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

Appendix Pg 46

For A Judge,  In his Character Of A Peace Officer,  To Issue A Warrant

For The Arrest Of A Man Guilty Of A Contempt,  As He Would For The

Arrest Of Any Other Offender,  And Hold Him To Bail,  (Or,  In default Of

Bail,  Commit Him To Prison,) To Answer For His Offence Before A

Jury. Or He May Order Him Into Custody Without A Warrant When The

Offence Is Committed in the Judge'S Presence.

 

But There Is No Reason Why A Judge Should Have The Power Of

Punishing,  For Contempt,  Any More Than For Any Other Offence. And

It Is One Of The Most Dangerous Powers A Judge Can Have,  Because It

Gives Him Absolute Authority In a Court Of Justice,  And Enables Him

To Tyrannize As He Pleases Over Parties,  Counsel,  Witnesses,  And

Jurors. If A Judge Have Power To Punish For Contempt,  And To

Determine For Himself What Is A Contempt,  The Whole Administration

Of Justice (Or Injustice,  If He Choose To Make It So) Is In his Hands.

And All The Rights Of Jurors,  Witnesses,  Counsel,  And Parties,  Are

Held Subject To His Pleasure,  And Can Be Exercised only Agreeably

To His Will. He Can Of Course Control The Entire Proceedings In, 

And Consequently The Decision Of,  Every Cause,  By Restraining and

Punishing every One,  Whether Party,  Counsel,  Witness,  Or Juror, 

Who Presumes To Offer Anything contrary To His Pleasure. 

 

This Arbitrary Power,  Which Has Been Usurped and Exercised by

Judges To Punish For Contempt,  Has Undoubtedly Had Much To Do In

Subduing counsel Into Those Servile,  Obsequious,  And Cowardly

Habits,  Which So Universally Prevail Among Them,  And Which Have

Not Only Cost So Many Clients Their Rights,  But Have Also Cost The

People So Many Of Their Liberties.

 

If Any Summary,  Punishment For Contempt Be Ever Necessary,  (As It

Probably Is Not,) Beyond Exclusion For The Time Being from The

Court-Room,  (Which Should Be Done,  Not As A Punishment,  But For

Self-Protection,  And The Preservation Of Order,) The Judgment For It

Should Be Given By The Jury,  (Where The Trial Is Before A Jury,) And

Not By The Court,  For The Jury,  And Not The Court,  Are Really The

Judges. For The Same Reason,  Exclusion From The Court-Room Should

Be Ordered only By The Jury,  In cases When The Trial Is Before A Jury,

Because They,  Being the Real Judges And Triers Of The Cause,  Are

Entitled,  If Anybody,  To The Control Of The Court-Room. In appeal

Courts,  Where No Juries Sit,  It May Be Necessary   Not As A

Punishment,  But For Self-Protection,  And The Maintenance Of Order 

That The Court Should Exercise The Power Of Excluding a Person,  For

The Time Being,  From The Court-Room; But There Is No Reason Why

They Should Proceed to Sentence Him As A Criminal,  Without His

Being tried by A Jury.

 

If The People Wish To Have Their Rights Respected and Protected in

Courts Of Justice,  It Is Manifestly Of The Last Importance That They

Jealously Guard The Liberty Of Parties,  Counsel,  Witnesses,  And

Jurors,  Against All Arbitrary Power On The Part Of The Court.

 

Certainly Mr. Hallam May Very Well Say That "One May Doubt

Whether These (The Several Eases He Has Mentioned) Were In

Contemplation Of The Framers Of Magna Carta "  That Is,  As

Appendix Pg 47

Exceptions To The Rule Requiring that All Judgmcnts,  That Are To Be

Enforced "Against A Party'S Goods Or Person,",  Be Rendered by A Jury.

 

Again,  Mr. Hallam Says,  If The Word Vel,  Be Rendered by And,,  "The

Meaning will Be,  That No Person Shall Be Disseized,  &C.,  Except

Upon A Lawful Cause Of Action.",  This Is True; But It Does Not Follow

That Any Cause Of Action,  Founded on Statute Only,,  Is Therefore A

"Lawful,  Cause Of Action," Within The Meaning of Legem Terrae,  ,  Or

The Common Law.,  Within The Meaning of The Legem Terrae,  Of

Magna Carta,  Nothing but A Common Law,  Cause Of Action Is A

"Lawful",  One.

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Pg 48

If Any Evidence,  Extraneous To The History And Language Of Magna

Carta,  Were Needed. To Prove That,  By That Chapter Which

Guaranties The Trial By Jury,  All Was Meant That Has Now Been

Ascribed to It,  And That The Legislation Of The King was To Be Of

No Authority With The Jury Beyond What They Chose To Allow To It,

And That The Juries Were To Limit The Punishments To Be Inflicted, 

We Should Find That Evidence In various Sources,  Such As The Laws, 

Customs,  And Characters Of Their Ancestors On The Continent,  And

Of The Northern Europeans Generally; In the Legislation And Customs

That Immediately Succeeded magna Carta; In the Oaths That Have

At Different Times Been Administered to Jurors,  &C;.,  &C;. This

Evidence Can Be Exhibited here But Partially. To Give It All Would

Require Too Much Space And Labor

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 (Weakness Of The Regal Authority) Pg 49

Hughes,  In his Preface To His Translation Of Horne'S "Mirror Of

Justices," (A Book Written In the Time Of Edward I,  1272 To

1307,) Giving a Concise View Of The Laws Of England Generally,

Says:

 

"Although In the Saxon'S Time I Find The Usual Words Of The Acts

Then To Have Been Edictum,  (Edict,) Constitutio,  (Statute,)

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 (Weakness Of The Regal Authority) Pg 50

Little Mention Being made Of The Commons,  Yet I Further Find

That,  Tum Demum Leges Vim Et Vigorem Habuerunt,  Cum Fuerunt

Non Modo Institutae Sed firmatae Approbatione Communitatis." (The

Laws Had Force And Vigor Only When They Were Not Only Enacted,

But Confirmed by The Approval Of The Community.)

 

The Mirror Of Justices Itself Also Says,  (Ch. 1,  Sec. 3,) In

Speaking "Of The First Constitutions Of The Ancient King."

 

"Many Ordinances Were Made By Many Kings,  Until The Time Of The

King that Now Is (Edward I.); The Which Ordinances Were Abused,

Or Not Used by Many,  Nor Very Current,  Because They Were Not Put

In Writing,  And Certainly Published."   Mirror Of Justices,  P. 6.

 

Hallam Says:

 

"The Franks,  Lombards,  And Saxons Seem Alike To Have Been

Jealous Of Judicial Authority; And Averse To Surrendering what Concerned

Every Man'S Private Right,  Out Of The Hands Of His Neighbors And

Equals."   1 Middle Ages,  271.

 

The "Judicial Authority," Here Spoken Of,  Was The Authority Of

The Kings,  (Who At That Time United the Office Of Both

Legislators And Judges,),  And Not Of A Separate Department Of

Government,  Called the Judiciary,  Like What Has Existed in more

Modern Times. [1]

 

Hume Says:

 

"The Government Of The Germans,  And That Of All The Northern

Nations,  Who Established themselves On The Ruins Of Rome,  Was

Always Extremely Free; And Those Fierce People,  Accustomed to

Independence And Inured to Arms,  Were More Guided by

Persuasion,  Than Authority,  In the Submission Which They Paid To Their

Princes. The Military Despotism,  Which Had Taken Place N The

Roman Empire,  And Which,  Previously To The Irruption Of Those

Conquerors,  Had Sunk The Genius Of Men,  And Destroyed every Noble

Principle Of Science And Virtue,  Was Unable To Resist The

Vigorous Efforts Of A Free People,  And Europe,  As From A New

Epoch,  Rekindled her Ancient Spirit,  And Shook Off The Base

Servitude To Arbitrary Will And Authority Under Which She Had So

Long Labored. The Free Constitutions Then Established,  However

Impaired by The Encroachments Of Succeeding princes,  Still

Preserve An Air Of Independence And Legal Administration,  Which

Distinguished the European Nations; And If That Part Of The Globe

Maintain Sentiments Of Liberty,  Honor,  Equity,  And Valor,

Superior To The Rest Of Mankind,  It Owes These Advantages Chiefly

To The Seeds Implanted by Those Generous Barbarians.

 

"The Saxons,  Who Subdued britain,  As They Enjoyed great Liberty

In Their Own Country,  Obstinately Retained that Invaluable

Possession In their New Settlement; And They Imported into This

Island The Same Principles Of Independence,  Which They Had

Inherited from Their Ancestors. The Chieftains,  ( For Such They

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 (Weakness Of The Regal Authority) Pg 51

Were,  More Than Kings Or Princes,) Who Commanded them In those

Military Expeditions,  Still Possessed a Very Limited authority;

And As The Saxons