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

Ground-Work Of The Whole. And This

Appears To Be The Best Supported And Most Plausible Conjecture,

(For Certainty Is Not To Be Expected,) Of The Rise And Original

Of That Admirable System Of Maxims And Unwritten Customs Which

Is Now Known By The Name Of The Common Law,  As Extending Its

Authority Universally Over All The Realm,  And Which Is Doubtless

Of Saxon Parentage."   4 Blackstone,  412.

 

"By The Lex Terrae And Lex Regni Is Understood The Laws Of

Edward The Confessor,  Confirmed And Enlarged As They Were By William

The Conqueror; And This Constitution Or Code Of Laws Is What Even To

This Day Are Called 'The Common Law Of The Land.'"   Introduction

To Gilbert's History Of The Common Pleas,  P. 22,  Note.

 

 

 

 

 

[8] Not The Conqueror Of The English People,  (As The Friends Of

Liberty Maintain,) But Only Of Harold The Usurper.   See Hale's

History Of The Common,  Law,  Ch. 5.

 

[9] For All These Codes See Wilkins' Laws Of The Anglo-Saxons.

 

"Being Regulations Adapted To Existing Institutions,  The

Anglo-Saxon Statutes Are Concise And Technical,  Alluding To The

Law Which Was Then Living And In Vigor,  Rather Than Defining It.

The Same Clauses And Chapters Are Often Repeated Word,  For Word,

In The Statutes Of Subsequent Kings,  Showing That Enactments

Which Bear The Appearance Of Novelty Are Merely Declaratory.

Consequently The Appearance Of A Law,  Seemingly For The First

Time,  Is By No Means To Be Considered As A Proof That The Matter

Which It Contains Is New; Nor Can We Trace The Progress Of The

Anglo-Saxon Institutions With Any Degree Of Certainty,  By

Following The Dates Of The Statutes In Which We Find Them First

Noticed. All Arguments Founded On The Apparent Chronology Of The

Subjects Included In The Laws,  Are Liable To Great Fallacies.

Furthermore,  A Considerable Portion Of The Anglo-Saxon Law Was

Never Recorded In Writing. There Can Be No Doubt But That The

Rules Of Inheritance Were Well Established And,  Defined; Yet We

Have Not A Single Law,  And Hardly A Single Document From Which

The Course Of The Descent Of Land Can Be Inferred. * * Positive

Proof Cannot Be Obtained Of The Commencement Of Any Institution,

Because The First Written Law Relating To It May Possibly Be

Merely Confirmatory Or Declaratory; Neither Can The Non-Existence

Of Any Institution Be Inferred From The Absence Of Direct

Evidence. Written Laws Were Modified And Controlled By Customs

Of Which No Trace Can Be Discovered Until After The Lapse Of

Centuries,  Although Those Usages Must Have Been In Constant Vigor

During The Long Interval Of Silence."   1 Palgrave's Rise And

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 90

Progress Of The English Commonwealth,  58-9.

 

[10] Rapin Says,  "The Customs Now Practised In England Are,  For

The Most Part,  The Same As The Anglo-Saxons Brought With Them

From Germany."   Rapin's Dissertation On The Government Of The

Anglo-Saxons,  Vol. 2,  Oct Ed.,  P. 138. See Kelham's Discourse

Before Named.

 

[11] Hallam Says,  "The County Of Sussex Contains Sixty-Five

('Hundreds'); That Of Dorset Forty-Three; While Yorkshire Has

Only Twenty-Six; And Lancashire But Six."   2 Middle Ages,  391.

 

[12] Excepting Also Matters Pertaining To The Collection Of The

Revenue,  Which Were Determined In The King's Court Of Exchequer.

But Even In This Court It Was The Law "That None Be Amerced But

By His Peers."   Mirror Of Justices,  49.

 

[13] "For The English Laws,  Although Not Written,  May,  As It

Should Seem,  And That Without Any Absurdity,  Be Termed Laws,

(Since This Itself Is Law   That Which Pleases The Prince Has The

Force Of Law,) I Mean Those Laws Which It Is Evident Were

Promuulgated By The Advice Of The Nobles And The Authority Of The

Prince,  Concerning Doubts To Be Settled In Their Assembly. For If

From The Mere Want Of Writing Only,  They Should Not Be Considered

Laws,  Then,  Unquestionably,  Writing Would Seem To Confer More

Authority Upon Laws Themselves,  Than Either The Equity Of The

Persons Constituting,  Or The Reason Of Those Framing Them."  

Glanville's Preface,  P. 38. (Glanville Was Chief Justice Of Henry

Ii.,  1180.) 2 Turner's History Of The Anglo-Saxons,  280.

 

[14] Mackintosh's History Of England,  Ch. 3. Lardner's Cabinet

Cyclopedia,  286.

 

[15] If The Laws Of The King Were Received As Authoritative By

The Juries,  What Occasion Was There For His Appointing Special

Commissioners For The Trial Of Offences,  Without The Intervention

Of A Jury,  As He Frequently Did,  In Manifest And Acknowledged

Violation Of Magna Carta,  And "The Law Of The Land?" These

Appointments Were Undoubtedly Made For No Other Reason Than That

The Juries Were Not Sufficiently Subservient,  But Judged

According To Their Own Notions Of Right,  Instead Of The Will Of

The King   Whether The Latter Were Expressed In His Statutes,  Or

By His Judges.

 

[16] Of Course,  Mr. Reeve Means To Be Understood That,  In The

Hundred Court,  And Court-Leet,  The Jurors Were The Judges,  As He

Declares Them To Have Been In The County Court; Otherwise The

"Bailiff" Or "Steward" Must Have Been Judge.

 

[17] The Jurors Were Sometimes Called " Assessors," Because They

Assessed,  Or Determined The Amount Of Fines And Amercements To

Be Imposed.

 

[18] "The Barons Of The Hundred" Were The Freeholders. Hallam

Says: "The Word Baro,  Originally Meaning Only A Man,  Was Of Very

Large Significance,  And Is Not Unfrequently Applied To Common

Freeholders,  As In The Phrase Court-Baron."   3 Middle Ages,

14-15.

 

Blackstone Says: "The Court-Baron *  * Is A Court Of Common Law,

And It Is The Court Of The Barons,  By Which Name The Freeholders

Were Sometimes Anciently Called; For That It Is Held Before The

Freeholders Who Owe Suit And Service To The Manor."   3

Blackstone,  33.

 

[19] The Ancient Jury Courts Kept No Records,  Because Those Who

Composed The Courts Could Neither Make Nor Read Records. Their

Decisions Were Preserved By The Memories Of The Jurors And Other

Persons Present.

 

[20] Stuart Says:

 

"The Courts,  Or Civil Arrangements,  Which Were

Modelled In Germany,  Preserved The Independence Of The People;

Aud Having Followed The Saxons Into England,  And Continuing Their

Importance,  They Supported The Envied Liberty We Boast Of.

 

"As A Chieftain Led Out His Retainers To The Field,  And Governed

Them During War; So In Peace He Summoned Them Together,  And

Exerted A Civil Jurisdiction. He Was At Once Their Captain And

Their Judge. They Constituted His Court; And Having Inquired With

Him Into The Guilt Of Those Of Their Order Whom Justice Had

Accused,  They Assisted Him To Enforce His Decrees.

 

"This Court (The Court-Baron) Was Imported Into England; But The

Innovation Which Conquest Introduced Into The Fashion Of The

Times Altered Somewhat Its Appearance.

 

"The Head Or Lord Of The Manor Called Forth His Attendants To His

Hall. * * He Inquired Into The Breaches Of Custom,  And Of

Justice,  Which Were Committed Within The Precincts Of His

Territory,  And With His Followers,  Who Sat With Him As Judges,  He

Determined In All Matters Of Debt,  And Of Trespass To A Certain

Amount. He Possessed A Similar Jurisdiction With The Chieftain In

Germany,  And His Tenants Enjoyed An Equal Authority With The

German Retainers.

 

"But A Mode Of Administration Which Intrusted So Much Power To

The Great Could Not Long Be Exercised Without Blame Or Injustice.

The German,  Guided By The Candor Of His Mind,  And Entering Into

All His Engagements With The Greatest Ardor,  Perceived Not,  At

First,  That The Chieftain To Whom He Submitted His Disputes Might

Be Swayed,  In The Judgments He Pronounced,  By Partiality,

Prejudice,  Or Interest; And That The Influence He Maintained With

His Followers Was Too Strong To Be Restrained By Justice.

Experience Instructed Him Of His Error",  He Acknowledged The

Necessity Of Appealing From His Lord; And The Court Of The

Hundred Was Erected.

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 91

 

"This Establishment Was Formed Both In Germany And England,  By

The Inhabitants Of A Certain Division,  Who Extened Their

Jurisdiction Over The Territory They Occupied. [21] They Bound

Themselves Under A Penalty To Assemble At Stated Times; And

Having Elected The Wisest To Preside Over Them,  They Judged,  Not

Only All Civil And Criminal Matters,  But Of Those Also Which

Regarded Religion And The Priesthood. The Judicial Power Thus

Invested In The People Was Extensive; They Were Able To Preserve

Their Rights,  And Attended This Court In Arms.

 

[21] "It Was The Freemen In Germany,  And The Possessors Of Land

In England,  Who Were Suitors (Jurors) In The Hundred Court. These

Ranks Of Men Were The Same. The Alteration Which Had Happened In

Relation To Property Had Invested The German Freemen With Land Or

Territory."

 

"As The Communication,  However,  And Intercourse,  Of The

Individuals Of A German Community Began To Be Wider,  And More

General,  As Their Dealings Enlarged,  And As Disputes Arose Among

The Members Of Different Hundreds,  The Insufficiency Of These

Courts For The Preservation Of Order Was Gradually Perceived. The

Shyre Mote,  Therefore,  Or County Court,  Was Instituted; And It

Formed The Chief Source Of Justice Both In Germany And England.

 

"The Powers,  Accordingly,  Which Had Been Enjoyed By The Court Of

The Hundred,  Were Considerably Impaired. It Decided No Longer

Concerning Capital Offences; It Decided Not Concerning Matters Of

Liberty,  And The Property Of Estates,  Or Of Slaves; Its

Judgments,  In Every Case,  Became Subject To Review; And It Lost

Entirely The Decision Of Causes,  When It Delayed Too Long To

Consider Them.

 

"Every Subject Of Claim Or Contention Was Brought,  In The First

Instance,  Or By Appeal,  To The County Court; And The Earl,  Or

Eorldorman,  Who Presided There,  Was Active To Put The Laws In

Execution. He Repressed The Disorders Which Fell Out Within The

Circuit Of His Authority; And The Least Remission In Hi Duty,  Or

The Least Fraud He Committed,  Was Complained Of And Punished. He

Was Elected From Among The Great,  And Was Above The Temptation

Of

A Bribe; But,  To Encourage His Activity,  He Was Presented With A

Share Of The Territory He Governed,  Or Was Entitled To A

Proportion Of The Fines And Profits Of Justice. Every Man,  In His

District,  Was Bound To Inform Him Concerning Criminals,  And To

Assist Him To Bring Them To Trial; And,  As In Rude And Violent

Times The Poor And Helpless Were Ready To Be Oppressed By The

Strong,  He Was Instructed Particularly To Defend Them.

 

"His Court Was Ambulatory,  And Assembled Only Twice A Year,

Unless The Distribution Of Justice Required That Its Meetings

Should Be Oftener. Every Freeholder In The County Was Obliged To

Attend It; And Should He Refuse This Service,  His Possessions

Were Seized,  And He Was Forced To Find Surety For His Appearance.

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 92