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

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

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

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 70

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

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

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 71

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) Must Have Been In a Great Measure Unknown To

Them,  And Could Have Been Received by Them Only On The Authority

Of The Sheriff,  Bailiff; Or Steward. If Laws Were To Be Received

By Them On The Authority Of These Officers,  The Latter Would Have

Imposed such Laws Upon The People As They Pleased.

 

These Courts,  That Have Now Been Described,  Were Continued in

Full Power Long After Magna Carta,  No Alteration Being made In

Them By That Instrument,  Nor In the Mode Of Administering justice

In Them.

 

There Is No Evidence Whatever,  So Far As I Am Aware,  That The

Juries Had Any Less Power In the Courts Held By The King'S

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 72

Justices,  Than In those Held By Sheriffs,  Bailiff,  And Stewards;

And There Is No Probability Whatever That They Had. All The

Difference Between The Former Courts And The Latter Undoubtedly

Was,  That,  In the Former,  The Juries Had The Benefit Of The

Advice And Assistance Of The Justices,  Which Would,  Of Course,  Be

Considered valuable In difficult Cases,  On Account Of The

Justices Being regarded as More Learned,  Not Only In the Laws Of

The King,  But Also In the Common Law,  Or "Law Of The Land."

 

The Conclusion,  Therefore,  I Think,  Inevitably Must Be,  That

Neither The Laws Of The King,  Nor The Instructions Of His

Justices,  Had Any Authority Over Jurors Beyond What The Latter

Saw Fit To Accord To Them. And This View Is Confirmed by This

Remark Of Hallam,  The Truth Of Which All Will Acknowledge:

 

"The Rules Of Legal Decision,  Among A Rude People,  Are Always

Very Simple; Not Serving much To Guide,  Far Less To Control The

Feelings Of Natural Equity."   2 Middle Ages,  Ch. 8,  Part 2,  P. 465.

 

It Is Evident That It Was In this Way,  By The Free And Concurrent

Judgments Of Juries,  Approving and Enforcing certain Laws And

Rules Of Conduct,  Corresponding to Their Notions Of Right And

Justice,  That The Laws And Customs,  Which,  For The Most Part,

Made Up The Common Law,  And Were Called,  At That Day,  "The

Good Laws,  And Good Customs," And "The Law Of The Land," Were

Established. How Otherwise Could They Ever Have Become

Established,  As Blackstone Says They Were,  "By Long And

Immemorial Usage,  And By Their Universal Reception Throughout

The Kingdom,"- 1 Blackstone,63-67.,  When,  As The Mirror Says, 

"Justice Was So Done,  That Every One So Judged his Neighbor,  By

Such Judgment As A Man Could Not Elsewhere Receive In the Like

Cases,  Until Such Times As The Customs Of The Realm,  Were Put In

Writing and Certainly Published?"

 

 

 

 

 

The Fact That,  In that Dark Age,  So Many Of The Principles Of

Natural Equity,  As Those Then Embraced in the Common Law,

Should Have Been So Uniformly Recognized and Enforced by Juries, 

As To Have Become Established by General Consent As "The Law

Of The Land;" And The Further Fact That This "Law Of The Land" Was

Held So Sacred that Even The King could Not Lawfully Infringe Or

Alter It,  But Was Required to Swear To Maintain It,  Are Beautiful

And Impressive Illustrations Of The Troth That Men'S Minds,  Even

In The Comparative Infancy Of Other Knowledge,  Have Clear And

Coincident Ideas Of The Elementary Principles,  And The Paramount

Obligation,  Of Justice. The Same Facts Also Prove That The Common

Mind,  And The General,  Or,  Perhaps,  Rather,  The Universal

Conscience,  As Developed in the Untrammeled judgments Of Juries, 

May Be Safely Relied upon For