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

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."

 

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

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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 Into The King's Hands."

 

Also,  In The Same Case,  Sir John Holt,  Sir William Burgh,  Sir John

Cary,  Sir Roger Fulthorpe,  And John Locton,  "Were By The Lords

Temporal,  By The Assent Of The King,  Adjudged To Be Drawn And

Hanged,  As Traitors,  Their Heirs Disinherited,  And Their Lands And

Tenements,  Goods And Chattels,  To Be Forfeited To The King."

 

Also,  In The Same Case,  John Blake,  "Of Council For The King," And

Thomas Uske,  Under Sheriff Of Middlesex,  Having Been Convicted

Of Treason,  "The Lords Awarded,  By Assent Of The King,  That They

Should Both Be Hanged And Drawn As Traitors,  As Open Enemies To

The King And Kingdom,  And Their Heirs Disinherited Forever,  And

Their Lands And Tenements,  Goods And Chattels,  Forfeited To The King."

 

Also,  "Simon Burleigh,  The King's Chamberlain," Being Convicted

Of Treason,  "By Joint Consent Of The King And The Lords,  Sentence

Was Pronounced Against The Said Simon Burleigh,  That He Should Be

Drawn From The Town To Tyburn,  And There Be Hanged Till He Be

Dead,  And Then Have His Head Struck From His Body."

 

Also,  "John Beauchamp,  Steward Of The Household To The King, 

James Beroverse,  And John Salisbury; Knights,  Gentlemen Of The

Privy Chamber,  Were In Like Manner Condemned."   1 Hargrave's

State Trials,  First Case.

 

Here The Sentences Were All Fixed By The Peers,  With The Assent Of

The King. But That The King Should Be Consulted,  And His Assent

Obtained To The Sentence Pronounced By The Peers,  Does Not Imply 

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Any Deficiency Of Power On Their Part To Fix The Sentence

Independently Of The King. There Are Obvious Reasons Why They

Might Choose To Consult The King,  And Obtain His Approbation Of The

Sentence They Were About To Impose,  Without Supposing Any Legal

Necessity For Their So Doing.

 

So Far As We Can Gather From The Reports Of State Trials,  Peers Of The

Realm Were Usually Sentenced By Those Who Tried Them,  With The

Assent Of The King.  But In Some Instances No Mention Is Made Of

The Assent Of The King,  As In The Case Of "Lionel,  Earl Of Middlesex,

Lord High Treasurer Of England," In 1624,  (Four Hundred Years

After Magna Carta,) Where The Sentence Was As Follows:

 

"This High Court Of Parliament Doth Adjudge,  That Lionel,  Earl Of

Middlesex,  Now Lord Treasurer Of England,  Shall Lose All His

Offices Which He Holds In This Kingdom,  And Shall,  Hereafter,  Be

Made Incapable Of Any Office,  Place,  Or Employment In The State

And Commonwealth. That He Shall Be Imprisoned In The Tower Of

London,  During The King's Pleasure. That He Shall Pay Unto Our

Sovereign Lord The King A Fine Of 50,000 Pounds. That He Shall

Never Sit In Parliament Any More,  And That He Shall Never Come

Within The Verge Of The Court."   2 Howell's Stale Trials,  1250.

 

Here Was A Peer Of The Realm,  And A Minister Of The King,  Of The

Highest Grade; And If It Were Ever Necessary To Obtain The Assent Of

The King To Sentences Pronounced By The Peers,  It Would Unquestionably

Have Been Obtained In This Instance,  And His Assent Would Have Appeared

In The Sentence.

 

Lord Bacon Was Sentenced By The House Of Lords,  (L620,) No

Mention Being Made Of The Assent Of The King.   The Sentence Is In

These Words:

 

"And,  Therefore,  This High Court Doth Adjudge,  That The Lord

Viscount St. Albans,  Lord Chancellor Of England,  Shall Undergo

Fine And Ransom Of 40,000 Pounds. That He Shall Be Imprisoned

In The Tower During The King's Pleasure. That He Shall Forever Be

Incapable Of Any Office,  Place,  Or Employment In The State Or

Commonwealth. That He Shall Never Sit In Parliament,  Nor Come

Within The Verge Of The Court."

 

And When It Was Demanded Of Him,  Before Sentence,  Whether It

Were His Hand That Was Subscribed To His Confession,  And Whether

He Would Stand To It; He Made The Following Answer,  Which Implies

That The Lords Were The Ones To Determine His Sentence. "My Lords, 

It Is My Act,  My Hand,  My Heart. I Beseech Your Lordships To Be

Merciful To A Broken Reed."   1 Hargrave's State Trials,  886   7.

 

The Sentence Against Charles The First,  (1648,) After Reciting

The Grounds Of His Condemnation,  Concludes In This Form:

 

"For All Which Treasons And Crimes,  This Court Doth Adjudge,

That He,  The Said Charles Stuart,  As A Tyrant,  Traitor,  Murderer,  And

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 4 Pg 76

Public Enemy To The Good People Of This Nation,  Shall Be  Put

To Death By The Severing His Head From His Body."

 

The Report Then Adds:

 

"This Sentence Being Read,  The President (Of The Court) Spake As

Followeth: 'This Sentence Now Read And Published,  Is The Act, 

Sentence,  Judgment And Resolution Of The Whole Court.'

1 Hargrave's State Trials,  1037.

 

Unless It Had Been The Received "Law Of The Land" That Those Who

Tried A Man Should Fix His Sentence,  It Would Have Required An Act

Of Parliament To Fix The Sentence Of Charles,  And His Sentence

Would Have Been Declared To Be "The Sentence Of The Law,"

Instead Of "The Act,  Sentence,  Judgment,  And Resolution Of

The Court."

 

But The Report Of The Proceedings In "The Trial Of Thomas,  Earl

Of Macclesfield,  Lord High Chancellor Of Great Britain, 

Before The House Of Lords,  For High Crimes And Misdemeanors

In The Execution Of His Office," In 1725,  Is So Full On This Point, 

And Shows So Clearly That It Rested Wholly With The Lords To

Fix The Sentence,  And That The Assent Of The King Was Wholly

Unnecessary,  That I Give The Report Somewhat At Length.

 

After Being Found Guilty,  The Earl Addressed The Lords,  For

A Mitigation Of Sentence,  As Follows:

 

"I Am Now To Expect Your Lordships' Judgment; And I Hope

That You Will Be Pleased To Consider That I Have Suffered

No Small Matter Already In The Trial,  In The Expense I Have

Been At,  The Fatigue,  And What I Have Suffered Otherways.

* * I Have Paid Back 10,800 Pounds Of The Money Already; I Have

Lost My Office; I Have Undergone The Censure Of Both Houses

Of Parliament,  Which Is In Itself A Severe Punishment,' "&C;.,  &C;.

 

On Being Interrupted,  He Proceeded: "My Lords,  I Submit

Whether This Be Not Proper In Mitigation Of Your Lordships'

Sentence; But Whether It Be Or Not,  I Leave Myself To Your

Lordships' Justice And Mercy; I Am Sure Neither Of Them Will Be

Wanting,  And I Entirely Submit.' * * *

 

"Then The Said Earl,  As Also The Managers,  Were Directed To

Withdraw; And The House (Of Lords) Ordered Thomas, 

Earl Of Macclesfield,  To Be Committed To The Custody Of The

Gentleman Usher Of The Black Rod; And Then Proceeded To

The Consideration  Of What Judgment," (That Is,  Sentence, 

For He Had Already Been Found Guilty,) "To Give Upon The

Impeachment Against The Said Earl."

 

"The Next Day,  The Commons,  With Their Speaker,  Being

Present At The Bar Of The House (Of Lords),  * * * The Speaker

Of The House Of Commons Said As Follows:

 

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"My Lords,  The Knights,  Citizens,  And Burgesses In

Parliament Assembled,  In The Name Of Themselves,  And Of

All The Commons Of Great Britain,  Did At This Bar Impeach

Thomas,  Earl Of Macclesfield,  Of High Crimes And

Misdemeanors,  And Did Exhibit Articles Of Impeachment

Against Him,  And Have Made Good Their Charge. I Do, 

Therefore,  In The Name Of The Knights,  Citizens,  And

Burgesses,