An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗
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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 38Proceedings 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 39His 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
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