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

Every Business That They

May Have A Pretence For Extorting money. Even Justice Was

Avowedly Bought And Sold; The King'S Court Itself,  Though The

Supreme Judicature Of The Kingdom,  Was Open To None That Brought

Not Presents To The King; The Bribes Given For Expedition,  Delay,

Suspension,  And Doubtless For The Perversion Of Justice,  Were

Entered in the Public Registers Of The Royal Revenue,  And Remain

As Monuments Of The Perpetual Iniquity And Tyranny Of The Times.

The Barons Of The Exchequer,  For Instance,  The First Nobility Of

The Kingdom,  Were Not Ashamed to Insert,  As An Article In their

Records,  That The County Of Norfolk Paid A Sum That They Might Be

Fairly Dealt With; The Borough Of Yarmouth,  That The King'S

Charters,  Which They Have For Their Liberties,  Might Not Be

Violated; Richard,  Son Of Gilbert,  For The King'S Helping him To

Recover His Debt From The Jews; * * Serio,  Son Of Terlavaston,

That He Might Be Permitted to Make His Defence,  In case He Were

Accused of A Certain Homicide; Walter De Burton,  For Free Law,  If

Accused of Wounding another; Robert De Essart,  For Having an

Inquest To Find Whether Roger,  The Butcher,  And Wace And

Humphrey,  Accused him Of Robbery And Theft Out Of Envy And

Ill-Will,  Or Not; William Buhurst,  For Having an Inquest To Find

Whether He Were Accused of The Death Of One Godwin,  Out Of

Ill-Will,  Or For Just Cause. I Have Selected these Few Instances

From A Great Number Of The Like Kind,  Which Madox Had Selected

From A Still Greater Number,  Preserved in the Ancient Rolls Of

The Exchequer.

 

Sometimes A Party Litigant Offered the King a Certain Portion, 

A Half,  A Third,  A Fourth,  Payable Out Of The Debts Which He,  As 

Chapter 4 (The Rights And Duties Of Juries In Civil Suits) Pg 117

The Executor Of Justice,  Should Assist In recovering. Theophania

De Westland Agreed to Pay The Half Of Two Hundred and Twelve

Marks,  That She Might Recover That Sum Against James De

Fughleston; Solomon,  The Jew,  Engaged to Pay One Mark

Out Of Every Seven That He Should Recover Against Hugh De La

Hose; Nicholas Morrel Promised to Pay Sixty Pounds,  That The Earl

Of Flanders Might Be Distrained to Pay Him Three Hundred and

Forty-Three Pounds,  Which The Earl Had Taken From Him; And These

Sixty Pounds Were To Be Paid Out Of The First Money That Nicholas

Should Recover From The Earl."   Hume,  Appendix 2.

 

"In The Reign Of Henry Ii,,  The Best And Most Just Of These (The

Norman) Princes,  * *Peter,  Of Blois,  A Judicious And Even Elegant

Writer,  Of That Age,  Gives A Pathetic Description Of The Venality

Of Justice,  And The Oppressions Of The Poor,  * * And He Scruples

Not To Complain To The King himself Of These Abuses. We May Judge

What The Case Would Be Under The Government Of Worse Princes." 

Hume,  Appendix 2.

 

Carte Says:

 

"The Crown Exercised in those Days An Exorbitant And

Inconvenient Power,  Ordering the Justices Of The King'S Court,  In

Suits About Lands,  To Turn Out,  Put,  And Keep In possession,

Which Of The Litigants They Pleased; To Send Contradictory

Orders; And Take Large Sums Of Money From Each; To Respite

Proceedings; To Direct Sentences; And The Judges,  Acting by Their

Commission,  Conceived themselves Bound To Observe Such Orders,

To The Great Delay,  Interruption,  And Preventing of Justice; At

Least,  This Was John'S Practice,"   Carte'S History Of England,

Vol. 1,  P. 832.

 

Hallam Says:

 

"But Of All The Abuses That Deformed the Anglo-Saxon Government,

None Was So Flagitious As The Sale Of Judicial Redress,  The King,

We Are Often Told,  Is The Fountain Of Justice; But In those Ages

It Was One Which Gold Alone Could Unseal. Men Fined (Paid Fines)

To Have Right Done Them; To Sue In a Certain Court; To Implead A

Certain Person; To Have Restitution Of Land Which They Had

Recovered at Law. From The Sale Of That Justice Which Every

Citizen Has A Right To Demand,  It Was An Easy Transition To

Withhold Or Deny It. Fines Were Received for The King'S Help

Against The Adverse Suitor; That Is,  For Perversion Of Justice,

Or For Delay. Sometimes They Were Paid By Opposite Parties,  And,

Of Course,  For Opposite Ends."   2 Middle Ages,  438.

 

In Allusion To The Provision Of Magna Carta On This Subject,

Hallam Says:

 

"A Law Which Enacts That Justice Shall Neither Be Sold,  Denied,

Nor Delayed,  Stamps With Infamy That Government Under Which It

Had Become Necessary."   2 Middle Ages,  451.

 

Chapter 4 (The Rights And Duties Of Juries In Civil Suits) Pg 118

Lingard,  Speaking of The Times Of Henry Ii.,  (Say 1184,) Says:

 

"It Was Universally Understood That Money Possessed greater

Influence Than Justice In the Royal Courts,  And Instances Are On

Record,  In which One Party Has Made The King a Present To

Accelerate,  And The Other By A More Valuable Offer Has Succeeded

In Retarding a Decision. * * But Besides The Fines Paid To The

Sovereigns,  The Judges Often Exacted presents For Themselves,  And

Loud Complaints Existed against Their Venality And Injustice." 

8 Lingard,  231.

 

In The Narrative Of "The Costs And Charges Which I,  Richard De

Anesty,  Bestowed in recovering the Land Of William,  My Uncle,"

(Some Fifty Years Before Magna Carta,) Are The Following items:

 

"To Ralph,  The King'S Physician,  I Gave Thirty-Six Marks And One

Half; To The King an Hundred marks; And To The Queen One Mark Of

Gold." The Result Is Thus Stated. "At Last,  Thanks To Our Lord

The King,  And By Judgment Of His Court,  My Uncle'S Land Was

Adjudged to Me."   2 Palgrave'S Rise And Progress Of The English

Commonwealth,  P. 9 And 24.

 

Palgrave Also Says:

 

"The Precious Ore Was Cast Into The Scales Of Justice,  Even When

Held By The Most Conscientious Of Our Anglo-Saxon Kings. A Single

Case Will Exemplify The Practices Which Prevailed. Alfric,  The

Heir Of 'Aylwin,  The Black,' Seeks To Set Aside The Death-Bed

Bequest,  By Which His Kinsman Bestowed four Rich And Fertile

Manors Upon St. Benedict. Alfric,  The Claimant,  Was Supported by

Extensive And Powerful Connexions; And Abbot Alfwine,  The

Defendant,  Was Well Aware That There Would Be Danger In the

Discussion Of The Dispute In public,  Or Before The Folkmoot,

(People'S Meeting,  Or County Court); Or,  In other Words,  That The

Thanes Of The Shire Would Do Their Best To Give A Judgment In

Favor Of Their Compeer. The Plea Being removed into The Royal

Court,  The Abbot Acted with That Prudence Which So Often Calls

Forth The Praises Of The Monastic Scribe. He Gladly Emptied

Twenty Marks Of Gold Into The Sleeve Of The Confessor,  (Edward,)

And Five Marks Of Gold Presented to Edith,  The Fair,  Encouraged

Her To Aid The Bishop,  And To Exercise Her Gentle Influence In

His Favor. Alfric,  With Equal Wisdom,  Withdrew From Prosecuting

The Hopeless Cause,  In which His Opponent Might Possess An

Advocate In the Royal Judge,  And A Friend In the King'S Consort.

Both Parties. Therefore,  Found It Desirable To Come To An

Agreement."   1 Palgrave'S Rise And Progress,  &C;.,  P. 650.

 

But Magna Carta Has Another Provision For 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

Chapter 4 (The Rights And Duties Of Juries In Civil Suits) Pg 119

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

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