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

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

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 4 (The Right Of Juries To Fix The Sentence) Pg 82

Obtained to The Sentence Pronounced by The Peers,  Does Not Imply

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,

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 4 (The Right Of Juries To Fix The Sentence) Pg 83

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

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 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 4 (The Right Of Juries To Fix The Sentence) Pg 84

Of The House Of Commons Said As Follows:

 

"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,  In parliament Assembled,  And Of All The Commons

Of Great Britain,  Demand Judgment (Sentence) Of Your

Lordships Against Thomas,  Earl Of Macclesfield,  For The

Said High Crimes And Misdemeanors.'

 

"Then The Lord Chief Justice King,  Speaker Of The House

Of Lords,  Said: 'Mr. Speaker,  The Lords Are Now Ready

To Proceed to Judgment In the Case By You Mentioned.'

 

"Thomas,  Earl Of Macclesfielg,  The Lords Have

Unanimously Found You Guilty Of High Crimes And

Misdemeanors,  Charged on You By The Impeachment Of

The House Of Commons,  And Do Now,  According to Law, 

Proceed to Judgment Against You,  Which I Am Ordered

To Pronounce. Their Lordships' Judgment Is,  And This High

Court Doth Adjudge,  That You,  Thomas,  Earl Of

Macclesfield,  Be Fined in the Sum Of Thirty Thousand

Pounds Unto Our Sovereign Lord The King; And That You

Shall Be Imprisoned in the Tower Of London,  And There

Kept In safe Custody,  Until Yon Shall Pay The Said Fine.'"

6 Hargrave'S State Trials,  762   3   4.

 

This Case Shows That The Principle Of Magna Carta,  That

A Man Should Be Sentenced only By His Peers,  Was In force, 

And Acted upon As Law,  In england,  So Lately As 1725,  (Five

Hundred years After Magna Carta,) So Far As It Applied to A

Peer Of The Realm,  A Severe Punishment," Ect.,  Ect.

 

But The Same Principle,  On This Point,  That Applies To A Peer

Of The Realm,  Applies To Every Freeman. The Only

Difference Between The Two Is,  That The Peers Of The Realm

Have Had Influence Enough To Preserve Their Constitutional

Rights; While The Constitutional Rights Of The People Have Been

Trampled upon And Rendered obsolete By The Usurpation And

Corruption Of The Government And The Courts.

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 (The Oaths Of Judges) Pg 85

As Further Proof That The Legislation Of The King,  Whether

Enacted with Or Without The Assent And Advice Of His Parliaments,

Was Of No Authority Unless It Were Consistent With The Common