An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗
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"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 56To 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 57Authority." 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
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