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

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

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

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 66

[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

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:

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 67

 

"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

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 Sword Of Justice Until The Humblest Of His

Subjects Placed the Weapon In his Hand."   1 Palgrave'S Rise And

Progress Of The English Constitution,  274   7.

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 68

Coke Says,

 

"The Court Of The County Is No Court Of Record,  [19]

And The Suitors Are The Judges Thereof."   4 Inst.) 266.

 

Also,  "The Court Of The Hundred is No Court Of Record,  And The

Suitors Be Thereof Judges."   4 Inst.,  267.

 

 

 

 

 

Also,  "The Court-Baron Is A Court Incident To Every Manor,  And Is

Not Of Record,  And The Suitors Be Thereof Judges."   4 Inst.,

268.

 

Also,  "The Court Of Ancient Demesne Is In the Nature Of A

Court-Baron,  Wherein The Suitors Are Judges,  And Is No Court Of

Record."   4 Inst.,  269.

 

Millar Says,

 

"Some Authors Have Thought That Jurymen Were Originally

Compurgators,  Called by A Defendant To Swear That They

Believed him Innocent Of The Facts With Which He Was Charged. . .

But . . . Compurgators  Were Merely Witnesses; Jurymen Were,  In

Reality,  Judges. The Former Were Called to Confirm The Oath Of

The Party By Swearing,  According to Their Belief,  That He Had

Told The Truth,  (In His Oath Of Purgation;) The Latter Were

Appointed to Try,  By Witnesses,  And By All Other Means Of Proof,

Whether He  Was Innocent Or Guilty. Juries Were Accustomed to

Ascertain The Truth Of Facts,  By The Defendant'S Oath Of

Purgation,  Together With That Of His Compurgators. . . Both Of

Them (Jurymen And Compurgators) Were Obliged to Swear That They

Would Tell Truth.

 

According to The Simple Idea Of Our Forefathers,  Guilt Or Innocence

Was Regarded as A Mere Matter  Of Fact; And It Was Thought That No

Man,  Who Knew The Real Circumstances Of A Case,  Could Be At A

Loss To Determine Whether The Culprit Ought To Be Condemned or

 Acquitted."   1 Millar'S Hist. View Of Eng. Gov.,  Ch. 12,  P. 332 - 4.

 

Also,  "The Same Form  Of Procedure,  Which Took Place In the

Administration Of Justice Among The Vassals Of A Barony,  Was

Gradually Extended to The Courts Eld In the Trading towns." 

Same,  P. 335.

 

Also,  "The Same Regulation,  Concerning the Distribution Of

Justice By The Intervention Of Juries,  . . .Were Introduced into

The Baron Courts Of The King,  As Into Those Of The Nobility,  Or

Such Of His Subjects As Retained their Allodial Property." 

Same,  P. 337.

 

Also,  "This Tribunal" (The Aula Regis,  Or King'S Court,  Afterwards 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 69

Divided into The Courts Of King'S Bench,  Common Pleas,

And Exchequer) "Was Properly The Ordinary Baron-Court Of The

King; And,  Being in the Same Circumstances With The Baron Courts

Of The Nobility,  It Was Under The Same Necessity Of Trying causes

By The Intervention Of A Jury."   Same,  Vol. 2,  P. 292.

 

Speaking of The Times Of Edward The First,  (1272 To 1307,) Millar

Says:

 

"What Is Called the Petty Jury Was Therefore Introduced into

These Tribunals,  (The King'S Bench,  The Common Pleas,  And The

Exhequer,) As Well As Into Their Anxiliary Courts Employed to

Distribute Justice In the Circuits; And Was Thus Rendered

Essentially Necessary In determining causes Of Every Sort,

Whether Civil,  Criminal,  Or Fiscal."   Same,  Vol. 2,  P. 293-4.

 

Also,  "That This Form Of Trial (By Jury) Obtained universally In

All The Feudal Governments,  As Well As In that Of Eng-1And,  There

Can Be No Reason To Doubt. In france,  In germany,  And In other

European Countries,  Where We Have Any Accounts Of The

Constitution And Procedure Of The Feudal Courts,  It Appears That

Lawsuits Of Every Sort Concerning the Freemen Or Vassals Of A

Barony,  Were Determined by The Pares Curiae (Peers Of The Court;)

And That The Judge Took Little More Upon Him Than To Regulate The

Method Of Proceeding,  Or To Declare