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

Same Letters. And That Ye Shall

Do And Procure The Profit Of The King And Of His Crown, 

With All Things Where Ye May Reasonably Do The

Same.  And In Case Ye Be From Henceforth Found In

Default In Any Of The Points Aforesaid,  Ye Shall Be At The

King's Will Of Body,  Lands,  And Goods,  Thereof To Be

Done As Shall Please Him,  As God You Help And All

Saints."   18 Edward Iii.,  St. 4. (1344.)

 

[30] That The Terms "Law" And "Right," As Used

In This Statute,  Mean The Common Law,  Is Shown

By The Preamble,  Which Declares The Motive Of

The Statute To Be That "The Law Of The Land, 

(The Common Law,) Which We (The King) By Our

Oath Are Bound To Maintain," May Be The Better

Kept,  &.

 

[31] The Following Is A Copy Of The Original:

 

"Forma Juramenti Regis Anglicae In Coronacione Sua:

 

(Archiepiscopus Cantuariae,  Ad Quo De Jure Et Consuetudine

Ecclesiae Cantuariae,  Antiqua Et Approbata,  Pertinet

Reges Angliae Inungere Et Coronare,  Die Coronacionis

Regis,  Anteque Rex Coronetur,  Faciet Regi Interrogationes

Subscriptas.)

 

Si Leges Et Consuetudines Ab Antiquis Justis Et Deo

Devotis Regibus Plebi Anglicano Concessas,  Cum

Sacramenti Confirmacione Eidem Plebi Concedere

Et Servare (Volueris:) Et Praesertim Leges Et

Consuetudines Et Libertates A Glorioso Rege Edwardo

Clero Populoque Concessas ?

 

(Et Respondeat Rex,) Concedo Et Servare Volo,  Et

Sacramento Confirmare.

 

Servabis Ecclesiae Dei,  Cleroque,  Et Populo,  Pacem

Ex Integro Et Concordiam In Deo Secundum Vires Tuas ?

 

(Et Respondeat Rex,) Servabo.

 

Facies Fieri In Omnibus Judieiis Tuis Equam Et Rectam

Justioiam,  Et Discreeionem,  In Misericordia Et Veritate, 

Secundum Vires  Tuas?

 

(Et Respondeat Rex,) Faciam.

 

Concedis Justas,  Leges Et Consuetudines Esse Tenendas, 

Et Promittis Per Te Eas Esse Protegendas,  Et Ad Honorem

Dei Corroborandas,  Quas Vulgus Elegit,  Secundum Vires

Tuas ?

 

(Et Respondeat Rex,) Concedo Et Promitto."

 

[32] It Would Appear,  From The Text,  That The Charter Of Liberties

And The Charter Of The Forest Were Sometimes Called "Laws Of The

Land."

 

[33] As The Ancient Coronation Oath,  Given In The Text,

 Has Come Down From The Saxontimes,  The Following

Remarks Of Palgrave Will Be Pertinent,  In Connection

With The Oath,  As Illustrating The Fact That,  In Those Times,

No Special Authority Attached To The Laws Of The King:

 

"The Imperial Witenagemot Was Not A Legislative

Assembly,  In The Strict Sense Of The Term,  For The Whole

Anglo-Saxon Empire. Promulgating His Edicts Amidst

His Peers And Prelates,  The King Uses The Language Of

Command; But The Theoretical Prerogative Was Modified

By Usage,  And The Practice Of The Constitution Required

That The Law Should Be Accepted By The Legislatures

(Courts) Of The Several Kingdoms. * * The 'Basileus'

Speaks In The Tone Of Prerogative: Edgar Does Not

Merely Recommend,  He Commands That The Law Shall Be

Adopted By All The People,  Whether English,   Danes,  Or

Britons,  In Every Part Of His Empire. Let This Statute Be

Observed,  He Continues,  By Earl Oslac,  And All The Host

Who Dwell Under His Government,  And Let It Be Transmitted

By Writ To The Ealdormen Of The Other Subordinate States.

And Yet,  In Defiance Of This Positive Iujunction,  The

Laws Of Edgar Were Not Accepted In Mercia Until The Reign

Of Canute The Dane. It Might Be Said That The Course

So Adopted May Have Been An Exception To The General Rule;

But In The Scanty And Imperfect Annals Of Anglo-Saxon

Legislation,  We Shall Be Able To Find So Many Examples

Of Similar Proceedings,  That This Mode Of Enactment

Must Be Considered As Dictated By The Constitution Of

The Empire. Edward Was The Supreme Lord Of The

Northumbrians,  But More Than A Century Elapsed Before

They Obeyed His Decrees.  The Laws Of The Glorious

Athelstane Had No Effect In Kent,  (County,) The

Dependent Appanage Of His Crown,  Until Sanctioned

By The Witan Of The Shire (County Court). And The Power Of

Canute Himself,  The 'King Of All England,' Does Not

Seem To Have Compelled The Northumbrians To

Receive His Code,  Until The Reign Of The Confessor, 

When Such Acceptance Became A Part Of The Compact

Upon The Accession Of A New Earl.

 

Legislation Constituted But A Small Portion  Of The

Ordinary Business Transacted By The Imperial

Witenagemot. The Wisdom Of The Assembly Was

Shown In Avoiding Unnecessary Change. Consisting

Principally Of Traditionary Usages And Ancestorial Customs,

The Law Was Upheld By Opinion. The People Considered

Their Jurisprudence As A Part Of Their  Inheritance.

Their Privileges And Their Duties Were Closely Conjoined;

Most Frequently,  The Statutes Themselves Were Only

Affirmances Of Ancient Customs,  Or Declaratory Enactments.

 

In The Anglo-Saxon Commonwealth,  Therefore,  The

Legislative Functions Of The Witenagemot Were Of Far

Less Importance Than The Other Branches Of Its Authority.

* * The Members Of The Witenagemot Were The ' Pares Curiae '

(Peers Of Court) Of The Kingdom. How Far,  On These Occasions, 

Their Opinion Or Their Equity Controlled The Power Of The Crown,

Cannot Be Ascertained. But The Form Of Inserting Their Names

In The 'Testing Clause' Was Retained Under The

Anglo-Norman Reigns; And The Sovereign,  Who Submitted

His Charter To The Judgment Of The Proceres,  Professed To

Be Guided By The Opinion Which They Gave. As The 'Pares'

Of The Empire,  The Witenagemot Decided' The Disputes

Between The Great Vassals Of The Crown. * * The Jurisdiction

Exercised In The Parliament Of Edward I.,  When The Barony

Of A Lord-Marcher Became The Subject Of Litigation,  Is

Entirely Analogous To The Proceedings Thus Adopted By The Great

Council Of Edward,  The Son Of Alfred,  The Anglo-Saxon King.

 

In This Assembly,  The King,  The Prelates,  The Dukes,  The

Ealdormen,  And The Optimates Passed Judgment Upon All Great

Offenders.* *

 

The Sovereign Could Not Compel The Obedience Of The Different

Nations Composing The Anglo-Saxon Empire. Hence,  It

Became More Necessary For Him To Conciliate Their

Opinions,  If He Solicited Any Service From A Vassal Prince Or

A Vassal State Beyond The Ordinary Terms Of The Compact;

Still More So,  When He Needed The Support Of A Free Burgh Or

City. And We May View The Assembly (The Witenagemot)

As Partaking Of The Character Of A Political Congress,  In

Which The Liegemen Of The Crown,  Or The Communities

Protected By The ' Basileus,' (Sovereign,) Were Asked Or

Persuaded To Relieve The Exigences Of The State,  Or To Consider

Those Measures Which Might Be Required For The Common Weal.

The Sovereign Was Compelled To Parley With His Dependents,

 

It May Be Doubted Whether Any One Member Of The Empire Had

Power To Legislate For Any Other Member. The Regulus Of Cumbria

Was Unaffected By The Vote Of The Earl Of East Angliae,  If

He Chose To Stand Out Against It. These Dignitaries

Constituted A Congress,  In Which The Sovereign Could

Treat More Conveniently And Effectually With His Vassals

Than By Separate Negotiations. * * But The Determinations

Of The Witan Bound Those Only Who Were Present,  Or Who

Concurred In The Proposition; And A Vassal Denying His Assent

To The Grant,  Might Assert That The Engagement Which He

Had Contracted With His Superior Did Not Involve Any

Pecuniary Subsidy,  But Only Rendered Him Liable To Perform

Service In The Field."   1 Palgrave's Rise And Progress Of The

English Commonwealth,  637 To 642.

 

 

Chapter 4 (The Rights And Duties Of Juries In Civil Suits) Pg 98

The Evidence Already Given In The Preceding Chapters Proves That

The Rights And Duties Of Jurors,  In Civil Suits,  Were Anciently

The Same As In Criminal Ones; That The Laws Of The King Were Of

No Obligation Upon The Consciences Of The Jurors,  Any Further

Than The Laws Were Seen By Them To Be Just; That Very Few Laws

Were Enacted Applicable To Civil Suits; That When A New Law Was

Enacted,  The Nature Of It Could Have Been Known To The Jurors

Only By Report,  And Was Very Likely Not To Be Known To Them At

All; That Nearly All The Law Involved In Civil Suits Was

Unwritten;  That There Was Usually  No One In Attendance Upon

Juries Who Could Possibly Enlighten Them,  Unless It Were

Sheriffs,  Stewards,  And Bailiffs,  Who Were Unquestionably Too

Ignorant And Untrustworthy To Instruct Them Authoritatively; That

The Jurors Must Therefore Necessarily Have Judged For Themselves

Of The Whole Case; And That,  As A General Rule,  They Could Judge

Of It By No Law But The Law Of Nature,  Or The. Principles Of

Justice As They Existed In Their Own Minds.

 

The Ancient Oath Of Jurors In Civil Suits,  Viz.,  That "They Would

Make Known The Truth According To Their Consciences," Implies

That The Jurors Were Above The Authority Of All Legislation. The

Modern Oath,  In England,  Viz.,  That They "Will Well And Truly Try

The Issue Between The Parties,  And A True Verdict Give,  According

To The Evidence," Implies The Same Thing. If The Laws Of The King

Had Been Binding Upon A Jury,  They Would Have Been Sworn To Try

The Cases According To Law,  Or According To The Laws.

 

The Ancient Writs,  In Civil Suits,  As Given In Glanville,  (Within

The Half Century Before Magna Carta,) To Wit,  "Summon Twelve Free

And Legal Men,  (Or Sometimes Twelve Knights,) To Be In Court,

Prepared Upon Their Oaths To Declare Whether A Or B Have The

Greater Right To The Land In Question," Indicate That The Jurors

Judged Of The Whole Matter On Their Consciences Only.

 

The Language Of Magna Carta,  Already Discussed,  Establishes

The Same Point; For,  Although Some Of The Words,  Such As

"Outlawed," And "Exiled," Would Apply Only To Criminal Cases,

Nearly The Whole Chapter Applies As Well To Civil As To Criminal

Suits. For Example,  How Could The Payment Of A Debt Ever Be

Enforced Against An Unwilling Debtor,  If He Could Neither Be

"Arrested,  Imprisoned,  Nor Deprived Of His Freehold," And If The

King Could Neither "Proceed Against Him,  Nor Send Any One Against

Him,  By Force Or Arms" ?  Yet Magna Carta As Much Forbids That

Any Of These Things Shall Be Done Against A Debtor,  As Against A

Criminal,  Except According To,  Or In Execution Of,  " A Judgment

Of His Peers,  Or The Law Of The Land,"   A Provision Which,  It

Has Been Shown,  Gave The Jury The Free And Absolute Right To Give

Or Withhold "Judgment" According To Their Consciences,

Irrespective Of All Legislation.

 

The Following Provisions,  In The Magna Carta Of John,  Illustrate

The Custom Of Referring The Most Important Matters Of A Civil

Nature,  Even Where The King Was A Party,  To The Determination Of

The Peers,  Or Of Twelve Men,  Acting By No Rules But Their Own

Consciences. These Examples At Least Show That There Is Nothing

Improbable Or Unnatural In The Idea That Juries Should Try All

Civil Suits According To Their Own Judgments,  Independently Of

All Laws Of The King.

 

Chap. 65. "If We Have Disseized Or Dispossessed The Welsh Of Any

Lands,  Liberties,  Or Other Things,  Without The Legal Judgment Of

Their Peers,  They Shall Be Immediately Restored To Them. And If

Any Dispute Arises Upon This Head,  The Matter Shall Be Determined

In The Marches,  [1] By The Judgment Of Their Peers," &C;.

 

Chap. 68. " We Shall Treat With Alexander,  King Of Scots,

Concerning The Restoring Of His Sisters,  And Hostages,  And Rights

And Liberties,  In The Same Form And Manner As We Shall Do To The

Rest Of Our Barons Of England; Unless By The Engagements,  Which

His Father William,  Late King Of Scots,  Hath Entered Into With

Us,  It Ought To Be Otherwise; And This Shall Be Left To The

Determination Of His Peers In Our Court."

 

Chap. 56. "All Evil Customs Concerning Forests,  Warrens,  And

Foresters,  Warreners,  Sheriffs,  And Their Officers,  Rivers And

Their Keepers,  Shall Forthwith Be Inquired Into In Each County,

By Twelve Knights Of The Same Shire,  Chosen By The Most

Creditable Persons In The Same County,  And Upon Oath; And Within

Forty Days After The Said Inquest,  Be Utterly Abolished,  So As

Never To Be Restored."

 

There Is Substantially The Same Reason Why A Jury Ought To Judge

Of The Justice Of Laws,  And Hold All Unjust Laws Invalid,  In

Civil Suits,  As In Criminal Ones. That Reason Is The Necessity Of

Guarding Against The Tyranny Of The Government. Nearly The Same

Oppressions Can Be Practised In Civil Suits As In Criminal Ones.

For Example,  Individuals May Be Deprived,  Of Their Liberty,  And

Robbed Of Their Property,  By Judgments Rendered In Civil Suits,

As Well As In Criminal Ones. If The Laws Of The King Were

Imperative Upon A Jury In Civil Suits,  The King Might Enact Laws

Giving One Man's Property To Another,  Or Confiscating It