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

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 55

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,

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

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 56

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

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 Kng's Bailiff; Because It

Was Necessary The Sheriff,  Or Bailiff Of The King,  Should Have

Suitors (Jurors) At The County Court,  That The Business Might Be

Despatched. These Suitors Are The Pares (Peers) Of The County

Court,  And Indeed The Judges Of It; As The Pares (Peers) Were The

Judges In Every Court-Baron; And Therefore The King's Bailiff

Having A Court Before Him,  There Must Be Pares Or Judges,  For The

Sheriff Himself Is Not A Judge; And Though The Style Of The Court

Is Curia Prima Comitatus E. C. Milit.' Vicecom' Comitat' Praed'

Tent' Apud B.,  &C;. (First Court Of The County,  E. C. Knight,

Sheriff Of The Aforesaid County,  Held At B.,  &C;.); By Which It

Appears That The Court Was The S1ieriff's; Yet,  By The Old Feudal

Constititions,  The Lord Was Not Judge,  But The Pares (Peers)

Only; So That,  Even In A Justicies,  Which Was A Commission To The

Sheriff To Hold Plea Of More Than Was Allowed Hy The Natural

Jurisdiction Of A County Court,  The Pares (Peers,  Jurors) Only

Were Judges,  And Not The Sheriff; Because It Was To Hold Plea In

The Same Manner As They Used To Do In That (The Lord's) Court." 

Gilbert On The Court Of Exchequer,  Ch. 5.  61- 2.

 

"It Is A Distinguishing Feature Of The Feudal System,  To Make

Civil Jurisdiction Necessarily,  And Criminal Jurisdiction

Ordinarily,  Coextensive With Tenure; And Accordingly There Is

Inseparably Incident To Every Manor A Court-Baron (Curia

Baronum),  Being A Court In Which The Freeholders Of The Manor Are

The Sole Judges,  But In Which The Lord,  By Himself Or More

Commonly By His Steward,  Presides."   Political Dictionary,  Word

Manor.

 

The Same Work,  Speaking Of The County Court,  Says: "The Judges

Were The Freeholders Who Did Suit To The Court." See Word Courts.

 

"In The Case Of Freeholders Attending As Suitors,  The County

Court Or Court-Baron.,  (As In The Case Of The Ancient Tenants Per

Baroniam Attending Parliament,) The Suitors Are The Judges Of The

Court,  Both For Law And For Fact,  And The Sheriff Or The Under

Sheriff In The County Court,  And The Lord Or His Steward In The

Court-Baron,  Are Only Presiding Officers,  With No Judicial

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 57

Authority."   Political Dictionary,  Word Suit.

 

"Court,  (Curtis,  Curia Aula); The Space Enclosed By The Walls Of

A Feudal Residence,  In Which The Followers Of A Lord Used To

Assemble In The Middle Ages,  To Administer Justice,  And Decide

Respecting Affairs Of Common Interest,  &C;. It Was Next Used For

Those Who Stood In Immediate Connexion With The Lord And Master,

The Pares Curiae,  (Peers Of The Court,) The Limited Portion Of

The General Assembly,  To Which Was Entrusted The Pronouncing Of

Judgment," &C;.  Encyclopedia Americana,  Word Court.

 

"In Court-Barons Or County Courts The Steward Was Not Judge,  But

The Pares (Peers,  Jurors); Nor Was The Speaker In The House Of

Lords Judge,  But The Barons Only."   Gilbert On The Court Of

Rxchequer,  Ch. 3,  P. 42.

 

Crabbe,  Speaking Of The Saxon Times,  Says:

 

"The Sheriff Presided At The Hundred Court,  * * And Sometimes Sat

In The Place Of The Alderman (Earl) In The County Court." 

Crabbe,  23.

 

The Sheriff Afterwards Became The Sole Presiding Officer Of The

County Court.

 

Sir Thomas Smith,  Secretary Of State To Queen Elizabeth,  Writing

More Than Three Hundred Years After Magna Carta,  In Describing

The Difference Between The Civil Law And The English Law,  Says:

 

"Judex Is Of Us Called Judge,  But Our Fashion Is So Divers,  That

They Which Give The Deadly Stroke,  And Either Condemn Or Acquit

The Man For Guilty Or Not Guilty,  Are Not Called Judges,  But The

Twele Men. And The Same Order As Well In Civil Matters And

Pecuniary,  As In Matters Criminal."   Smith's Commonwealth Of

England,  Ch. 9,  P. 53,  Edition Of 1621.

 

Court-Leet. "That The Leet Is The Most Ancient Court In The Land

For Criminal Matters,  (The Court-Baron Being Of No Less Antiquity

In Civil,) Has Been Pronounced By The Highest Legal Authority. *

* Lord Mansfield States That This Court Was Coeval With The

Establishment Of The Saxons Here,  And Its Activity Marked Very

Visibly Both Among The Saxons And Danes. * * The Leet Is A Court

Of Record For The Cognizance Of Criminal Matters,  Or Pleas Of The

Crown; And Necessarily Belongs To The King; Though A Subject,

Usually The Lord Of The Manor,  May Be,  And Is,  Entitled To The

Profits,  Consisting Of The Essoign Pence,  Fines,  And Amerciaments

 

"It Is Held Before The Steward,  Or Was,  In Ancient Times,  Before

The Bailiff,  Of The Lord."   Tomline's Law Dict.,  Word

Court-Leet.

 

Of Course The Jury Were The Judges In This Court,  Where Only A

"Steward" Or "Bailiff" Of A Manor Presided.

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 58

"No Cause Of Consequence Was Determined Without The King's Writ;

For Even In The County Courts,  Of The Debts,  Which Were Above

Forty Shillings,  There Issued A Justicies (Commission) To The

Sheriff,  To Enable Him To Hold Such Plea,  Where The Suitors Are

Judges Of The Law And Fact."   Gilbert's History Of The Common

Pleas,  Introduction,  P. 19.

 

"This Position" (That " The Matter Of Law Was Decided By The

King's Justices,  But The Matter Of Fact By The Pares ") "Is Wholly

Incompatible With The Common Law,  For The Jurata ( Jury)

Were The Sole Judges Both Of The Law And The Fact."   Gilbert's

History Of The Common Pleas,  P. 70,  Note.

 

"We Come Now To The Challenge: And Of Old The Suitors In Court,

Who Were Judge,  Could Not He Challenged; Nor By The Feudal Law

Could The Pares Be Even Challenged. Pares Qui Ordinariam

Jurisdictionem Habent Recusari Non Possunt; (The Peers Who Have

Ordinary Jurisdiction Cannot Be Rejected;) "But Those Suitors Who

Are Judges Of The Court,  Could Not Be Challenged; And The Reason

Is,  That There Are Several Qualifications Required By The Writ,

Viz.,  That They Be Liberos Et Legales Homines De Vincineto (Free

And Legal Men Of The Neighborhood) Of The Place Laid In The

Declaration," &C;.,  &C;.   Ditto,  P.93.

 

"Ad Questionem Juris Non Respondent Juratores." (To The Question

Of Law The Jurors Do Not Answer.) "The Annotist Says,  That This

Is Indeed A Maxim In The Civil-Law Jurisprudence,  But It Does Not

Bind An English Jury,  For By The Common Law Of Theland The Jury

Are The