An Essay On The Trial By Jury, Lysander Spooner [ebook reader browser .txt] 📗

York,  (19 Wendell,  6T6; 4 Hill,  146.)

The Fifth Amendment To The Constitution Of The United states Seems

To Have Been Framed on The Same Idea,  Inasmuch As It Provides That

"No Person Shall Be Deprived of Life,  Liberty,  Or Property,  Without

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 36

Due Process Of Law." [28]

 

Whether The Word Vel Should Be Rendered by Or,  Or By And.

 

Having thus Given The Meanings,  Or Rather The Applications,  Which

The Words Vel Per Legem Terrae Will Reasonably,  And Perhaps Must

Necessarily,  Bear,  It Is Proper To Suggest,  That It Has Been Supposed

By Some That The Word Vel,  Instead Of Being rendered by Or,  As It

Usually Is,  Ought To Be Rendered by And,  Inasmuch As The Word Vel

Is Often Used for Et,  And The Whole Phrase Nisi Per Judicium Parian

Suorun,  Vel Per Legem Terrae,  (Which Would Then Read,  Unless By The

Sentence Of His Peers,  And The Law Of The Land,) Would Convey A

More Intelligible And Harmonious Meaning than It Otherwise Does.

 

Blackstone Suggests That This May Be The True Reading. (Charters,  P.

41.) Also Mr. Hallam,  Who Says:"Nisi Per Legale Judicium Parium

Suorum,  Vel Per Legem Terra;. Several Explanations Have Been

Offered of The Alternative Clause; Which Some Have Referred to

Judgment By Default,  Or Demurrer; Others To The Process Of

Attachment For Contempt. Certainly There Are Many Legal

Procedures Besides Trial By Jury,  Through Which A Party'S Goods Or

Person May Be Taken. But One May Doubt Whether These Were In

Contemplation Of The Framers Of Magna Carta. In an Entry Of The

Charter Of 1217 By A Contemporary Hand,  Preserved in the

Town-Clerk'S Office In london,  Called liber Custumarum Et

Regum Antiquarum,  A Various Reading,  Et Per Legem Terrae,  Occurs.

Blackstone'S Charters,  P. 42 (41.) And The Word Vel Is So Frequently

Used for Et,  That I Amnot Wholly Free From A Suspicion That It  Was

So Intended in this Place. The Meaning will Be,  That No Person Shall

Be Disseized,  &C;.,  Except Upon A Lawful Cause Of Action,  Found By

The Verdict Of A Jury. This Really Seems As Good As Any Of The

Disjunctive Interpretatios; But I Do Not  Offer It With Much

Confidence."   2 Hallam'S Middle Ages,    Ch. 8,  Part 2,  P. 449,

Note."  [29]

 

The Idea That The Word Vel,   Should Be Rendered by And,  Is

Corroborated,  If Not Absolutely Confirmed,  By The Following passage

In Blackstone,  Which Has Before Been Cited. Speaking of The Trial

By Jury,  As Established by Magna Carta,  He Calls It,  "A Privilege

Which Is Couched in almost The Same Words With That Of The

Emperor Conrad Two Hundred years Before: 'Nemo Beneficium

Suum Perdat,  Nisi Secundum Consuetudinem Antecessorum

Nostrorum,  Et,   Judicium Parium Suorum. ' (No One Shall Lose His

Estate Unless According to The Custom Of Our Ancestors,  And,   The

Judgment Of His Peers.)   3 Blackstone,  350., 

 

If The Word Vel,   Be Rendered by And,,   (As I Think It Must Be,  At Least

In Some Cases,) This Chapter Of Magna Carta Will Then Read That No

Freeman Shall Be Arrested or Punished,  "Unless According to The

Sentence Of His Peers,  And,   The Law Of The Land."

 

The Difference Between This Reading and The Other Is Important. In

The One Case,  There Would Be,  At First View,  Some Color Of Ground

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 37

For Saying that A Man Might Be Punished in either Of Two Ways,  Viz.,

According to The Sentence Of His Peers,  Or According to The Law Of

The Land. In the Other Case,  It Requires Both The Sentence Of His Peers

And,   The Law Of The Laud (Common Law) To Authorize His

Punishment.

 

If This Latter Reading be Adopted,  The Provision Would Seem To

Exclude All Trials Except Trial By Jury,  And All Causes Of Action

Except Those Of The Common Law., 

 

But I Apprehend The Word Vel,   Must Be Rendered both By And,,   And

By Or;,   That In cases Of A Judgment,,   It Should Be Rendered by And,, 

So As To Require The Concurrence Both Of "The Judgment Of The Peers

And,   The Law Of The Land," To Authorize The King to Make Execution

Upon A Party'S Goods Or Person; But That In cases Of Arrest And

Imprisonment,  Simply For The Purpose Of Bringing a Man To Trial,

Vel,   Should Be Rendered by Or,  ,  Because There Can Have Been No

Judgment Of A Jury In such A Case,  And "The Law Of The Land" Must

Therefore Necessarily Be The Only Guide To,  And Restraint Upn,  The

King. If This Guide And Restraint Were Taken Away,  The King would

Be Invested with An Arbitrary And Most Dangerous Power In.

Making arrests,  And Confining in prison,  Under Pretence Of An

Intention To Bring to Trial.

 

Having thus Examined the Language Of This Chapter Of Magna Cart,

So Far As It Relates To Criminal Cases,  Its Legal Import May Be Stated

As Follows,  Viz.:

 

No Freeman Shall Be Arrested,  Or Imprisoned,  Or Deprived of His

Freehold,  Or His Liberties,  Or Free Customs,  Or Be Outlawed,  Or

Exiled,  Or In any Manner Destroyed,  (Harmed,) Nor Will We (The

King) Proceed. Against Him,  Nor Send Any One Against Him,  By Force

Or Arms,  Unless According to (That Is,  In execution. Of) The Sentence

Of His Peers,  And (Or Or,  As The Case May Require) The Common Law

Of England,  (As It Was At The Time Of Magna Carta,  In 1215.)

 

[1] Hume,  Appendix 2, 

 

[2] Crabbe'S History Of The English Law,  236.

 

[3] Coke Says,  "The King of England Is Armed with Divers Councils,

One Whereof Is Called commune Concilium,  (The Common Council,)

And That Is The Court Of Parliament And So It Is Legally Called in

Writs And Judicial Proceedings Comanche Concilium Regni

Anglicae,  (The Common Council Of The Kingdom Of England.) And

Another Is Called magnum Concilium,  (Great Council;) This Is

Sometimes Applied to The Upper House Of Parliament,  And

Sometimes,  Out Of Parliament Time,  To The Peers Of The Realm,  Lords

Of Parliament,  Who Are Called magnum Concilium Regis,  (The Great

Council Of The King;) [4] Thirdly,  (As Every Man Knoweth,) The King

Hath A Privy Council For Matters Of State. * * The Fourth Council Of

The King are His Judges For Law Matters." 1 Coke'S Institutes,  110 A.

 

[4] The Great Charter Of Henry Iii.,  (1216 And 1225,) Confirmed by

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 38

Edward I.,  (1297,) Makes No Provision Whatever For,  Or Mention

Of,  A Parliament,  Unless The Provision,  (Ch. 37,) That "Escuage,  (A

Military Contribution,) From Henceforth Shall Be Taken Like As It Was

Wont To Be In the Time Of King henry Our Grandfather," Mean That A

Parliament Shall Be Summoned for That Purpose.

 

[5]The Magna Carta Of John,  (Ch. 17 And 18,) Defines Those Who

Were Entitled to Be Summoned to Parliament,  To Wit,  "The

Archbishops,  Bishops,  Abbots,  Earls,  And Great Barons Of The

Realm,  * * And All Others Who Hold Of Us In chief." Those Who Held

Land Of The King in chief Included none Below The Rank Of Knights.

 

[6] The Parliaments Of That Time Were,  Doubtless,  Such As Carlyle

Describes Them,  When He Says,  "The Parliament Was At First A Most

Simple Assemblage,  Quite Cognate To The Situation; That Red

William,  Or Whoever Had Taken On Him The Terrible Task Of Being

King of England,  Was Wont To Invite,  Oftenest About Christmas

Time,  His Subordinate Kinglets,  Barons As He Called them,  To Give

Him The Pleasure Of Their Company For A Week Or Two; There,  In

Earnest Conference All Morning,  In freer Talk Over Christmas Cheer

All Evening,  In some Big Royal Hall Of Westminster,  Winchester,  Or

Wherever It Might Be,  With Log Fires,  Huge Rounds Of Roast And

Boiled,  Not Lacking malmsey And Other Generous Liquor,  They Took

Counsel Concerning the Arduous Matters Of The Kingdom."

 

[7] Hume,  Appendix 2.

 

[8] This Point Will Be More Fully Established hereafter.

 

[9] It Is Plain That The King and All His Partisans Looked upon The

Charter As Utterly Prostrating the King'S Legislative Supremacy

Before The Discretion Of Juries. When The Schedule Of Liberties

Demanded by The Barons Was Shown To Him,  (Of Which The Trial By

Jury Was The Most Important,  Because It Was The Only One That

Protected all The Rest,) "The King,  Falling into A Violent Passion,

Asked,  Why The Barons Did Not With These Exactions Demand His

Kingdom? * * And With A Solemn Oath Protested,  That He Would

Never Grant Such Liberties As Would Make Himself A Slave." * * But

Afterwards,  "Seeing himself Deserted,  And Fearing they Would Seize

His Castles,  He Sent The Earl Of Pembroke And Other Faithful

Messengers To Them,  To Let Them Know He Would Grant Them The

Laws And Liberties They Desired." * * But After The Charter Had Been

Granted,  "The King'S Mercenary Soldiers,  Desiring war More Than

Peace,  Were By Their Leaders Continually Whispering in his Ears,  That

He Was Now No Longer King,  But The Scorn Of Other Princes; And That

It Was More Eligible To Be No King,  Than Such A One As He." * * He

Applied to The Pope,  That He Might By His Apostolic Authority Make

Void What The Barons Had Done.* * At Rome He Met With What

Success He Could Desire,  Where All The Transactions With The Barons

Were Fully Represented to The Pope,  And The Charter Of Liberties

Shown To Him,  In writing; Which,  When He Had Carefully Perused,

He,  With A Furious Look,  Cried out,  What! Do The Barons Of England

Endeavor To Dethrone A King,  Who Has Taken Upon Him The Holy

Cross,  And Is Under The Protection Of The Apostolic See,  And Would

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2