An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗
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Agreed Upon By Kings, Priests, And Barons; And Whatever
Principles They Uniformly, Or Perhaps Generally, Enforced, And
None Others, Became Practically The Law Of The Land As Matter Of
Course. [6]
Finally, On This Point. Conclusive Proof That The Legislation Of
The King Was Of Little Or No Authority, Is Found In The Fact That
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 Pg 51The Kings Enacted So Few Laws. If Their Laws Had Been Received As
Authoritative, In The Manner That Legislative Enactments Are At
This Day, They Would Have Been Making Laws Continually. Yet The
Codes Of The Most Celebrated Kings Are Very Small, And Were
Little More Than Compilations Of Immemorial Customs. The Code Of
Alfred Would Not Fill Twelve Pages Of The Statute Book Of
Massachusetts, And Was Little Or Nothing Else Than A Compilation
Of The Laws Of Moses, And The Saxon Customs, Evidently Collected
From Considerations Of Convenience, Rather Than Enacted On The
Principle Of Authority. The Code Of Edward The Confessor Would
Not Fill Twenty Pages Of The Statute Book Of Massachusetts, And,
Says Blackstone, "Seems To Have Been No More Than A New Edition,
Or Fresh Promulgation Of Alfred's Code, Or Dome-Book, With Such
Additions And Improvements As The Experience Of A Century And A
Half Suggested." 1 Blackstone, 66. [7]
The Code Of Wiliiam The Conqueror [8] Would Fill Less Than Seven
Pages Of The Statute Book Of Massachusetts; And Most Of The Laws
Contained In It Are Taken From The Laws Of The Preceding Kings,
And Especially Of Edward The Confessor (Whose Laws William
Swore To Observe); But Few Of His Own Being Added.
The Codes Of The Other Saxon And Norman Kings Were, As A General
Rule, Less Voluminous Even Than These That Have Been Named; And
Probably Did Not Exceed Them In Originality. [9] The Norman
Princes, From William The Conqueror To John, I Think Without
Exception, Bound Themselves, And, In Order To Mqintain Their
Thrones, Were Obliged To Bind Themselves, To Observe The Ancient
Laws And Customs, In Other Words; The "Lex Terrae," Or "Common
Law" Of The Kingdom. Even Magna Carta Contains Hardly Anything
Other Than This Same "Common Law," With Some New Securities For
Its Observance.
How Is This Abstinence From Legislation, On The Part Of The
Ancient Kings, To Be Accounted For, Except On The Supposition
That The People Would Accept, And Juries Enforce, Few Or No New
Laws Enacted By Their Kings? Plainly It Can Be Accounted. For In
No Ether Way. In Fact, All History Informs Us That Anciently The
Attempts Of The Kings To Introduce Or Establish New Laws, Met
With Determined Resistance From The People, And Generally
Resulted In Failure "Nolumus Leges Angliae Mutari" (We Will That
The Laws Of England Be Not Changed,) Was A Determined Principle
With The Anglo-Saxons, From Which They Seldom Departed, Up To
The Time Of Magna Carta, And Indeed Until Long After. [10]
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 52
The Ancient Common Law Juries Were Mere Courts Of
Conscience.
But It Is In The Administration Of Justice, Or Of Law, That The
Freedom Or Subjection Of A People Is Tested. If This
Administration Be In Accordance With The Arbitrary Will Of The
Legislator That Is, If His Will, As It Appears In His Statutes,
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 53Be The Highest Rule Of Decision Known To The Judicial Tribunals,
The Government Is A Despotism, And The People Are Slaves. If, On
The Other Hand, The Rule Of Decision Be These Principles Of
Natural Equity And Justice, Which Constitute, Or At Least Are
Embodied In, The General Conscience Of Mankind, The People Are
Free In Just So Far As That Conscience Is Enlightened.
That The Authority Of The King Was Of Little Weight With The
Judicial Tribunals, Must Necessarily Be Inferred From The Fact
Already Stated, That His Authority Over The People Was But Weak.
If The Authority Of His Laws Had Been Paramount In The Judicial
Tribunals, It Would Have Been Paramount With The People, Of
Course; Because They Would Have Had No Alternative But
Submission. The Fact, Then, That His Laws Were Not Authoritative
With The People, Is Proof That They Were Not Authoritative With
The Tribunals In Other Words, That They Were Not, As Matter Of
Course, Enforced By The Tribunals.
But We Have Additional Evidence That, Up To The Time Of Magna
Carta, The Laws Of The King Were Not Binding Upon The Judicial
Tribunals; And If They Were Not Binding Before That Time, They
Certainly Were Not Afterwards, As Has Already Been Shown From
Magna Carta Itself. It Is Manifest From All The Accounts We Have
Of The Courts In Which Juries Sat, Prior To Magna Carta, Such As
The Court-Baron, The Hundred Court, The Court-Leet, And The
County Court, That They Were Mere Courts Of Conscience, And That
The Juries Were The Judges, Deciding Causes According To Their
Own Notions Of Equity, And Not According To Any Laws Of The King,
Unless They Thought Them Just.
These Courts, It Must Be Considered, Were Very Numerous, And Held
Very Frequent Sessions. There Were Probably Seven, Eight, Or Nine
Hundred Courts A Month, In The Kingdom; The Object Being, As
Blackstone Says, "To Bring Justice Home To Every Man's Door." (3
Blackstone, 80.) The Number Of The County Courts, Of Course,
Corresponded To The Number Of Counties, (36.) The Court-Leet Was
The Criminal Court For A District Less Than A County. The Hundred
Court Was The Court For One Of Those Districts Anciently Called A
Hundred, Because, At The Time Of Their First Organization For
Judicial Purposes, They Comprised, (As Is Supposed) But A Hundred
Families. [11] The Court-Baron Was The Court For A Single Manor,
And There Was A Court For Every Manor In The Kingdom. All These
Courts Were Holden As Often As Once In Three Or Five Weeks; The
County Court Once A Month. The King's Judges Were Present At None
Of These Courts; The Only Officers In Attendance Being Sheriffs
Bailiff's, And Stewards, Merely Ministerial, And Not Judicial,
Officers; Doubtless Incompetent, And, If Not Incompetent,
Untrustworthy, For Giving The Juries Any Reliable Information In
Matters Of Law, Beyond What Was Already Known To The Jurors
Themselves.
And Yet These Were The Courts, In Which Was Done All The Judicial
Business, Both Civil And Criminal, Of The Nation, Except Appeals,
And Some Of The More Important And Difficult Cases. [12] It Is
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 54Plain That The Juries, In These Courts, Must, Of Necessity, Have
Been The Sole Judges Of All Matters Of Law Whatsoever; Because
There Was No One Present, But Sheriffs, Bailiffs, And Stewards,
To Give Them Any Instructions; And Surely It Will Not Be Pretended
That The Jurors Were Bound To Take Their Law From Such Sources
As These.
In The Second Place, It Is Manifest That The Principles Of Law,
By Which The Juries Determined Causes, Were, As A General Rule,
Nothing Else Than Their Own Ideas Of Natural Equity, And Not Any
Laws Of The King; Because But Few Laws Were Enacted, And Many Of
Those Were Not Written, But Only Agreed Upon In Council. [13] Of
Those That Werewritten, Few Copies Only Were Made, (Printing
Being Then Unknown,) And Not Enough To Supply A11, Or Any
Considerable Number, Of These Numerous Courts. Beside And
Beyond All This, Few Or None Of The Jurors Could Have Read The Laws, If
They Had Been Written; Because Few Or None Of The Common People
Could, At Thattime, Read. Not Only Were The Common People Unable
To Read Their Own Language, But, At The Time Of Magna Carta, The
Laws Were Written In Latin, A Language That Could Be Read By Few
Persons Except The Priests, Who Were Also The Lawyers Of The
Nation. Mackintosh Says, "The First Act Of The House Of Commons
Composed And Recorded In The English Tongue," Was In 1415, Two
Centuries After Magna Carta. [14]. Up To This Time, And For Some
Seventy Years Later, The Laws Were Generally Written Either In Latin
Or French; Both Languages Incapable Of Being Read By The Common
People, As Well Normans As Saxons; And One Of Them, The Latin,
Not Only Incapable Of Being Read By Them, But Of Beingeven
Understood When It Was Heard By Them.
To Suppose That The People Were Bound To Obey, And Juries To
Enforce, Laws, Many Of Which Were Unwritten, None Of Which They
Could Read, And The Larger Part Of Which (Those Written In Latin)
They Could Not Translate, Or Understand When They Heard Them
Read, Is Equivalent To Supposing The Nation Sunk In The Most
Degrading Slavery, Instead Of Enjoying A Liberty Of Their Own
Choosing.
Their Knowledge Of The Laws Passed By The King Was, Of Course,
Derived Only From Oral Information; And The Good Laws,"As Some Of
Them Were Called, In Contradistinction To Others Those Which
The People At Large Esteemed To Be Good Laws Were Doubtless
Enforced By The Juries, And The Others, As A General Thing,
Disregarded. [15]
That Such Was The Nature Of Judicial Proceedings, And Of The
Power Of Juries, Up To The Time Of Magna Carta, Is Further Shown
By The Following Authorities.
"The Sheriff's And Bailiffs Caused The Free Tenants Of Their
Bailiwics To Meet At Their Counties And Hundreds; At Which
Justice Was So Done, That Every One So Judged His Neighbor By
Such Judgment As A Man Could Not Elsewhere Receive In The Like
Cases, Until Such Times As The Customs Of The Realm Were Put In
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