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

The Trial Of Civil

Suits,  That Obviously Had Its Origin In The Corruption Of The

King's Judges. The Provision Is,  That Four Knights,  To Be Chosen

In Every County,  By The People Of The County,  Shall Sit With The

King's Judges,  In The Common Pleas,  In Jury Trials,  (Assizes,) On

The Trial Of Three Certain Kinds Of Suits,  That Were Among The

Most Important That Were Tried At All. The Reason For This

Provision Undoubtedly Was,  That The Corruption And Subserviency

Of The King's Judges Were So Well Known,  That The People Would

Not Even Trust Them To Sit Alone In A Jury Trial Of Any

Considerable Importance. The Provision Is This:

 

Chap. 22,  (Of John's Charter.) "Common Pleas Shall Not Follow Our

Court,  But Shall Be Holden In Some Certain Place. Trials Upon The

Writ Of Novel Disseisin,  And Of Mort D'ancester,  And Of Darrein

Presentment,  Shall Be Taken But In Their Proper Counties,  And

After This Manner: We,  Or,  If We Should Be Out Of Our Realm,  Our

Chief Justiciary,  Shall Send Two Jnsticiaries Through Every

County Four Times A Year; [3] Who,  With Four Knights Chosen Out

Of Every Shire,  By The People,  Shall Hold The Assizes (Juries) In

The County,  On The Day And At The Place Appointed."

 

It Would Be Very Unreasonable To Suppose That The King's Judges

Were Allowed To Dictate The Law To The Juries,  When The People

Would Not Even Suffer Them To Sit Alone In Jury Trials,  But

Themselves Chose Four Men To Sit With Them,  To Keep Them Honest.

[4]

 

This Practice Of Sending The King's Judges Into The Counties

Chapter 4 (The Rights And Duties Of Juries In Civil Suits) Pg 99

To Preside At Jury Trials,  Was Introduced By The Norman Kings

Under The Saxons It Was Not So. No Officer Of The King Was

Allowed To Preside At A Jury Trial; But Only Magistrates Chosen

By The People.[5]

 

But The Following Chapter Of John's Charter,  Which Immediately

Succeeds The One Just Quoted,  And Refers To The Same Suits,

Affords Very Strong,  Not To Say Conclusive,  Proof,  That Juries

Judged Of The Law In Civil Suits   That Is,  Made The Law,  So Far

As Their Deciding According To Their Own Notions Of Justice Could

Make The Law.

 

Chap. 23. "And If,  On The County Day,  The Aforesaid Assizes

Cannot Be Taken,  So Many Knights And Freeholders Shall Remain,  Of

Those Who Shall Have Been Present On Said Day,  As That The

Judgments May Be Rendered By Them,  Whether The Business Be More

Or Less."

 

The Meaning Of This Chapter Is,  That So Many Of The Civil

Suits,  As Could Not Be Tried On The Day When The King's Justices

Were Present,  Should Be Tried Afterwards,  By The Four Knights

Before Mentioned,  And The Freeholders,  That Is,  The Jury. It Must

Be Admitted,  Of Course,  That The Juries,  In These Cases,  Judged

The Matters Of Law,  As Well As Fact,  Unless It Be Presumed That

The Knights Dictated The Law To The Jury Na Thing Of Which There

Is No Evidence At All.

 

As A Final Proof On This Point,  There Is A Statute Enacted

Seventy Years After Magna Carta,  Which,  Although It Is Contrary

To The Common Law,  And Therefore Void,  Is Nevertheless Good

Evidence,  Inasmuch As It Contains An Acknowledgment,  On The Part

Of The King Himself,  That Juries Had A Right To Judge Of The

Whole Matter,  Law And Fact,  In Civil Suits. The Provision Is

This:

 

"It Is Ordained,  That The Justices Assigned To Take The Assizes,

Shall Not Compel The Jurors To Say Precisely Whether It Be

Disseisin,  Or Not,  So That They Do Show The Truth Of The Deed,

And Seek Aid Of The Justices. But If They Will,  Of Their Own

Accord,  Say That It Is Disseisin,  Or Not,  Their Verdict Shall Be

Admitted At Their Own Peril."   13 Edward I.,  St. 1,  Ch. 3,  Sec.

2. (1285.)

 

The Question Of "Disseisin,  Or Not," Was A Question Of Law,  As

Well As Fact. This Statute,  Therefore,  Admits That The Law,  As

Well As The Fact,  Was In The Hands Of The Jury. The Statute Is

Nevertheless Void,  Because The King Had No Authority To Give

Jurors A Dispensation From The Obligation Imposed Upon Them By

Their Oaths And The "Law Of The Land," That They Should "Make

Known The Truth According Their (Own) Consciences." This They

Were Bound To Do,  And There Was No Power In The King To Absolve

Them From The Duty. And The Attempt Of The King Thus To Absolve

Them,  And Authorize Them To Throw The Case Into The Hands Of The

Judges For Decision,  Was Simply An Illegal And Unconstitutional

Chapter 4 (The Rights And Duties Of Juries In Civil Suits) Pg 100

Attempt To Overturn The "Law Of The Land," Which He Was Sworn To

Maintain,  And Gather Power Into His Own Hands,  Through His

Judges. He Had Just As Much Constitutional Power To Enact That

The Jurors Should Not Be Compelled To Declare The Facts,  But That

They Might Leave Them To Be Determined By The King's Judges,  As

He Had To Enact That They Should Not Be Compelled To Declare The

Law,  But Might Leave It To Be Decided By The King's Judges. 122

It Was As Much The Legal Duty Of The Jury To Decide The Law As To

Decide The Fact; And No Law Of The King Could Affect Their

Obligation To Do Either. And This Statute Is Only One Example Of

The Numberless Contrivances And Usurpations Which Have Been

Resorted To,  For The Purpose Of Destroying The Original And

Genuine Trial By Jury.

 

[1] Marches,  The Limits,  Or Boundaries,  Between England And

Wales.

 

[2] That The Kings Would Have Had No Scruples To Enact Laws For

The Special Purpose Of Plundering The People,  By Means Of The

Judgments Of Juries,  If They Could Have Got Juries To Acknowledge

The Authority Of Their Laws,  Is Evident From The Audacity With

Which They Plundered Them,  Without Any Judgments Of Juries To

Authorize Them.

 

It Is Not Necessary To Occupy Space Here To Give Details As To

These Robberies; But Only Some Evidence Of The General Fact.

 

Hallam Says,  That "For The First Three Reigns (Of The Norman

Kings) * * The Intolerable Exactions Of Tribute,  The Rapine Of

Purveyance,  The Iniquity Of Royal Courts,  Are Continually In The

Mouths Of The Historians. ' God Sees The Wretched People,' Says

The Saxon Chronicler,  'Most Unjustly Oppressed; First They Are

Despoiled Of Their Possessions,  And Then Butchered.' This Was A

Grievous Year (1124). Whoever Had Any Property,  Lost It By Heavy

Taxes And Unjust Decrees."   2 Middle Ages,  435-6.

 

"In The Succeeding Reign Of John,  All The Rapacious Exactions

Usual To These Norman Kings Were Not Only Redoubled,  But Mingled

With Outrages Of Tyranny Still More Intolerable.

 

"In 1207 John Took A Seventh Of The Movables Of Lay And Spiritual

Persons,  All Murmuring,  But None Daring To Speak Against It." 

Ditto,  446.

 

In Hume's Account Of The Extortions Of Those Times,  The Following

Paragraph Occurs:

 

"But The Most Barefaced Acts Of Tyranny And Oppression Were

Practised Against The Jews,  Who Were Entirely Out Of The

Protection Of The Law,  And Were Abandoned To The Immeasurable

Rapacity Of The King And His Ministers. Besides Many Other

Indignities,  To Which They Were Continually Exposed,  It Appears

That They Were Once All Thrown Into Prison,  And The Sum Of 66,000

Marks Exacted For Their Liberty. At Another Time,  Isaac,  The Jew,

Chapter 4 (The Rights And Duties Of Juries In Civil Suits) Pg 101

Paid Alone 5100 Marks",  Brun,  3000 Marks; Jurnet,  2000; Bennet,

500. At Another,  Licorica,  Widow Of David,  The Jew Of Oxford,  Was

Required To Pay 6000 Marks."   Hume's Hist Eng.,  Appendix 2.

 

Further Accounts Of The Extortions And Oppressions Of The Kings

May Be Found In Hume's History,  Appendix 2,  And In Hallam's

Middle Ages,  Vol. 2,  P. 435 To 446.

 

By Magna Carta John Bound Himself To Make Restitution For Some

Of The Spoliations He Had Committed Upon Individuals "Without The

Legal Judgment Of Their Peers."   See Magna Carta Of John,  Ch.

60,  61,  65 And 66.

 

One Of The Great Charges,  On Account Of Which The Nation Rose

Against John,  Was,  That He Plundered Individuals Of Their

Property,  "Without Legal Judgment Of Their Peers." Now It Was

Evidently Very Weak And Short Sighted In John To Expose Himself

To Such Charges,  If His Laws Were Really Obligatory Upon The

Peers; Because,  In That Case,  He Could Have Enacted Any Laws That

Were Necessary For His Purpose,  And Then,  By Civil Suits,  Have

Brought The Cases Before Juries For Their "Judgment," And Thus

Have Accomplished All His Robberies In A Perfectly Legal Manner.

 

There Would Evidently Have Been No Sense In These Complaints,

That He Deprived Men Of Their Property "Without Legal Judgment Of

Their Peers," If His Laws Had Been Binding Upon The Peers;

Because He Could Then Have Made The Same Spoliations As Well With

The Judgment Of The Peers As Without It. Taking The Judgment Of

The Peers In The Matter,  Would Have Been Only A Ridiculous And

Useless Formality,  If They Were To Exercise No Discretion Or

Conscience Of Their Own,  Independently Of The Laws Of The King.

 

It May Here Be Mentioned,  In Passing,  That The Same Would Be True

In Criminal Mature,  If The King's Laws Were Obligatory Upon

Juries.

 

As An Illustration Of What Tyranny The Kings Would Sometimes

Practise,  Hume Says:

 

"It Appears From The Great Charter Itself,  That Not Only John,  A

Tyrannical Prince,  And Richard,  A Violent One,  But Their Father

Henry,  Under Whose Reign The Prevalence Of Gross Abuses Is The

Least To Be Suspected,  Were Accustomed,  From Their Sole

Authority,  Without Process Of Law,  To Imprison,  Banish,  And

Attaint The Freemen Of Their Kingdom."   Hume,  Appendix 2.

 

The Provision,  Also,  In The 64th Chapter Of Magna Carta,  That "

All Unjust And Illegal Fines,  And All Amercements,  Imposed

Unjustly,  And Contrary To The Law Of The Land,  Shall Be Entirely

Forgiven," &C;.; And The Provision,  In Chapter 61,  That The King

"Will Cause Full Justice To Be Administered" In Regard To "All

Those Things,  Of Which Any Person Has,  Without Legal Judgment Of

His Peers,  Been Dispossessed Or Deprived,  Either By King Henry,

Our Father.,  Or Our Brother,  King Richard," Indicate The