An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗
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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
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 59Rights 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.
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, Sec. 2, B. 2, Ch. 1. 57 Lardner's
Cab. Cyc., 60.
"The Bishop And The Earl Or, In His Absence, The Gerefa,
(Sheriff,) And Sometimes Both The Earl And The Gerefa, Presided
At The Schyre-Mote (County Court); The Gerefa (Sheriff) Usually
Alone Presided At The Mote (Meeting Or Court) Of The Hundred. In
The Cities And Towns Which Were Not Within Any Peculiar
Jurisdiction, There Was Held, At Regular Stated Intervals, A
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 60Burgh Mote, (Borough Court,) For The Administration Of Justice,
At Which A Gerefa, Or A Magistrate Appointed By The King,
Presided." Spence's Origin Of The Laws And Political
Institutions Of Modern Europe, P. 444.
"The Right Of The Plaintiff And Defendant, And Of The Prosecutor
And Criminal, To Challenge The Judices, (Judges.) Or Assessors,
[17] Appointed To Try The Cause In Civil Matters, And To Decide
Upon The Guilt Or Innocence Of The Accused In Criminal Matters,
Is Recognized In The Treatise Called The Laws Of Henry The First;
But I Cannot Discover, From The Anglo-Saxon Laws Or Histories,
That Before The Conquest The Parties Had Any General Right Of
Challege; Indeed, Had Such Right Existed, The Injunctions To All
Persons Standing In The Situation Of Judges (Jurors) To Do Right
According To Their Conscience, Would Scarcely Have Been So
Frequently And Anxiously Repeated." Spence, 456.
Hale Says:
"The Administration Of The Common Justice Of The Kingdom Seems
To Be Wholly Dispensed In The County Courts, Hundred Courts, And
Courts-Baron; Except Some Of The Greater Crimes Reformed By The
Laws Of King Henry I., And That Part Thereof Which Was Sometimes
Taken Up By The Justitiarius Angliae.
This Doubtless Bred Great Inconvenience, Uncertainty, And Variety
In The Laws, Viz.:
"First, By The Ignorance Of The Judges, Which Were The
Freeholders Of The County.* *
"Thirdly, A Third Inconvenience Was, That All The Business Of Any
Moment Was Carried By Parties And Factions. For The Freeholders
Being Generally The Judges, And Conversing One Among Another, And
Being As It Were The Chief Judges, Not Only Of The Fact, But Of
The Law; Every Man That Had A Suit There, Sped According As He
Could Make Parties." 1 Hale's History Of The Common Law, P.
246.
"In All These Tribunals," (County Court, Hundred Court, &C;..)
"The Judges Were The Free Tenants, Owing Suit To The Court, And
Afterwards Called Its Peers." 1 Lingard's History Of England,
488.
Henry Calls The Twelve Jurors "Assessors," And Says:
"These Assessors, Who Were In Reality Judges, Took A Solemn Oath,
That They Would Faithfully Discharge The Duties Of Their Office,
And Not Suffer An Innocent Man To Be Condemned, Nor Any Guilty
Person To Be Acquitted." 3 Henry's History Of Great Britain,
346.
Tyrre11 Says:
"Alfred Cantoned His Kingdom, First Into Trihings And Lathes, As
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 61They Are Still Called In Kent And Other Places, Consisting Of
Three Or Four Hundreds; In Which, The Freeholders Being Judges,
Such Causes Were Brought As Could Not Be Determined In The
Hundred Court." Tyrrell's Introduction To The History Of
England, P. 80.
Of The Hundred Court He Says:
"In This Court Anciently, One Of The Principal Inhabitants,
Called The Alderman, Together With The Barons Of The Hundred [18]
Id Est The Freeholders Was Judge." Ditto, P. 80.
Also He Says:
"By A Law Of Edward The Elder, 'Every Sheriff Shall Convene The
People Once A Month, And Do Equal Right To All, Putting An End To
Controversies At Times Appointed.'" Ditto, P. 86.
A Statute, Emphatically Termed The ' Grand Assize,' Enabled The
Defendant, If He Thought Proper, To Abide By The Testimony Of The
Twelve Good And Lawful Knights, Chosen By Four Others Of The
Vicinage, And Whose Oaths Gave A Final Decision To The Contested
Claim,." 1 Palgrave's Rise And Progress Of The English
Commonwealth, 261.
"From The Moment When The Crown Became Accustomed To The
'Inquest,' A Restraint Was Imposed Upon Every Branch Of The
Prerogative. The King Could Never Be Informed Of His Rights, But
Through The Medium Of The People. Every 'Extent' By Which He
Claimed The Profits And Advantages Resulting From The Casualties
Of Tenure, Every Process By Which He Repressed The Usurpations Of
The Baronage, Depended Upon The 'Good Men And True' Who Were
Impaneled To 'Pass' Between The Subject And The Sovereign; And
The Thunder Of The Exchequer At Westminster Might Be Silenced By
The Honesty, The Firmness, Or The Obstinacy, Of One Sturdy Knight
Or Yeoman In The Distant Shire.
Taxation Was Controlled In The Same Manner By The Voice Of Those
Who Were Most Liable To Oppression. * * A Jury Was Impaneled To
Adjudge The Proportion Due To The Sovereign; And This Course Was
Not Essentially Varied, Even After The Right Of Granting Aids To
The Crown Was Fully Acknowledged To Be Vested In The Parliament
Of The Realm. The People Taxed Themselves; And The Collection Of
The Grants Was Checked And Controlled, And, Perhaps, In Many
Instances Evaded, By These Virtual Representatives Of The
Community.
The Principle Of The Jury Was, Therefore, Not Confined To Its
Mere Application As A Mode Of Trying Contested Facts, Whether In
Civil Or Criminal Cases; And, Both In Its Form And In Its
Consequences, It Had A Very Material Influence Upon The General
Constitution Of The Realm. * *The Main-Spring Of The Machinery Of
Remedial Justice Existed In The Franchise Of The Lower And Lowest
Orders Of The Political Hierarchy. Without The Suffrage Of The
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 62Yeoman, The Burgess, And The Churl, The Sovereign Could Not
Exercise The Most Important And Most Essential Function Of
Royalty; From Them He Received The Power Of Life And Death; He
Could Not Wield The
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