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

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.

 

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.

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 63

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

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 The Verdict Of The Jury." 

Same,  Vol. 1,  Ch. 12,  P. 329.

 

Also,  "Among The Gothic Nations Of Modern Europe,  The Custom Of

Deciding Lawsuits By A Jury Seems To Have Prevailed Universally;

First In The Allodial Courts Of The County,  Or Of The Hundred,

And Afterwards In The Baron-Courts Of Every Feudal Superior." 

Same,  Vol. 2,  P. 296.

 

Palgrave Says That In Germany "The Graff (Gerefa,  Sheriff) Placed

Himself In The Seat Of Judgment,  And Gave The Charge To The

Assembled Free Echevins,  Warning Them To Pronounce Judgment

According To Right And Justice."   2 Palgrave,  147.

 

Also,  That,  In Germany,  "The Echevins Were Composed Of The

Villanage,  Somewhat Obscured In Their Functions By The Learning

Of The Grave Civilian Who Was Associated To Them,  And Somewhat

Limited By The Encroachments Of Modern Feudality; But They Were

Still Substantially The Judges Of The Court."   Same,  148.

 

Palgrave Also Says,  "Scotland,  In Like Manner,  Had The Laws Of

Burlaw,  Or Birlaw,  Which Were Made And Determined By The

Neighbors,  Elected By Common Consent,  In The Burlaw Or Birlaw

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 64

Courts,  Wherein Knowledge Was Taken Of Complaints Between

Neighbor And Neighbor,  Which Men,  So Chosen,  Were Judges And

Arbitrators,  And Called Birlaw Men."   1 Palgrave's Rise,  &C;.,

P. 80.

 

But,  In Order To Understand The Common Law Trial By Jury,  As It

Existed Prior To Magna Carta,  And As It,  Was Guaranteed. By That

Instrument,  It Is Perhaps Indispensable To Understand More Fully

The Nature Of The Courts In Which Juries Sat,  And The Extent Of

The Powers Exercised By Juries In Those Courts. I Therefore Give

In A Note Extended Extracts,  On These Points,  From Stuart On The

Constitution Of England,  And From Blackstone's Commentaries.

[20]

 

That All These Courts Were Mere Courts Of Conscience,  In Which

The Juries Were Sole Judges,  Administering Justice According To

Their Own Ideas Of It,  Is Not Only Shown By The Extracts Already

Given,  But Is Explicitly Acknowledged In The Following One,  In

Which The Modern "Courts Of Conscience" Are Compared With The

Ancient Hundred And County Courts,  And The Preference Given To

The Latter,  On The Ground That The Duties Of The Jurors In The

One Case,  And Of The Commissioners In The Other,   Are The Same,

And That The Consciences Of A Jury Are  A Safer  And Purer

Tribunal Than The Consciences Of Individuals Specially Appointed,

And Holding Permanent Offices.

 

"But There Is One Species Of Courts Constituted By Act Of

Parliament,  In The City Of London,  And Other Trading And Populous

Districts,  Which,  In Their Proceedings,  So Vary From The Course

Of The Common Law,  That They Deserve A More Particular

Consideration. I Mean The Court Of Requests,  Or Courts Of

Conscience,  For The Recovery Of Small Debts. The First Of These

Was Established In London So Early As The Reign Of Henry Viii.,

By An Act Of Their Common Council; Which,  However,  Was Certainly

Insufficient For That Purpose,  And Illegal,  Till Confirmed By

Statute 3 Jac. I.,  Ch. 15,  Which Has Since Been Explained And

Amended By Statute 14 Geo. Ii.,  Ch. 10. The Constitution Is This:

Two Aldermen And Four Commoners Sit Twice A Week To Hear All

Causes Of Debt Not Exceeding The Value Of Forty Shillings; Which

They Examine In A Summary Way,  By The Oath Of The Parties Or

Other Witnesses,  And Make Such Order Therein As Is Consonant To

Equity And Good Conscience.I * *  * Divers Trading Towns And

Other Districts Have Obtained Acts Of Parliament,  For

Establishing In Them Courts Of Conscience Upon Nearly The Same

Plan As That In The City Of London.

 

"The Anxious Desire That Has Been Shown To Obtain These Several

Acts,  Proves Clearly That The Nation,  Ingeneral,  Is Truly

Sensible Of The Great Inconvenience Arising From The Disuse Of

The Ancient County And Hundred Courts,  Wherein Causes Of This

Small Value Were Always Formerly Decided With Very Little Trouble

And Expense To The Parties. But It Is To Be Feared That The

General Remedy,  Which Of Late Hath Been Principally Applied To

This Inconvenience,  (The Erecting These New Jurisdictions,) May

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 65

Itself Be Attended In Time With Very Ill Consequences; As The

Method Of Proceeding Therein Is Entirely In Derogation Of The

Common Law; And Their Large Discretionary Powers Create A Petty

Tyranny In A Set Of Standing Commissioners; And As The Disuse Of

The Trial By Jury May Tend To Estrange The Minds Of The People

From That Valuable Prerogative Of Englishmen,  Which Has Already

Been More Than Sufficiently Excluded In Many Instances. How

Much Rather Is It To Be Wished That The Proceedings In The County

And Hundred Courts Could Be Again Revived,  Without Burdening

The Freeholders With Too Frequent And Tedious Attendances; And

At The Same Time Removing The Delays That Have Insensibly Crept

Into Their Proceedings,  And The Power That Either Party Has Of

Transferring At Pleasure Their Suits To The Courts At Westminster!

And We May,  With Satisfaction,  Observe,  That This Experiment Has

Been Actually Tried,  And Has Succeeded In The Populous County Of

Middlesex,  Which Might Serve As An Example For Others. For By

Statute 23 Geo. Ii.,  Ch. 33,  It Is Enacted:

 

1. That A Special County Court Shall Be Held At Least Once In A

Month,  In Every Hundred Of The County Of Middlesex,  By The County

Clerk.

 

2. That Twelve Freeholders Of That Hundred,  Qualified To Serve On

Juries,  And Struck By The Sheriff,  Shall Be Summoned To Appear At

Such Court By Rotation; So As None Shall Be Summoned Oftener Than

Once A Year.

 

3. That In All Causes Not Exceeding The Value Of Forty Shillings,

The County Clerk And Twelve Suitors (Jurors) Shll Proceed In A

Summary Way,  Examining The Parties And Witnesses On Oath,

Without The Formal Process Anciently Used; And Shall Make

Such Order Therein As They Shall Judge Agreeable To Conscience."

3 Blackstone,  81   83.

 

What Are These But Courts Of Conscience? And Yet Blackstone Tells

Us They Are A Revival Of The Ancient Hundred And County Courts.

And What Does This Fact Prove,  But That The Ancient Common Law

Courts,  In Which Juries Sat,  Were Mere Courts Of Conscience?

It Is Perfectly Evident That In All These Courts The Jurors Were

The Judges,  And Determined All Questions Of Law For Themselves;

Because The Only Alternative To That Supposition Is,  That The

Jurors Took Their Law From Sheriffs,  Bailiffs,  And Stewards,  Of

Which There Is Not The Least Evidence In History,  Nor The Least

Probability In Reason. It Is Evident,  Also,  That They Judged

Independently Of The Laws Of The King,  For The Reasons Before

Given,  Viz.,  That The Authority Of The King Was Held In Very,

Little Esteem; And,  Secondly,  That The Laws Of The King (Not

Being Printed,  And The People Being Unable To Read Them If They

Had Been Printed)