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

(The Language Of Magna Carta) Pg 39

They Force Him To Transfer The Dominions Of The Roman Church To

Others? By St. Peter,  This Injury Must Not Pass Unpunished. Then

Debating the Matter With The Cardinals,  He,  By A Definitive Sentence,

Damned and Cassated forever The Charter Of Liberties,  And Sent The

King a Bull Containing that Sentence At Large."   Echard'S History Of

England,  P. 106-7

 

These Things Show That The Nature And Effect Of The Charter Were

Well Understood By The King and His Friends; That They All Agreed

That He Was Effectually Stripped of Power. Yet The Legislative Power

Had Not Been Taken From Him; But Only The Power To Enforce His

Laws,  Unless Juries Should Freely Consent To Their Enforcement.

 

[10] The Laws Were,  At That Time,  All Written In latin.

 

[11]"No Man Shall Be Condemned at The King"S Suit,  Either Before

The King in his Bench,  Where Pleas Are Coram Rege,  (Before The

King,) (And So Are The Words Nec Super Eum Ibimus,  To Be

Understood,) Nor Before Any Other Commissioner Or Judge

Whatsoever,  And So Are The Words Nec Super Eum Mittemus,  To Be

Understood,  But By The Judgment Of His Peers,  That Is,  Equals,  Or

According to The Law Of The Land."   2 Coke'S Inst.,  46.

 

[12] Perhaps The Assertion In the Text Should Be Made With This

Qualification   That The Words "Per Legem Terrae," (According to The

Law Of The Land,) And The Words "Per Legale Judiciun Parium

Suorum," (According to The Legal Judgment Of His Peers,) Imply That

The King,  Before Proceeding to Any Executive Action,  Will Take

Notice Of "The Law Of The Land," And Of The Legality Of The Judgment

Of The Peers,  And Will Execute Upon The Prisoner Nothing except

What The Law Of The Land Authorizes,  And No Judgments Of The Peers,

Except Legal Ones. With This Qualification,  The Assertion In the Text

Is Strictly Correct   That There Is Nothing in the Whole Chapter That

Grants To The King,  Or His Judges,  Any Judicial Power At All. The

Chapter Only Describes And Limits His Executive Power.

 

[13] See Blackstone'A Law Tracts,  Page 294,  Oxford Edition

 

[14] These Articles Of The Charter Are Given In blackstone'S

Collection Of Charters,  And Are Also Printed with The Statutes Of The

Realm. Also In wilkins' Laws Of The Anglo- Saxons,  P. 350.

 

[15] Lingard Says,  " The Words,  ' We Will Not Destroy Him Nor Will

We Go Upon Him,  Nor Will We Send Upon Him,' Have Been Very

Differently Expounded by Different Legal Authorities. Their Real

Meaning may Be Learned from John Himself,  Who The Next Year

Promised by His Letters Patent,... Nec Super Eos Per Vim Vel Per

Arma Ibimus,  Nisi Per Legem Regni Nostri,  Vel Per Judicium Parium

Suorum In curia Nostra,  (Nor Will We Go Upon Them By Force Or By

Arms,  Unless By The Law Of Our Kingdom,  Or The Judgment Of Their

Peers In our Court.) Pat. 16 Johan,  Apud Drad. 11,  App. No. 124.

 

He Had Hitherto Been In the Habit Of Going with An Armed force,  Or

Sending an Armed force On The Lands,  And Against The Castles,  Of All

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 40

Whom He Knew Or Suspected to Be His Secret Enemies,  Without

Observing any Form Of Law."   3 Lingard,  47 Note.

 

[16] "Judgment,  Judicium. * * The Sentence Of The Law,

Pronounced by The Court,  Upon The Matter Contained in the Record."

  8 Blackstone,  895. Jacob'S Law Dictionary. . Tomlin'S Do.

 

"Judgment Is The Decision Or Sentence Of The Law,  Given By A Court

Of Justice Or Other Competent Tribunal,  As The Result Of The

Proceedings Instituted therein,  For The Redress Of An Injury." 

Bouvier'S Law Dict.

 

"Judgment,  Judicium. * * Sentence Of A Judge Against A Criminal. *

* Determination,  Decision In general."   Bailey'S Dict.

 

"Judgment. * * In a Legal Sense,  A Sentence Or Decision Pronounced

By Authority Of A King,  Or Other Power,  Either By Their Own Mouth,

Or By That Of Their Judges Andofficers,  Whom They Appoint,  To

Administer Justice In their Stead."   Chambers' Dict.

 

"Judgment. * * In law,  The Sentence Or Doom Pronounced in any

Case,  Civil Orcriminal,  By The Judge Or Court By Which It Is Tried." 

Webster'S Dict.

 

Sometimes The Punishment Itself Is Called judicium,  Judgment; Or,

Rather,  It Was At The Time Of Magna Carta. For Example,  In a Statute

Passed fifty-One Years After Magna Carta,  It Was Said That A Baker,

For Default In the Weight Of His Bread,  " Debeat Amerciari Vel Subire

Judicium Pillorie;" That Is,  Ought To Be Amerced,  Or Suffer The

Punishment,  Or Judgment,  Of The Pillory. Also That A Brewer,  For

"Selling ale Contrary To The Assize," "Debeat Amerciari,  Vel Pati

Judicium Tumbrelli "; That Is,  Ought To Be Amerced,  Or Suffer The

Punishment,  Or Judgment,  Of The Tumbrel.   51 Henry 3,  St. 6.

(1266.)

 

Also The "Statutes Of Uncertain Date," (But Supposed to Be Prior To

Edward Iii.,  Or 1326,) Provide,  In chapters 6,  7,  And 10,  For

"Judgment Of The Pillory."   See 1 Rughead'S Statutes,  187,  188. 1

Statutes Of The Realm,  203.

 

Blackstone,  In his Chapter "Of Judgment,  And Its Consequences,"

Says,  "Judgment (Unless Any Matter Be Offered in arrest Thereof) Follows

Upon Conviction F Being the Pronouncing of That Punishment Which

Is Expressly Ordained by Law."   Blackstone'S Analysis Of The Laws

Of England,  Book 4,  Ch. 29,  Sec. 1. Blackstone'S Law Tracts,  126.

 

Coke Says,  "Judicium .. The Judgment Is The Guide And Direction Of

The Execution." 3 Inst. 210.

 

[17] This Precedent From Germany Is Good Authority,  Because The

Trial By Jury Was In use,  In the Northern Nations Of Europe

Generally,  Long Before Magna Carta,  And Probably From Time

Immemorial; And The Saxons And Normans Were Familiar With It

Before They Settled in england. 

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 41

 

[18] Beneficium Was The Legal Name Of An Estate Held By A Feudal

Tenure. See Spelman'S Glossary.

 

[19]] Contenement Of A Freeman Was The Means Of Living in the

Condition Of A Freeman.

 

[20] Waynage Was A Villein'S Plough-Tackle And Carts.

 

[21] Tomlin Says,  "The Ancient Practice Was,  When Any Such Fine

Was Imposed,  To Inquire By A Jury Quantum Inde Regi Dare Valeat

Per Annum,  Salva Sustentatione Sua Et Uxoris Et Libe- Rorum Suorum,

(How Much Is He Able To Give To The King per Annum,  Saving his

Own Maintenance,  And That Of His Wife And Children). And Since The

Disuse Of Such Inquest,  It Is Never Usual To Assess A Larger Fine Than

A Man Is Able To Pay,  Without Touching the Implements Of His

Livelihood; But To Inflict Corporal Punishment,  Or A Limited

Imprisonment,  Instead Of Such A Fine As Might Amount To

Imprisonment For Life. And This Is The Reason Why Fines In the

King'S Courts Are Frequently Denominated ransoms,  Because The

Penalty Must Otherwise Fall Upon A Man'S Person,  Unless It Be

Redeemed or Ransomed by A Pecuniary Fine."   Tomlin'S Law Dict.,

Word Fine.

 

[22] Because Juries Were To Fix The Sentence,  It Must Not Be

Supposed that The King was Obliged to Carry The Sentence Into

Execution; But Only That He Could Not Go Beyond The Sentence. He

Might Pardon,  Or He Might Acquit On Grounds Of Law,  Not

Withstanding the Sentence; But He Could Not Punish Beyond The

Extent Of The Sentence. Magna Carta Does Not Prescribe That The

King shall Punish According to The Sentence Of The Peers; But Only

That He Shall Not Punish "Unless According to" That Sentence. He

May Acquit Or Pardon,  Notwithstanding their Sentence Or Judgment;

But He Cannot Punish,  Except According to Their Judgment.

 

[23] The Trial By Battle Was One In which The Accused challenged

His Accuser To Single Combat,  And Staked tbe Question Of His Guilt Or

Innocence On The Result Of The Duel. This Trial Was Introduced into

England By The Normans,  Within One Hundred and Fifty Years

Before Magna Carta. It Was Not Very Often Resorted to Even By The

Normans Themselves; Probably Never By The Anglo-Saxons,  Unless

In Their Controversies With The Normans. It Was Strongly

Discouraged by Some Of The Norman Princes,  Particularly By Henry

Ii.,  By Whom The Trial By Jury Was Especially Favored. It Is Probable

That The Trial By Battle,  So Far As It Prevailed at All In england,  Was

Rather Tolerated as A Matter Of Chivalry,  Than Authorized as A Matter

Of Law. At Any Rate,  It Is Not Likely That It Was Included in the

"Legem Terrae" Of Magna Carta,  Although Such Duels Have

Occasionally Occurred since That Time,  And Have,  By Some,  Been

Supposed to Be Lawful. I Apprehend That Nothing can Be Properly

Said To Be A Part Of Lex Terrae,  Unless It Can Be Shown Either To Have

Been Of Saxon Origin,  Or To Have Been Recognized by Magna Carta.

 

The Trial By Ordeal Was Of Various Kinds. In one Ordeal The Accused

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 42

Was Required to Take Hot Iron In his Hand; In another To Walk

Blindfold Among Red-Hot Ploughshares; In another To Thrust His Arm

Into Boiling water; In another To Be Thrown,  With His Hands And Feet

Bound,  Into Cold Water; In another To Swallow The Morsel Of

Execration; In the Confidence That His Guilt Or Innocence Would Be

Miraculously Made Known. This Mode Of Trial Was Nearly Extinct At

The Time Of Magna Carta,  And It Is Not Likely That It Was Included in

"Legem Terrae," As That Term Is Used in that Instrument. This Idea Is

Corroborated by The Fact That The Trial By Ordeal Was Specially

Prohibited only Four Years After Magna Carta,  "By Act Of Parliament

In 3 Henry Iii.,  According to Sir Edward Coke,  Or Rather By An

Order Of The King in council."   3 Blacks,One 345,  Note.

 

I Apprehend That This Trial Was Never Forced upon Accused persons,

But Was Only Allowed to Them,  As An Appeal To God,  From The

Judgment Of A Jury. [24]

 

The Trial By Compurgators Was One In which,  If The Accused could

Bring twelve Of His Neighbors,  Who Would Make Oath That They

Believed him Innocent,  He Was Held To Be So. It Is Probable That This

Trial Was