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

Own Ideas Of Justice,  Irrespective Of The Laws

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 51

The 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 53

Be 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 54

Plain 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