An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗

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.

 

[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.

 

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 37

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

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 Really The Trial By Jury,  Or Was Allowed As An Appeal From

A Jury. It Is Wholly Improbable That Two Diferent Modes Of Trial,  So

Nearly Resembling Each Other As This And The Trial By Jury Do,  Should

Prevail At The Same Time,  And Among A Rude People,  Whose Judicial

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 38

Proceedings Would Naturally Be Of The Simplest Kind. But If This

Trial Really Were Any Other Than The Trial By Jury,  It Must Have Been

Nearly Or Quite Extinct At The Time Of Magna Carta; And There Is No

Probability That It Was Included In "Legem Terrae."

 

[24] Hallam Says,  "It Appears As If The Ordeal Were Permitted To

Persons Already Convicted By The Verdict Of A Jury."   2 Middle

Ages,  446,  Note.

 

[25] Coke Attempts To Show That There Is A Distinction Between

Amercements And Fines   Admitting That Amercements Must Be

Fixed By One's Peers,  But,  Claiming That,  Fines May Be Fixed By The

Government. (2 Inst. 27,  8 Coke's Reports 38) But There Seems To

Have Been No Ground Whatever For Supposing That Any Such

Distinction Existed At The Time Of Magna Carta. If There Were Any

Such Distinction In The Time Of Coke,  It Had Doubtless Grown Up

Within The Four Centuries That Had Elapsed Since Magna Carta,  And

Is To Be Set Down As One Of The Numberless Inventions Of

Government For Getting Rid Of The Restraints Of Magna Carta,  And

For Taking Men Out Of The Protection Of Their Peers,  And Subjecting

Them To Such Punishments As The Government Chooses To Inflict.

 

The First Statute Of Westminster,  Passed Sixty Years After Magna

Carta,  Treats The Fine And Amercement As Synonymous,  As Follows.

 

"Forasmuch As The Common Fine And Amercement Of The Whole

County In Eyre Of The Justices For False Judgments,  Or For Other

Trespass,  Is Unjustly Assessed By Sheriffs And Baretors In The Shires,

* * It Is Provided,  And The King Wills,  That Frown Henceforth Such

Sums Shall Be Assessed Before The Justices In Eyre,  Afore Their

Departure,  By The Oath Of Knights And Other Honest Men," &C.   3

Edward I.,  Ch. 18. (1275)

 

And In Many Other Statutes Passed After Magna Carta,  The Terms

Fine And Amercement Seem To Be Used Indifferently,  In Prescribing

The Punishments For Offences. As Late As 1461,  (246 Years After

Magna Carta,) The Statute 1 Edward Iv.,  Ch 2,  Speaks Of "Fines.,

Ransoms,  And Amerciaments" As Being Levied Upon Criminals,  As If

They Were The Common Punishments Of Offences.

 

St. 2 And 3 Philip And Mary,  Ch 8,  Uses The Terms,  "Fines,

Forfeitures,  And Amerciaments" Five Times. (1555)

 

St. 5 Elizabeth,  Ch. 13,  Sec. 10,  Uses The Terms "Fines,  Forfeitures,

And Amerciaments."

 

That Amercements Were Fines,  Or Pecuniary Punishments,  Inflicted

For Offences,  Is Proved By The Following Statutes,  (All Supposed To

Have Been Passed Within One Hundred And Fifteen Years After

Magna Cart,) Which Speak Of Amercements As A Species Of

"Judgment," Or Punishment,  And As Being Inflicted For The Same

Offences As Other "Judgments."

 

Thus One Statute Declares That A Baker,  For Default In The Weight Of

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 39

His Bread,  "Ought To Be Amerced,  Or Suffer The Judgment Of The

Pillory; And That A Brewer,  For "Selling Ale Contrary To The Assize,"

"Ought To Be Amerced,  Or Suffer The Judgment Of The Tumbrel," -- 51

Henry Iii.,  St. 6. (1266)

 

Among The "Statutes Of Uncertain Date," But Supposed To Be Prior

To Edward Iii.,  (1326),  Are The Following:

 

Chap. 6 Provides That "If A Brewer Break The Assize,  (Fixing The

Price Of Ale,) The First,  Second,  And Third Time,  He Shall Be Amerced;

But The Fourth Time He Shall Suffer Judgment Of The Pillory Without

Redemption."

 

Chap. 7 Provides That "A Butcher That Selleth Swine's Flesh

Measeled,  Or Flesh Dead Of The Murrain,  Or That Buyeth Flesh Of

Jews,  And Selleth The Same Unto Christians,  After He Shall Be

Convict Thereof,  For The First Time He Shall Be Grievously Amerced;

The Second Time He Shall Suffer Judgment Of The Pillory; And The

Third Time He Shall Be Imprisoned And Make Fine; And The Fourth

Time He Shall Forswear The Town."

 

Chap. 10,  A Statute Against Forestalling,  Provides That,  "He That Is

Convict Thereof,  The First Time Shall Be Amerced,  And Shall Lose The

Thing So Bought,  And That According To The Custom Of The Town; He

That Is Convicted The Second Time Shall Have Judgment Of The

Pillory; At The Third Time He Shall Be Imprisoned And Make Fine; The

Fourth Time He Shall Abjure The Town. And This Judgment Shall Be

Given Upon All Manner Of Forestallers,  And Likewise Upon Them That

Have Given Them Counsel,  Help,  Or Favor."   1 Ruffheads Statutes,

187,  188. 1 Statutes Of The Realm,  203.

 

[26] 1 Hume,  Appendix,  L.

 

[27] Blackstone Says,  "Our Ancient Saxon Laws Nominally Punished

Theft With Death,  If Above The Value Of Twelve Pence; But The

Criminal Was Permitted To Redeem His Life By A Pecuniary Ransom,

As Among Their Ancestors,  The Germans,  By A Stated Number Of

Cattle. Bit In The Ninth Year Of Henry