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

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

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 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 3 (The Oaths Of Jurors) Pg 78

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]

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 4 (The Right Of Juries To Fix The Sentence) Pg 79

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.)

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 4 (The Right Of Juries To Fix The Sentence) Pg 80

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

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

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.

 

 

"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 The

Wardrobe,   Controllers,  And They That Be Chief Deputed to Abide Nigh

The King'S  Son,  Duke Of Cornwall,") "And So They Shall Abide Four

Or Five Days;  Except The Offices Of Justices Of The One Place Or The

Other,  Justices Assigned,  Barons Of Exchequer; So Always That They

And All Other Ministers Be Put To Answer To Every Complaint; And If

Default Be Found In any Of The Said Ministers,  By Complaint Or Other

Manner,  And Of That Attainted in parliament,  He Shall Be Punished

By Judgment Of The Peers,  And Put Out Of His Office,  And Another

Convenient Put In his Place. And Upon The Same Our Said Sovereign

Lord The King shall Do (Cause) To Be Pronounced and Made  Execution

Without Delay,  According to The Judgment (Sentence) Of The Said Peers

In The Parliament."

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 4 (The Right Of Juries To Fix The Sentence) Pg 81

Here Is An Admission That The Peers Were To Fix The Sentence,  Or

Judgment,  And The King promises To Make Execution "According to"

That Sentence.

 

And This Appears To Be The Law,  Under Which Peers Of The Realm

And The Great Officers Of The Crown Were Tried and Sentenced,  For

Four Hundred years After Its Passage,  And,  For Aught I Know,  Until This

Day.

 

The First Case Given In hargrave'S Collection Of English State

Trials,  Is That Of Alexander Nevil,  Archbishop Of York,  Robert

Vere Duke Of Ireland; Michael De La Pole,  Earl Of Suffolk,  And

Robert Tresilian,  Lord Chief Justice Of England,  With Several

Others,  Convicted of Treason,  Before "The Lords Of Parliament," In

1388. The Sentences In these Cases Were Adjudged by The "Lords

Of Parliament," In the Following terms,  As They Are Reported.

 

"Wherefore The Said Lords Of Parliament,  There Present,  As Judges

In Parliament,  In this Case,  By Assent Of The King,  Pronounced their

Sentence,  And Did Adjudge The Said Archbishop,  Duke,  And Earl,  With

Robert Tresilian,  So Appealed,  As Aforesaid,  To Be Guilty,  And

Convicted of Treason,  And To Be Drawn And Hanged,  As Traitors And

Enemies To The King and Kingdom; And That Their Heirs Should Be

Disinherited forever,  And Their Lands And Tenements,  Goods And

Chattels,  Forfeited to The King,  And That The Temporalities Of The

Archbishop Of York Should Be Taken