTITUTION) (SOMERS, John). The Security of English-Mens Lives, Or the Trust, Power, and Duty of the Grand Jurys of England. London: Printed for Benj. Alsop, 1682. Small octavo (4 by 6-1/2 inches), period-style full brown calf; pp. (1-2), 3-168. $3400.

1682 edition of Somers' profoundly influential work on the power of the grand jury, the second of only two 17th-century editions issued the year after the first—"one of the fundamental foundations of the common law in the American colonies"—prompting revolution with Somers' invoking the grand jury and its protection of secrecy as key in opposing "corrupt Ministers of State" and those who "abuse or oppress the People… in the form and course of Justice," seminal in the creation of the Constitution's Fifth Amendment, with Jefferson calling grand juries "the true tribunal of the people," handsomely bound.

British statesman Baron John Somers' most famous and influential work is Grand Jurys. "Of the legal scholars writing about the grand jury in the late 17th century, Somers is not only representative, but eminent, having been read in both England and the colonies" (Kadish, Behind the Locked Door, 5-10). Grand Jurys is considered a seminal influence on Locke and America's Founding Fathers, and it is "likely that Locke knew Somers by the early 1680s… The opposition of absolute monarchy to the security provided by 'impartial law' was structurally central to Locke's Second Treatise (1689), which attacked the threat to life, liberty and property posed by a loss of 'impartial justice'… Locke's arguments are a logical extension of the arguments that juries provided the only security of life" (Marshall, John Locke, 52). To Somers, similarly, the grand jury offers "security" from the "Ill Designs of corrupt Minsters of State" and those who "dare to abuse or oppress the People."

Somers' Grand Jurys is "a classic statement of political freedom. He works his way through a number of themes that will be frequently repeated by others." Chief among these is his argument that "the independent grand jury is the linchpin of the entire criminal justice system. It brings offenders to justice and protects the innocent from false accusation, guaranteeing the traditional rights of Englishmen, particularly their political rights in relation to the Crown… [and] joins Parliament as a counterweight to the arbitrary power of the monarch and his judges" (Shapiro, Beyond Reasonable Doubt, 67). With its origins found deep within English legal history, the grand jury was "eulogized by Coke and Blackstone… [and] crossed the Atlantic as one of the fundamental foundations of the common law in the American colonies" (Roots, If It's Not a Runaway). "Indeed, there is an important sense in which the jury issue united not only America's revolutionary period and Founding era, but also the 'settlement' years immediately following 1789" (Stimson, Juries and American Revolutionary Jurisprudence, 34-5).

As American "opposition to the British became more overt, grand juries became more sympathetic to the colonists… the famous case of John Peter Zenger is a prime example… [as] two separate N.Y. grand juries refused to indict him for criminal libel. Further, in 1765, a Boston grand jury refused to find an indictment against the leaders of the Stamp Act Riots" (Paule, Perversion of the Historic Function, 304). "Perhaps the best known case of grand jury independence involved the twice-unsuccessful efforts to indict former Vice President Aaron Burr for attempting to involve the U.S. in a war with Spain… Burr was finally indicted when a grand jury was convened in Virginia, the stronghold of Burr's enemy, Thomas Jefferson. Despite Jefferson's best efforts, Burr was acquitted at trial, in part because the judge gave such a narrow jury instruction and made evidentiary rulings so favorable to the defense that conviction was nearly impossible. The trial judge was John Marshall, one of Jefferson's rivals" (Leopold, Why Grand Juries, 286).

"The framers of the Constitution perceived the function of the grand jury as so essential to liberty that they specifically provided for it" in the Fifth Amendment (Paule, 305). "With its Grand Jury Clause insuring that '[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury'… the Clause protected the people against arbitrary and overzealous government by protecting 'against hasty, malicious and oppressive prosecution.' Secrecy in grand jury proceedings played a role in that protection." For Somers, in particular, the secrecy requirement was absolute. In Grand Jurys, he describes "how grand jurors were sworn not to disclose the subjects of the inquiry, the witnesses, or any of the evidence. In addition, grand jurors were sworn not to reveal their own personal knowledge, the knowledge of their fellow jurors, their investigative plans, or their deliberations… according to Somers… secrecy made possible the discovery of truth and protected individuals from malicious or hateful prosecution. In sum, neither the king, the general public, nor the individual accused could benefit by making public the proceedings of a grand jury. The Grand Jury Clause of the Fifth Amendment made grand jury secrecy an implicit part of American criminal procedure" (Kadish, 5-16). "In a petition to the General Assembly of the Commonwealth of Virginia, Jefferson once termed the Anglo-Saxon tradition of trial by grand and petit jury 'the true tribunal of the people'" (Shannon, Grand Jury, 141). Jefferson owned and held two other works by Somers in his library. Preceded only by the 1681 first edition. Anonymously issued with Wing identifying Somers as author. Precedes the 1773 American edition. Pages 156-167 containing Latin and English text printed on opposite pages; final text page with "Finis." ESTC R10363. Wing S4643. Sweet & Maxwell I:378 (34). See Sowerby 2015, 2712.

Text fresh with faint dampstaining to rear leaves. A scarce near-fine copy.

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