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

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

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

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 43

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

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. 

Appendix Pg 44

[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 The First (1109,) This Power Of

Redemption Was Taken Away,  And All Persons Guilty Of Larceny

Above The Value Off Twelve Pence Were Directed to Be Hanged,

Which Law Continues In force To This Day."   4 Blackstone,  238

 

I Give This Statement Of Blackstone,  Because The Latter Clause May

Seem To Militate With The Idea,  Which The Former Clause

Corroborates,  Viz.,  That At The Time Of Magna Carta,  Fines Were The

Usual Punishment Of Offenses. But I Think There Is No Probability

That A Law So Unreasonable In itself,  (Unreasonable Even After

Making all Allowance For The Difference In the Value Of Money,)

And So Contrary To Immemorial Custom,  Could And Did Obtain Any

General Or Speedy Acquiescence Among A People Who Cared little

For The Authority Of Kings.

 

Maddox,  Writing of The Period From William The Conqueror To

John,  Says: "The Amercement In criminal And Common Pleas,

Which Were Wont To Be Imposed during this First Period And

Afterwards,  Were Of So Many Several Sorts,  That It Is Not Easy To

Place Them Under Distinct Heads. Let Them,  For Methods' Sake,  Be

Reduced to The Heads Following: Amercements For Or By Reason Of

Murders And Manslaughters,  For Misdemeanors,  For Disseisins,  For

Recreancy,  For Breach Of Assize,  For Defaults,  For Non-Appearance,

For False Judgment,  And For Not Making suit,  Or Hue And Cry. To

Them May Be Added miscellaneous Amercements,  For Trespasses Of

Divers Kinds."   1 Maddox' History Of The Exchequer,  542.

 

[28] Coke,  In his Exposition Of The Words Legem Terrae,  Gives Quite

In Detail The Principles Of The Common Law Governing arrests,  And

Takes It For Granted that The Words "Nisi Per Legem Terre" Are

Applicable To Arrests,  As Well As To The Indictment,  &C.   2 Inst.,  51,

52.

 

[29] I Cite The Above Extract From Mr. Hallam Solely For The Sake Of

His Authority For Rendering the Word Vel By And; And Not By Any

Means For The Purpose Of Indorsing the Opinion He Suggests,  That

Legem Terrae Authorized "Judgments By Default Or Demurrer,*'

Appendix Pg 45

Without The Intervention Of A Jury. He Seems To Imagine That Lex

Terrae,  The Common Law,  At The Time Of Magna Carta,  Included

Everything,  Even To The Practice Of Courts,  That Is,  At This Day,  Called

By The Name Of Common Law; Whereas Much Of What Is Now

Called common Law Has Grown Up,  By Usurpation,  Since The Time

Of Magna Carta,  In palpable Violation Of The Authority Of That

Charter. He Says,  "Certainly There Are Many Legal Procedures,

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

Be Taken." Of Course There Are Now Many Such Ways,  In which A

Party'S Goods Or Person Are Taken,  Besides By The Judgment Of A

Jury; But The Question Is,  Whether Such Takings Are Not In violation

Of Magna Carta.

 

He Seems To Think That,  In cases Of "Judgment By Default Or

Demurrer," There Is No Need of A Jury,  And Thence To Infer That

Legem Terrae May Not Have Required a Jury In those Cases. But This

Opinion Is Founded on The Erroneous Idea That Juries Are Required

Only For Determining contested facts,  And Not For Judging of The

Law. In case Of Default,  The Plaintif Must Present A Prima Facie Case

Before He Is Entitled to A Judgment; And Magna Carta,  (Supposing it

To Require A Jury Trial In civil Cases,  As Mr. Hallam Assumes That It

Does,) As Much Requires That This Prima Facie Case,  Both Law And

Fact,  Be Made Out To The Satisfaction Of A Jury,  As It Does That A

Contested case Shall Be.

 

As For A Demurrer,  The Jury Must Try A Demurrer (Having the Advice

And Assistance Of The Court,  Of Course) As Much As Any Other Matter

Of Law Arising in a Case.

 

Mr. Hallam Evidently Thinks There Is No Use For A Jury,  Except

Where There Is A "Trial"   Meaning thereby A Contest On Matters Of

Fact. His Language Is,  That "There Are Many Legal Procedures,

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

Be Taken." Now Magna Carta Says Nothing of Trial By Jury; But Only

Of The Judgment,  Or Sentence,  Of A Jury. It Is Only By Inference That

We Come To The Conclusion That There Must Be A Trial By Jury. Since

The Jury Alone Can Give The Judgment,  Or Sentence,  We Infer That

They Must Try The Case; Because Otherwise They Would Be

Incompetent,  And Would Have No Moral Right,  To Give Judgment.

They Must,  Therefore,  Examine The Grounds,  (Both Of Law And Fact,)

Or Rather Try The Grounds,  Of Every Action Whatsoever,  Whether It Be

Decided on "Default,  Demurrer," Or Otherwise,  And Render Their

Judgment,  Or Sentence,  Thereon,  Before Any Judgment Can Be A Legal

One,  On Which "To Take A Party'S Goods Or Person." In short,  The

Principle Of Magna Carta Is,  That No Judgment Can Be Valid Against

A Party'S Goods Or Person,  (Not Even A Judgment For Costs,) Except A

Judgment Rendered by A Jury. Of Course A Jury Must Try Every

Question,  Both Of Law And Fact,  That Is Involved in the Rendering of

That Judgment. They Are To Have The Assistance And Advice Of The

Judges,  So Far As They Desire Them; But The Judgment Itself Must Be

Theirs,  And Not The Judgment Of The Court.

 

As To "Process Of Attachment For Contempt," It Is Of Course Lawful