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

Chapter 7 (Illegal Judges) Pg 158

Presented the Last Person To A Church; Mort De Ancestor,  Whether

The Last Possessor Was Seized of Land In demesne Of His Own Fee;

And Novel Disseisin,  Whether The Claimant Had Been Unjustly

Disseized of His Freehold.

 

[3] He Has No Power To Do It,  Either With,  Or Without,  The King'S

Command. The Prohibition Is Absolute,  Containing no Such

Qualification As Is Here Interpolated,  Viz.,  "Without The King'S

Command." If It Could Be Done With The King'S Command,  The King

Would Be Invested with Arbitrary Power In the Matter.

 

[4] The Absurdity Of This Doctrine Of Coke Is Made More Apparent

By The Fact That,  At That Time,  The "Justices" And Other Persons

Appointed by The King to Hold Courts Were Not Only Dependent Upon

The King for Their Offices,  And Removable At His Pleasure,  But

That The Usual Custom Was,  Not To Appoint Them With Any View To

Permanency,  But Only To Give Them Special Commissions For Trying

A Single Cause,  Or For Holding a Single Term Of A Court,  Or For

Making a Single Circuit; Which,  Being done,  Their Commissions

Expired. The King,  Therefore,  Could,  And Undoubtedly Did,  Appoint

Any Individual He Pleased,  To Try Any Cause He Pleased,  With A

Special View To The Verdicts He Desired to Obtain In the

Particular Cases.

 

This Custom Of Commissioning particular Persons To Hold Jury

Trials,  In criminal Cases,  (And Probably Also In civil Ones,) Was

Of Course A Usurpation Upon The Common Law,  But Had Been

Practised more Or Less From The Time Of William The Conqueror.

Palgrave Says:

 

"The Frequent Absence Of William From His Insular Dominions

Occasioned another Mode Of Administration,  Which Ultimately

Produced still Greater Changes In the Law. It Was The Practice Of

Appointing justiciars To Represent The King'S Person,  To Hold His

Court,  To Decide His Pleas,  To Dispense Justice On His Behalf,  To

Command The Military Levies,  And To Act As Conservators Of The

Peace In the King'S Name. [5] .. The Justices Who Were Assigned

In The Name Of The Sovereign,  And Whose Powers Were Revocable At

His Pleasure,  Derived their Authority Merely From Their Grant...

Some Of Those Judges Were Usually Deputed for The Purpose Of

Relieving the King from The Burden Of His Judicial Functions...

The Number As Well As The Variety Of Names Of The Justices

Appearing in the Early Chirographs Of 'Concords,' Leave Reason

For Doubting whether,  Anterior To The Reign Of Henry Iii.,  (1216

To 1272,) A Court,  Whose Members Were Changing at Almost Every

Session,  Can Be Said To Have Been Permanently Constituted. It

Seems More Probable That The Individuals Who Composed the

Tribunal Were Selected as Suited the Pleasure Of The Sovereign,

And The Convenience Of The Clerks And Barons; And The History Of

Our Legal Administration Will Be Much Simplified,  If We Consider

All Those Courts Which Were Afterwards Denominated the

Exchequer,  The King'S Bench,  The Common Pleas,  And The Chancery, 

As Being originally Committees,  Selected by The King when Occasion

Required,  Out Of A Large Body,  For The Despatch Of Peculiar

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Branches Of Business,  And Which Committees,  By Degrees,  Assumed

An Independent And Permanent Existence... Justices Itinerant,

Who,  Despatched throughout The Land,  Decided the ' Pleas Of The

Crown,' May Be Obscurely Traced in the Reign Of The Conqueror;

Not,  Perhaps,  Appointed with Much Regularity,  But Despatched upon

Peculiar Occasions And Emergencies."   1 Palgrave'S Rise And

Progress,  &C;.,  P. 289 To 293.

 

The Following statute,  Passed in 1354,  (139 Years After Magna

Carta,) Shows That Even After This Usurpation Of Appointing

"Justices " Of His Own,  To Try Criminal Cases,  Had Probably

Become Somewhat Established in practice,  In defiance Of Magna

Carta,  The King was In the Habit Of Granting special Commissions

To Still Other Persons,  (Especially To Sheriffs,    His Sheriffs,

No Doubt,) To Try Particular Cases:

 

"Because That The People Of The Realm Have Suffered many Evils

And Mischiefs,  For That Sheriffs Of Divers Counties,  By Virtue Of

Commissions And General Writs Granted to Them At Their Own Suit,

For Their Singular Profit To Gain Of The People,  Have Made And

Taken Divers Inquests To Cause To Indict The People At Their

Will,  And Have Taken Fine And Ransom Of Them To Their Own Use,

And Have Delivered them; Whereas Such Persons Indicted were Not

Brought Before The King'S Justices To Have Their Deliverance,  It

Is Accorded and Established,  For To Eschew All Such Evils And

Mischiefs,  That Such Commissions And Writs Before This Time Made

Shall Be Utterly Repealed,  And That From Henceforth No Such

Commissions Shall Be Granted."   St. 28 Edward Iii.,  Ch. 9,

(1354.)

 

How Silly To Suppose That The Illegality Of These Commissions To

Try Criminal Eases,  Could Have Been Avoided by Simply Granting

Them To Persons Under The Title Of "Justices," Instead Of

Granting them To "Sheriffs." The Statute Was Evidently A Cheat,

Or At Least Designed as Such,  Inasmuch As It Virtually Asserts

The Right Of The King to Appoint His Tools,  Under The Name Of

"Justices," To Try Criminal Cases,  While It Disavows His Right To

Appoint Them Under The Name Of "Sheriffs."

 

Millar Says: "When The King'S Bench Came To Have Its Usual

Residence At Westminster,  The Sovereign Was Induced to Grant

Special Commissions,  For Trying particular Crimes,  In such Parts

Of The Country As Were Found Most Convenient; And This Practice

Was Gradually Modeled into A Regular Appointment Of Certain

Commissioners,  Empowered,  At Stated seasons,  To Perform Circuits

Over The Kingdom,  And To Hold Courts In particular Towns,  For The

Trial Of All Sorts Of Crimes. These Judges Of The Circuit,

However,  Never Obtained an Ordinary Jurisdiction,  But Continued,

On Every Occasion,  To Derive Their Authority From Two Special

Commissions: That Of Oyer And Terminer,  By Which They Were

Appointed to Hear And Determine All Treasons,  Felonies And

Misdemeanors,  Within Certain Districts; And That Of Gaol

Delivery,  By Which They Were Directed to Try Every Prisoner

Confined in the Gaols Of The Several Towns Falling under Their

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Inspection."   Millar'S Hist. View Of Eng. Gov.,  Vol. 2,  Ch. 7,

P. 282.

 

The Following extract From Gilbert Shows To What Lengths Of

Usurpation The Kings Would Sometimes Go,  In their Attempts To Get

The Judicial Power Out Of The Hands Of The People,  And Entrust It

To Instruments Of Their Own Choosing:

 

"From The Time Of The Saxons," (That Is,  From The Commencement

Of The Reign Of William The Conqueror,) "Till The Reign Of Edward

The First,  (1272 To 1307,) The Several County Courts And Sheriffs

Courts Did Decline In their Interest And Authority. The Methods

By Which They Were Broken Were Two-Fold. First,  By Granting

Commissions To The Sheriffs By Writ Of Justicies,  Whereby The

Sheriff Had A Particular Jurisdiction Granted him To Be Judge Of

A Particular Cause,  Independent Of The Suitors Of The County

Court," (That Is,  Without A Jury;) "And These Commissions Were

After The Norman Form,  By Which (According to Which) All Power Of

Judicature Was Immediately Derived from The King."   Gilbert On

The Court Of Chancery,  P. L.

 

The Several Authorities Now Given Show That It Was The Custom Of

The Norman Kings,  Not Only To Appoint Persons To Sit As Judges In

Jury Trials,  In criminal Cases,  But That They Also Commissioned

Individuals To Sit In singular And Particular Eases,  As Occasion

Required; And That They Therefore Readily Could,  And Naturally

Would,  And Therefore Undoubtedly Did,  Commission Individuals

With A Special View To Their Adaptation Or Capacity To Procure Such

Judgments As The Kings Desired.

 

The Extract From Gilbert Suggests Also The Usurpation Of The

Norman Kings,  In their Assumption That They,  (And Not The People,

As By The Common Law,) Were The Fountains Of Justice. It Was Only

By Virtue Of This Illegal Assumption That They Could Claim To

Appoint Their Tools To Hold Courts.

 

All These Things Show How Perfectly Lawless And Arbitrary The

Kings Were,  Both Before And After Magna Carta,  And How Necessary

To Liberty Was The Principle Of Magna Carta And The Common Law,

That No Person Appointed by The King should Hold Jury Trials In

Criminal Cases.

 

[5] In this Extract,  Palgrave Seems To Assume That The King

Himself Had A Right To Sit As Judge,  In jury Trials,  In the

County Courts,  In both Civil And Criminal Cases. I Apprehend He

Had No Such Power At The Common Law,  But Only To Sit In the Trial

Of Appeals,  And In the Trial Of Peers,  And Of Civil Suits In

Which Peers Were Parties,  And Possibly In the Courts Of Ancient

Demesne.

 

[6] The Opinions And Decisions Of Judges And Courts Are

Undeserving of The Least Reliance,  (Beyond The Intrinsic Merit Of

The Arguments Offered to Sustain Them,) And Are Unworthy Even To

Be Quoted as Evidence Of The Law,  When Those Opinions Or

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Decisions Are Favorable To The Power Of The Government,  Or

Unfavorable To The Liberties Of The People. The Only Reasons That

Their Opinions,  When In favor Of Liberty,  Are Entitled to Any

Confidence,  Are,  First,  That All Presumptions Of Law Are In favor

Of Liberty; And,  Second,  That The Admissions Of All Men,  The

Innocent And The Criminal Alike,  When Made Against Their Own

Interests,  Are Entitled to Be Received as True,  Because It Is

Contrary To Human Nature For A Man To Confess Anything but Truth

Against Himself.

 

More Solemn Farces,  Or More Gross Impostures,  Were Never

Practised upon Mankind,  Than Are All,  Or Very Nearly All,  Those

Oracular Responses By Which Courts Assume To Determine That

Certain Statutes,  In restraint Of Individual Liberty,  Are Within

The Constitutional Power Of The Government,  And Are Therefore

Valid And Binding upon The People.

 

The Reason Why These Courts Are So Intensely Servile And Corrupt,

Is,  That They Are Not Only Parts Of,  But The Veriest Creatures

Of,  The Very Governments Whose Oppressions They Are Thus Seeking

To Uphold. They Receive Their Offices And Salaries From,  And Are

Impeachable And