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

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

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 Any One Unpresented For Favor,  Or Affection,

For Love Or Gain,  Or Any Hopes Thereof; But In All Things You Shall Present The

Truth,  The Whole Truth,  And Nothing But The Truth,  To The Best Of Your

Knowledge. So Help You God."

 

This Form Of Oath Is Doubtless Quite Ancient,  For The Essay Says "Our

Ancestors Appointed" It.   See Essay,  P. 33   34.

 

On The Obligations Of This Oath,  The Essay Says:"If It Be Asked How, 

Or In What Manner,  The (Grand) Juries Shall Inquire,  The Answer

Is Ready,  According To The Best Of Their Understandings. They Only,

Not The Judges,  Are Sworn To Search Diligently To Find Out All Treasons,

&C;.,  Within Their Charge,  And They Must And Ought To Use Their Own

Discretion In The Way And Manner Of Their Inquiry. No Directions

Can Legally Be Imposed Upon There By Any Court Or Judges; An Honest

Jury Will Thankfully Accept Good Advice From Judges,  As Their Assistants;

But They Are Bound By Their Oaths To Present The Truth,  The Whole Truth, 

And Nothing But The Truth,  To The Best Of Their Own,  Not The Judge's,

Knowledge. Neither Can They,  Without Breach Of That Oath,  Resign

Their Consciences,  Or Blindly Submit To The Dictates Of Others; And

Therefore Ought  To Receive Or Reject Such Advices,  As They Judge Them

Good Or Bad. * *Nothing Can Be More Plain And Express Than The

Words Of The Oath Are To This Purpose. The Jurors Need Not Search The

Law Books,  Nor Tumble Over Heaps Of Old Records,  For The Explanation

Of Them. Our Greatest Lawyers May From Hence Learn More Certainly

Our Ancient Law In This Case,  Than From All The Books In Their Studies.

The Language Wherein The Oath Is Penned Is Known And Understood By

Every Man,  And The Words In It Have The Same Signification As They Have

Wheresoever Else They Are Used. The Judges,  Without Assuming To

Themselves A Legislative Power,  Cannot Put A New Sense Upon Them, 

Other Than According To Their Genuine,  Common Meaning. They Cannot

Magisterially Impose Their Opinions Upon The Jury,  And Make Them

Forsake The Direct Words Of Their Oath,  To Pursue Their Glosses. The 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 3 Pg 71

Grand Inquest Are Bound To Observe Alike Strictly Every Part Of Their

Oath,  And To Use All Just And Proper  Ways Which May Enable Them To

Perform It; Otherwise It Were To Say,  That After Men Had Sworn To

Inquire Diligently After The Truth,  According To The Best Of Their

Knowledge,  They Were Bound To Forsake All The Natural And Proper

Means Which Their Understandings Suggest For The Discovery Of It, 

If It Be Commanded By The Judges."   Lord Somers' Essay On Grand

Juries,  P. 88.

 

What Is Here Said So Plainly And Forcibly Of The Oath And Obligations Of

Grand Juries,  Is Equally Applicable To The Oath And Obligations Of

Petit Juries. In Both Cases The Simple Oaths Of The Jurors,  And Not The

Instructions Of The Judges,  Nor The Statutes Of Kings Nor Legislatures,

Are Their Legal Guides To Their Duties. [26]

 

Section Iv. The Right Of Juries To Fix The Sentence.

 

The Nature Of The Common Law Courts Existing Prior To Magna

Carta,  Such As The County Courts,  The Hundred Courts,  The Court-Leet,

And The Court-Baron,  All Prove,  What Has Already Been Proved From

Magna Carta,  That,  In Jury Trials,  The Juries Fixed The Sentence;

Because,  In Those Courts,  There Was No One But The Jury Who Could Fix It,

Unless It Were The Sheriff,  Bailiff,  Or Steward; And No One Will Pretend That

It  Was Fixed By Them. The Juries Unquestionably Gave The "Judgment"

In Both Civil And Criminal Cases.

 

That The Juries Were To Fix The Sentence Under Magna Carta,  Is Also

Shown By Statutes Subsequent To Magna Carta. A Statute Passed

Fifty-One Years After Magna Carta,  Says That A Baker,  For Default In

The Weight Of His Bread,  "Debeat Amerciari Vel Subire Judicium Pilloae,"

 

That Is,  "Ought To Be Amerced,  Or Suffer The Sentence Of The Pillory."

And That A Brewer,  For "Selling Ale,  Contrary To The Assize," "Debeat

Amerciari,  Vel Pati Judicium Tumbrelli;" That Is,  "Ought To Be

Amerced,  Or Suffer Judgment Of The Tumbrel."   51 Henry Iii.,  St. 6. (1266.)

 

If The King (The Legislative Power) Had Had Authority To Fix The

Punishments Of These Offences Imperatively,  He Would Naturally

Have Said These Offenders Shall Be Amerced,  And Shall Suffer

Judgment Of The Pillory And Tumbrel,  Instead Of Thus Simply

Expressing The Opinion That They Ought To Be Punished In That Manner.

 

The Statute Of Westminster,  Passed Sixty Years After Magna Carta, 

Provides That,"No City,  Borough,  Nor Town,  Nor Any Man,  Be Amerced, 

Without Reasonable Cause,  And According To The Quantity Of The Trespass;

That Is To Say,  Every Freeman Saving His Freehold,  A Merchant Saving

His Merchandise,  A Villein His Waynage,  And That By His Or Their

Peers." 3 Edward I.,  Ch. 6. (1275.)

 

The Same Statute (Ch. 18) Provides Further,  That,"Forasmuch As The

Common Fine And Amercement Of The Whole County In Eyre Of The

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 3 Pg 72

Justices For False Judgments,  Or For Other Trespass,  Is Unjustly

Assessed By Sheriff's And Baretors In The Shires,  So That The Sum Is Many

Times Increased,  And The Parcels Otherwise Assessed Than They Ought To

Be,  To The Damage Of The People,  Which Be Many Times Paid To The Sheriffs

And Baretors,  Which Do Not Acquit The Payers; It Is Provided,  And The

King Wills,  That From Henceforth Such Sums Shall Be Assessed Before

The Justices In Eyre,  Afore Their Departure,  By The Oath Of Knights

And Other Honest Men,  Upon All Such As Ought To Pay; And The Justices

Shall Cause The Parcels To Be Put Into Their Estreats,  Which Shall Be

Delivered Up Unto The Exchequer,  And Not The Whole Sum."   St. 3 Edward I.,

Ch. 18,  (1275.) [27]

 

The Following Statute,  Passed In 1341,  One Hundred And Twenty-Five

Years After Magna Carta,  Providing For The Trial Of Peers Of The Realm, 

And The King's Ministers,  Contains A Recognition Of The Principle Of

Magna Carta,  That The Jury Are To Fix The Sentence.

 

"Whereas Before This Time The Peers Of The Land Have Been Arrested

And Imprisoned,  And Their Temporalities,  Lands,  And Teneiments,

Goods And Cattels,  Asseized In The King's Hands,  And Some Put To

Death Without Judgment Of Their Peers: It Is Accorded And Assented,

That No Peer Of The Land,  Officer,  Nor Other,  Because Of His Office, 

Nor Of Things Touching His Office,  Nor By Other Cause,  Shall Be

Brought In Judgment To Lose His Temporalities,  Lands,  Tenements, 

Goods And Cattels,  Nor To Be Arrested,  Nor Imprisoned,  Outlawed, 

Exiled,  Nor Forejudged,  Nor Put To Answer,  Nor Be Judged,  But By

Award (Sentence) Of The Said Peers In Parliament."   15 Edward Iii., 

St. 1,  Sec. 2.

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 4 Pg 73

 

"That In Every Parliament,  At The Third Day Of Every Parliament.

The King Shall Take In His Hands The Offices Of All The Ministers

Aforesaid," (That Is,  "The Chancellor,  Treasurer,  Barons,  And

Chancellor Of The Exchequer,  The Justices Of The One Bench And Of

The Other,  Justices Assigned In The Country,  Steward And Chamberlain

Of The King's House,  Keeper Of The Privy Seal,  Treasurer Of