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

Are

Free In just So Far As That Conscience Is Enlightened.

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 59

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

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.

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 60

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

Writing,  And Certainly Published.

 

"And Although A Freeman Commonly Was Not To Serve (As A Juror Or

Judge) Without His Assent,  Nevertheless It Was Assented unto That

Free Tenants Should Meet Together In the Counties And Hundreds,

And Lords Courts,  If They Were Not Specially Exempted to Do Such

Suits,  And There Judged their Neighbors."   Mirror Of Justices,

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 61

P. 7,  8.

 

Gilbert,  In his Treatise On The Constitution Of England,  Says:

 

"In The County Courts,  If The Debt Was Above Forty Shillings,

There Issued a Justicies (A Commission) To The Sheriff,  To Enable

Him To Hold Such A Plea,  Where The Suitors (Jurors) Are Judges Of

The Law And Fact."   Gilbert'S Cases In law And Equity,  &C;.,

&C;.,  456.

 

All The Ancient Writs,  Given In glanville,  For Summoning jurors,

Indicate That The Jurors Judged of Everything,  On Their

Consciences Only. The Writs Are In this Form:

 

"Summon Twelve Free And Legal Men (Or Sometimes Twelve

Knights)

To Be In court,  Prepared upon Their Oaths To Declare Whether A Or

B Have The Greater Right To The Land {Or Other Thing) In

Question." See Writs In beames' Glanville,  P. 54 To 70,  And 233 

306 To 832.

 

Crabbe,  Speaking of The Time Of Henry I.,  (1100 To 1135,)

Recognizes The Fact That The Jurors Were The Judges. He Says:

 

"By One Law,  Every One Was To Be Tried by His Peers,  Who Were Of

The Same Neighborhood As Himself. * *By Another Law,  The Judges,

For So The Jury Were Called,  Were To Be Chosen By The Party

Impleaded,  After The Manner Of The Danish Nem-Bas; By Which,

Probably,  Is To Be Understood That The Defendant Had The Liberty

Of Taking exceptions To,  Or Challenging the Jury,  As It Was

Afterwards Called."   Crabbe'S History Of The English Law,  P. 55.

 

Reeve Says:

 

"The Great Court For Civil Business Was The County Court; Held

Once Every Four Weeks. Here The Sheriff Presided; But The Suitors

Of The Court,  As They Were Called,  That Is,  The Freemen Or

Landholders Of The County,  Were The Judges; And The Sheriff Was

To Execute The Judgment.

 

"The Hundred court Was Held Before Some Bailiff; The Leet Before

The Lord Of The Manor'S Steward.[16]

 

"Out Of The County Court Was Derived an Inferior Court Of Civil

Jurisdiction,  Called the Court-Baron. This Was Held From Three

Weeks To Three Weeks,  And Was In every Respect Like The County

Court;" (That Is,  The Jurors Were Judges In it;) "Only The Lord

To Whom This Franchise Was Granted,  Or His Steward Presided

Instead Of The Sheriff;"   1 Reeve'S History Of The English Law,

P. T., 

 

Chief Baron Gilbert Says:

 

"Besides The Tenants Of The King,  Which Held Per Baroniam,  (By

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 62

The Right Of A Baron,) And Did Suit And Service (Served as

Judges) At His Own Court; And The Burghers And Tenants In ancient

Demesne,  That Did Suit And Service (Served as Jurors Or Judges)

In Their Own Court In person),  And In the King'S By Proxy,  There

Was Also A Set Of Freeholders,  That Did Suit Aud Service (Served

As Jurors) At The County Court. These Were Such As Anciently Held

Of The Lord Of The County,  And By The Escheats Of Earldoms Had

Fallen To The King; Or Such As Were Granted out By Service To

Hold Of The King,  But With Particular Reservation To Do Suit And

Service (Serve As Jurors) Before The