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

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 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 59

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.

 

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 60

Burgh 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 61

They 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 62

Yeoman,  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