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

Note Pg 105

Share In the Determination. ' Eliguntur In conciliis Et

Principes,  Qui Jura Per Pagos Vicosque Reddunt,  Centenii

Singulis,  Ex Plebe Comites Comcilium Simul Et Auctoritas Adsunt.

(The Princes Are Chosen In the Assemblies,  Who Administer The

Laws Throughout The Towns And Villages,  And With Each One Are

Associated an Hundred companions,  Taken From The People,  For

Purposes Both Of Counsel And Authority.) This Hundred court Was

Denominated haereda In the Gothic Constitution. But This Court,

As Causes Are Equally Liable To Removal From Hence As From The

Common Court-Baron,  And By The Same Writs,  And May Also Be

Reviewed by Writ Of False Judgment,  Is Therefore Fallen Into

Equal Disuse With Regard To The Trial Of Actions." 8 Blackstone,  34,

85.

 

"The County Court Is A Court Incident To The Jurisdiction Of The

Sheriff. It Is Not A Court Of Record,  But May Hold Pleas Of Debt,

Or Damages,  Under The Value Of Forty Shillings; Over Some Of

Which Causes These Inferior Courts Have,  By The Express Words Of

The Statute Of Gloucester,  (6 Edward I.,  Eh. 8,) A Jurisdicton

Totally Exclusive Of The King'S Superior Courts. *  * The County

Court May Also Hold Plea Of Many Real Actions,  And Of All

Personal Actions To Any Amount,  By Virtue Of A Special Writ,

Called a Justicies,  Which Is A Writ Empowering the Sheriff,  For

The Sake Of Despatch,  To Do The Samee Justice In his County Court

As Might Otherwise Be Had At Westminster. The Freeholders Of The

County Court Are The Real Judges In this Court,  And The Sheriff

Is The Ministerial Ofhcer. * * In modern Times,  As Proceedings

Are Removable From Hence Into The King'S Superior Courts,  By Writ

Of Pone Or Recordari,  In the Same Manner As From Hundred courts

And Courts-Baron,  And As The Same Writ Of False Judgment May Be

Had In nature Of A Writ Of Error,  This Has Occasioned the Same

Disuse Of Bringing actions Therein."   3 Blackstone,  36,  37.

 

"Upon The Whole,  We Cannot But Admire The Wise Economy And

Admirable Provision Of Our Ancestors In settling the Distribution

Of Justice In a Method So Well Calculated for Cheapness,

Expedition,  And Ease. By The Constitution Which They Established,

All Trivial Debts,  And Injuries Of Small Consequence,  Were To Be

Recovered or Redressed in every Man'S Own County,  Hundred,  Or

Perhaps Parish."   3 Blackstone,  59.

 

[22] It Would Be Wholly Erroneous,  I Think,  To Infer From This

Statement Of Stuart,  That Either The "Priests,  Princes,  Earls,  Or

Eorldormen" Exercised any Authority Over The Jury In the Trial Of

Causes,  In the Way Of Dictating the Law To Them. Henry'S Account

Of This Matter Doubtless Gives A Much More Accurate

Representation Of The Truth. He Says That Anciently

 

[23] There Was No Distinction Between The Civil And Criminal

Courts,  As To The Rights Or Powers Of Juries.                     

 

[24] This Quaint And Curious Book; (Smith'S Commonwealth

Of England) Describes The Minutiae Of Trials,  Giving in detail

The Mode Of Impaneling the Jury And Then The Conduct Of The 

Note Pg 106

 Lawyers,  Witnesses,  And Court I Give The Following extracts, 

Tending to Show That The Judges Impose No Law Upon The Juries, 

In Either Civil Or Criminal Cases But Only Require Them To

Determine The Causes According to Their Consciences.

 

In Civil Causes He Says:

 

"When It Is Thought That It Is Enough Pleaded before Them, 

And The Witnesses Have Said What They Can,  One Of The Judges, 

With A Brief And Pithy Recapitulation,  Reciteth To The Twelve

In Sum The Arguments Of The Sergeants Of Either Side,  That

Which The Witnesses Have Declared,  And The Chief Points Of The

Evidence Showed in writing,  And Once Again Putteth Them In

Mind Of The Issue,  And Sometime Giveth It Them In writing,

Delivering to Them The Evidence Which Is Showed on Either Part, 

If Any Be,  (Evidence Here Is Called writings Of Contracts,

Authentical After The Manner Of England,  That Is To Say,  Written, 

Sealed,  And Delivered,) And Biddeth Them Go Together."   P. 74.

 

This Is The Whole Account Given Of The Charge To The Jury.

 

In Criminal Eases,  After The Witnesses Have Been Heard,  And

The Prisoner Has Said What He Pleases In his Defence,  The Book

Proceeds:

 

"When The Judge Hath Heard Them Say Enough,  He Asketh If

They Can Say Any More. If They Say No,  Then He Turneth His Speech

To The Inquest. 'Good Men,  (Saith He,) Ye Of The Inquest,  Ye Have

Heard What These Men Say Against The Prisoner. You Have Also

Heard What The Prisoner Can Say For Himself. Have An Eye To

Your Oath,  And To Your Duty,  And Do That Which God Shall Put

In Your Minds To The Discharge Of Your Consciences,  And Mark

Well What Is Said.' "  P. 92.

 

This Is The Whole Account Given Of The Charge In a Criminal Ease.

 

The Following statement Goes To Confirm The Same Idea,  That

Jurors In england Have Formerly Understood It To Be Their Right And

Duty To Judge Only According to Their Consciences,  And Not To

Submit To Any Dictation From The Court,  Either As To Law Or Fact.

 

"If Having pregnant Evidence,  Nevertheless,  The Twelve Do

Acquit The Malefactor Which They Will Do Sometime,  Especially If

They Perceive Either One Of The Justices Or Of The Judges,  Or Some

Other Man,  To Pursue Too Much And Too Maliciously The Death Of The

Prisoner,  * * The Prisoner Escapeth; But The Twelve (Are) Not Only

Rebuked by The Judges,  But Also Threatened of Punishment; And

Many Times Commanded to Appear In the Star-Chamber,  Or Before The

Privy Council For The Matter. But This Threatening chanceth Oftener

Than The Execution Thereof; And The Twelve Answer With Most

Gentle Words,  They Did It According to Their Consciences,  And

Pray The Judges To Be Good Unto Them,  They Did As They Thought

Right,  And As They Accorded all,  And So It Passeth Away For The

Most Part."   P. 100.

Note Pg 107

 

The Account Given Of The Trial Of A Peer Of  The Realm Corroborates

The Same Point:

 

"If Any Duke,  Marquis,  Or Any Other Of The Degrees Of A Baron, 

Or Above,  Lord Of The Parliament,  Be Appeached of Treason,  Or Any

Other Capital Crime,  He Is Judged by His Peers And Equals; That, 

Is,  The Yeomanry Doth Not Go Upon Him,  But An Inquest Of The Lords

Of Parliament,  And They Give Their Voice Not One For All,  But Each

Severally As They Do In parliament Being (Beginning) At The

Youngest Lord. And For Judge One Lord Sitteth,  Who Is Constable Of

England For That Day. The Judgment Once Given,  He Breaketh His

Staff,  And Abdicateth His Office. In the Rest There Is No Difference

From That Above Written," (That Is,  In the Case Of A Freeman.) P. 98.

 

[25] "The Present  Form Of The Jurors' Oath Is  That They Shall 'Give A

True Verdict According to The Evidence.' At What Time This Form Was

Introduced is Uncertain; But For Several Centuries After The Conquest, 

The Jurors,  Both In civil And Criminal Cases,   Were Sworn Merely To

Speak  The Truth. (Glanville,  Lib. 2,  Cap. 17; Bracton,  Lib. 3,  Cap. 22; Lib. 4, 

P. 287,  291; Britton,  P. 135.) Hence Their Decision Was Accurately

Termed veredictum,  Or Verdict,  That Is,  ' A Thing truly Said'; Whereas

The Phrase 'True Verdict' In the Modern Oath Is Not An Accurate

Expression."   Political Dictionary,  Word Jury.

 

[26] Of Course,  There Can Be No Legal Trial By Jury,  In either Civil Or

Criminal Cases,  Where The Jury Are Sworn To Try The Cases "According

To Law."

 

[27] Coke,  As Late As 1588,  Admits That Amercements Must Be Fixed by The

Peers (8 Coke'S Rep. 88,  2 Inst. 27); But He Attempts,  Wholly Without

Success,  As It Seems To Me,  To Show A Difference Between Fines And

Amercements. The Statutes Are Very Numerous,  Running through The

Three Or Four Hundred years Immediately Succeeding magna Carta,

In Which Fines,  Ransoms,  And Amercements Are Spoken Of As If They

Were The Common Punishments Of Offences,  And As If They All Meant The

Same Thing. If,  However,  Any Technical Difference Could Be Made

Out Between Them,  There Is Clearly None In principle; And The Word

Amercement,  As Used in magna Carta,  Must Be Taken In its Most

Comprehensive Sense.

 

[28] "Common Right" Was The Common Law. 1 Coke'S

Inst. 142 A. 2 Do. 55,  6.

 

[29] The Oath Of The Justices Is In these Words:"Ye Shall

Swear,  That Well And Lawfully Ye Shall Serve Our Lord The

King and His People,  In the Office Of Justice,  And That

Lawfully Ye Shall Counsel The King in his Business,  And That

Ye Shall Not Counsel Nor Assent To Anything which May

Turn Him In damage Or Disherison In any Manner,  Way,  Or

Color. And That Ye Shall Not Know The Damage Or

Disherison Of Him,  Whereof Ye Shall Not Cause Him To Be 

Note Pg 108

Warned by Yourself,  Or By Other; And That Ye Shall Do

Equal Law And Execution Of Right To All His Subjects,  Rich

And Poor,  Without Having regard To Any Person. And That

Ye Take Not By Yourself,  Or By Other,  Privily Nor Apertly, 

Gift Nor Reward Of Gold Nor Silver,  Nor Of Any Other

Thing that May Turn To Your Profit,  Unless It Be Meat Or

Drink,  And That Of Small Value,  Of Any Man That Shall

Have Any Plea Or Process Hanging before You,  As Long

As The Same Process Shall Be So Hanging,  Nor After For

The Same Cause. And That Ye Take No Fee,  As Long As Ye

Shall Be Justice,  Nor Robe Of Any Man Great Or Small,  But

Of The King himself. And That Ye Give None Advice Or

Counsel To No Man Great Or Small,  In no Case Where The King

Is Party. And In case That Any,  Of What Estate Or Condition

They Be,  Come Before You In your Sessions With Force

And Arms,  Or Otherwise Against The Peace,  Or Against The

Form Of The Statute Thereof Made,  To Disturb Execution

Of The Common Law," [Mark The Term,  "Common Law,")

"Or To Menace The People That They May Not