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

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 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 73

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 (The Oaths Of Jurors) Pg 74

 

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;

 

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

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

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 3 (The Oaths Of Jurors) Pg 75

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

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 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 3 (The Oaths Of Jurors) Pg 76

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

Line Of Justice,  By The Will Of A Legislature,  Than By The Will Of Any Other

Body Of Men Whatever. And This Oath Does Not Require Or Permit A Jury To

Be So Swerved.

 

In Criminal Cases,  Blackstone Says The Oath Of The Jury In england

Is:

 

"Well And Truly To Try,  And True Deliverance Make,  Between Our

Sovereign Lord,  The King,  And The Prisoner Whom They Have In

Charge,  And A True Verdict To Give According to The Evidence."   4

Blackstone,  355.

 

"The Issue" To Be Tried,  In a Criminal Case,  Is "Guilty," Or "Not

Guilty." The Laws Passed by A Legislature Can Rarely,  If Ever,  Have Anything

To Do With This Issue. "Guilt" Is An Intrinsic Quality Of Actions,  And Can

Neither Be Created,  Destroyed,  Nor Changed by Legislation. And No Tribunal

That Attempts To Try This Issue Can Have Any Moral Right To Declare A Man

Guilty,  For An Act That Is Intrinsically Innocent,  At The Bidding of A

Legislature,  Any More Than At The Bidding of Anybody Else. And This

Oath Does Not Require Or Permit A Jury To Do So.

 

The Words,  "According to The Evidence," Have Doubtless Been

Introduced into The Above Oaths In modern Times. They Are Unquestionably In

Violation Of The Common Law,  And Of Magna Carta,  If By Them Be

Meant Such Evidence Only As The Government Sees Fit Ft Allow To Go To The

Jury. If The Government Can Dictate The Evidence,  And Require The Jury To

Decide According to That Evidence,  It Necessarily Dictates The Conclusion To

Which They Must Arrive. In that Case The Trial Is Really A Trial By The

Government,  And Not By The Jury. The Jury Cannot Try An Issue,  Unless They

Determine What Evidence Shall Be Admitted. The Ancient Oaths,  It Will Be

Observed,  Say Nothing about "According to The Evidence." They Obviously

Take It For Granted that The Jury Try The Whole Case; And Of Course That They

Decide What Evidence Shall Be Admitted. It Would Be Intrinsically An

Immoral And Criminal Act For A Jury To Declare A Man Guilty,  Or To Declare

That One Man Owed. Money To Another,  Unless All The Evidence Were

Admitted,  Which They Thought Ought To Be Admitted,  For Ascertaining the Truth.

[25]

 

Grand Jury. If Jurors Are Bound To Enforce All Laws Passed by The

Legislature,  It Is A Very Remarkable Fact Than The Oath Of Grand Juries Does Not

Require Them To Be Governed by The Laws In finding indictments. There

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 3 (The Oaths Of Jurors) Pg 77

Have Been Various Forms Of Oath Administered to Grand Jurors; But By None Of

Them That I Recollect Ever To Have Seen,  Except Those Of The States Of

Connecticut And  Vermont,  Are They Sworn To Present Men According to Law.  

 

The English Form,  As Given In the Essay On Grand Juries,  Written

Near Two Hundred years Ago,  And Supposed to Have Been Written By Lord

Somers,  Is As Follows:

 

"You Shall Diligently Inquire,  And True Presentment Make,  Of All

Such Articles,  Matters,  And Things,  As Shall Be Given You In charge,

And Of All Other Matters And Things As Shall Come To Your Knowledge

Touching this Present Service. The King'S Council,  Your Fellows,  And Your Own,

You  Shall Keep Secret. You Shall Present No Person For Hatred or Malice;

Neither Shall You Leave