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

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

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,

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 63

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.

 

"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.

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 64

"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 Judges As Well Of The Matter Of Law,  As Of The Fact,  With

This Difference Only,  That The [A Saxon Word] Or Judge On The

Bench Is To Give Them No Assistance In determining the Matter Of

Fact,  But If They Have Any Doubt Among Themselves Relating to

Matter Of Law,  They May Then Request Him To Explain It To Them,

Which When He Hath Done,  And They Are Thus Become Well

Informed,  They,  And They Only,  Become Competent Judges Of The

Matter Of Law. And This Is The Province Of The Judge On The Bench, 

Namely,  To Show,  Or Teach The Law,  But Not To Take Upon Him The

Trial Of The Delinquent,  Either In matter Of Fact Or In matter Of Law."

(Here Various Saxon Laws Are Quoted.) "In Neither Of These

Fundamental Laws Is There The Least Word,  Hint,  Or Idea,  That The

Earl Or Alderman (That Is To Say,  The Prepositus (Presiding

Officer) Of The Court,  Which Is Tantamount To The Judge On The

Bench) Is To Take Upon Him To Judge The Delinquent In any Sense

Whatever,  The Sole Purport Of His Office Is To Teach The Secular

Or Worldly Law."   Ditto,  P. 57,  Note.

 

"The Administration Of Justice Was Carefully Provided for; It Was

Not The Caprice Of Their Lord,  But The Sentence Of Their Peers,

That They Obeyed. Each Was The Judge Of His Equals,  And Each By

His Equals Was Judged."   Introd. To Gilbert On Tenures,  P. 12.

 

Hallam Says:

 

"A Respectable Class Of Free Socagers,  Having,  In general,  Full

Rights Of Alienating their Lands,  And Holding them Probably At

A Small Certain Rent From The Lord Of The Manor,  Frequently

Occur In domes-Day Book. * * They Undoubtedly Were Suitors

To The Court-Baron Of The Lord,  To Whose Soc,  Or Right Of

Justice,  They Belonged. They Where Consequently Judges In civil

Causes,  Determined before The Manorial Tribunal."   2 Middle

Ages,  481.

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 65

 

Stephens Adopts As Correct The Following quotations From Blackstone:

"The Court-Baron Is A Court Incident To Every Manor In the Kingdom, 

To Be Holden By The Steward Within The Said Manor." * *

 

It "Is A Court Of Common Law,  And It Is The Court Before The

Freeholders Who Owe Suit And Service To The Manor," (Are Bound To

Serve As Jurors In the Courts Of The Manor,) "The Steward Being

Rather The Registrar Than The Judge. * * The Freeholders' Court

Was Composed of The Lord'S Tenants,  Who Were The Pares(Equals) Of

Each Other,  And Were Bound By Their Feudal Tenure To Assist Their

Lord In the Dispensation Of Domestic Justice. This Was Formerly

Held Every Three Weeks; And Its Most Important Business Was To

Etermine,  By Writ Of Right,  All Controversies Relating to The Right

Of Lands Within The Manor."   3 Stephens' Commentaries,  392  3.

3 Blackstone,  32-33.

 

"A Hundred court Is Only A Larger Court-Baron,  Being held For All

The Inhabitants Of A Particular Hundred,  Instead Of A Manor. The

Free Suitors ( Jurors) Are Here Also The Judges,  And The Steward

The Register."   3 Stephens,  394. 3 Blackstone,  33.

 

"The County Court Is A Court Incident To The Jurisdiction Of The

Sheriff. * * The Freeholders Of The County Are The Real Judges In

This Court,  And The Sheriff Is The Ministerial Officer."   3

Stephens,  395   6. 3 Blackstone,  35-6.

 

Blackstone Describes These Courts,  As Courts "Wherein Injuries

Were Redressed in an Easy And Expeditious Manner,  By The Suffrage

Of Neighbors And Friends."   3 Blackstone,  30.

 

"When We Read Of A Certain Number Of Freemen Chosen By The

Parties To Decide In a Dispute   All Bound By Oath To Vote In

Foro Conscientia   And That Their Decision,  Not The Will Of The

Judge Presiding,  Ended the Suit,  We At Once Perceive That A Great

Improvement Has Been Made In the Old Form Of Compurgation   An

Improvement Which Impartial Observation Can Have No Hesitation

To Pronounce As Identical In its Main Features With The Trial By

Jury."   Dunham'S Middle Ages,