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

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.

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 66

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

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

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 67

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 The Preservation Of Individual Rights

In Civil Society; And That There Is No Necessity Or Excuse For That

Deluge Of  Arbitrary Legislation,  With Which The Present Age Is

Overwhelmed,   Under The Pretext That Unless Laws Be Made,  The

Law Will Not Be  Known; A Pretext,  By The Way,  Almost Universally

Used For Overturning,  Instead Of Establishing,  The Principles Of

Justice.

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 3 Pg 68

 

The Oaths That Have Been Administered To Jurors,  In England,  And

Which Are Their Legal Guide To Their Duty,  All (So Far As I Have

Ascertained Them) Corroborate The Idea That The Jurors Are To Try

All Cases On Their Intrinsic Merits,  Independently Of Any Laws

That They Deem Unjust Or Oppressive. It Is Probable That An Oath

Was Never Administered To A Jury In England,  Either In A Civil Or

Criminal Case,  To Try It According To Law.

 

The Earliest Oath That I Have Found Prescribed By Law To Be

Administered To Jurors Is In The Laws Of Ethelred,  (About The

Year 1015,) Which Require That The Jurors "Shall Swear,  With Their

Hands Upon A Holy Thing,  That They Will Condemn No Man That Is

Innocent,  Nor Acquit Any That Is Guilty."   4 Blackstone,  302.

 2 Turner's History Of The Anglo-Saxons,  155 Wilkins' Laws Of The

Anglo-Saxons,  117. Spelman's Glossary,   Word Jurata.

 

Blackstone Assumes That This Was The Oath Of The Grand Jury

4 Blackstone,  302); But There Was But One Jury At The Time This

Oath Was Ordained. The Institution Of Two Juries,  Grand And Petit, 

Took Place After The Norman Conquest.

 

Hume,  Speaking Of The Administration Of Justice In The Time Of

Alfred,  Says That,  In Every Hundred,

 

"Twelve Freeholders Were Chosen,  Who,  Having Sworn, 

Together With The Hundreder,  Or Presiding Magistrate Of That

Division,  To Administer Impartial Justice,   Proceeded To

The Examination Of That Cause Which Was Submitted To Their

Jurisdiction."   Hume,  Ch. 2.

 

By A Law Of Henry Ii.,  In 1164,  It Was Directed That The Sheriff

"Faciet Jurare Duodecim Legales Homines De Vicineto Seu De

Villa,  Quod Inde Veritatem Secundum Conscientiam Suam

Manifestabunt," (Shall Make Twelve,  Legal Men From The

Neighborhood To Swear That They Will Make Known The Truth

According To Their Conscience.)   Crabbe's History Of The

English Law,  119. 1 Reeves,  87. Wilkins,  321   323.

 

Glanville,  Who Wrote Within The Half Century Previous To

Magna Carta,  Says;

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 3 Pg 69

 

"Each Of The Knights Summoned Far This Purpose (As Jurors)

Ought To Swear That He Will Neither Utter That Which Is False,  Nor

Knowingly Conceal The Truth."   Beames' Glanville,  65.

 

Reeve Calls The Trial By Jury "The Trial By Twelve Men Sworn

To Speak The Truth."   1 Reeve's History Of The English Law,  87.

 

Henry Says That The Jurors "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 Hist. Of Great Britain,  346.

 

The Mirror Of Justices,  (Written Within A Century After

Magna Carta,) In The Chapter On The Abuses Of The Common

Law,  Says:"It Is Abuse To Use The Words,  To Their Knowledge,

In Their Oaths,  To Make The Jurors Speak Upon Thoughts,  Since

The Chief Words Of Their Oaths Be That They Speak The Truth."   P.

249.

 

Smith,  Writing In The Time Of Elizabeth,  Says That,  In Civil Suits, 

The Jury "Be Sworn To Declare The Truth Of That Issue According To

The Evidence,  And Their Conscience."   Smith's Commonwealth

Of England. Edition Of 1621,  P. 73.

 

In Criminal Trials,  He Says:

 

"The Clerk Giveth The Juror An Oath To Go Uprightly Betwixt The

Prince And The Prisoner."   Ditto,  P. 90. [24]

 

Hale Says:

 

"Then Twelve,  And No Less,  Of Such As Are Indifferent And Are

Returned Upon The Principal Panel,  Or The Tales,  Are Sworn To Try

The Same According To The Evidence."   2 Hale's History Of The

Common Law,  141.

 

It Appears From Blackstone That,  Even At This Day,  Neither In

Civil Nor Criminal Cases,  Are Jurors In England Sworn To Try Causes

According To Law. He Says Tht In Civil Suits The Jury Are "Sworn Well

And Truly To Try The Issue Between The Parties; And A True Verdict To

Give According To The Evidence."   3 Blackstone,  365.

 

"The Issue" To Be Tried Is Whether A Owes B Anything  And If So, 

How Much? Or Whether A Has In His Possession Anything That

Belongs To B; Or Whether A Has Wronged B,  And Ought To Make

Compensation; And If So,  How Much? 

 

No Statute Passed By A Legislature,  Simply As A Legislature,  Can Alter

Either Of These "Issues" In Hardly Any Conceivable Case,  Perhaps In

None. No Unjust Law Could Ever Alter Them In Any. They Are All

Mere Questions Of Natural Justice,  Which Legislatures Have No Power To

Alter,  And With Which They Have No Right To Interfere,  Further Than To

Provide For Having Them Settled By The Most Competent And Impartial

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 3 Pg 70

Tribunal That It Is Practicable To Have,  And Then For Having All Just Decisions

Enforced. And Any Tribunal,  Whether Judge Or Jury,  That Attempts To

Try These Issues,  Has No More Moral Right To Be Swerved From The

Line Of Justice,  By The Will Of A Legislature,