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

Servants,  Appointed By Him,  And

Removable At His Pleasure. In Addition To This,  "The King Himself

Often Sat In His Court,  Which Always Attended His Person. He There

Heard Causes,  And Pronounced Judgment; And Though He Was

Assisted By The Advice Of Other Members,  It Is Not To Be Imagined

That A Decision Could Be Obtained Contrary To His Inclination Or

Opinion."[1] Judges Were In Those Days,  And Afterwards,  Such Abject

Servants Of The King,  That "We Find That King Edward I. (1272 To

1307) Fined And Imprisoned His Judges,  In The Same Manner As

Alfred The Great,  Among The Saxons,  Had Done Before Him,  By The

Sole Exercise Of His Authority."[2]

 

Parliament,  So Far As There Was A Parliament,  Was A Mere Council Of

The King.[3] It Assembled Only At The Pleasure Of The King; Sat Only

During His Pleasure; And When Sitting Had No Power,  So Far As

General Legislation Was Concerned,  Beyond That Of Simply Advising

The King. The Only Legislation To Which Their Assent Was

Constitutionally Necessary,  Was Demands For Money And Military

Services For Extraordinary Occasions. Even Magna Carta Itself

Makes No Provisions Whatever For Any Parliaments,  Except When

The King Should Want Means To Carry On War,  Or To Meet Some Other

Extraordinary Necessity.[4] He Had No Need Of Parliaments To Raise

Taxes For The Ordinary Purposes Of Government; For His Revenues

From The Rents Of The Crown Lands And Other Sources,  Were Ample

For All Except Extraordinary Occasions. Parliaments,  Too,  When

Assembled,  Consisted Only Of Bishops,  Barons,  And Other Great Men

Of The Kingdom,  Unless The King Chose To Invite Others.[5] There

Was No House Of Commons At That Time,  And The People Had No

Right To Be Heard,  Unless As Petitioners.[6]

 

Even When Laws Were Made At The Time Of A Parliament,  They Were

Made In The Name Of The King Alone. Sometimes It Was Inserted In

The Laws,  That They Were Made With The Consent Or Advice Of The

Bishops,  Barons,  And Others Assembled; But Often This Was Omitted.

Their Consent Or Advice Was Evidently A Matter Of No Legal

Importance To The Enactment Or Validity Of The Laws,  But Only

Inserted,  When Inserted At All,  With A View Of Obtaining A More

Willing Submission To Them On The Part Of The People. The Style Of

Enactment Generally Was,  Either "The King Wills And Commands,"

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 1 Pg 17

Or Some Other Form Significant Of The Sole Legislative Authority Of

The King. The King Could Pass Laws At Any Time When It Pleased

Him. The Presence Of A Parliament Was Wholly Unnecessary. Hume

Says,  "It Is Asserted By Sir Harry Spelman,  As An Undoubted Fact,

That,  During The Reigns Of The Norman Princes,  Every Order Of The

King,  Issued With The Consent Of His Privy Council,  Had The Full

Force Of Law."[7] And Other Authorities Abundantly Corroborate This

Assertion.[8]The King Was,  Therefore,  Constitutionally The

Government; And The Only Legal Limitation Upon His Power Seems To

Have Been Simply The Common Law,  Usually Called "The Law Of The

Land," Which He Was Bound By Oath To Maintain; (Which Oath Had

About The Same Practical Value As Similar Oaths Have Always Had.)

This "Law Of The Land" Seems Not To Have Been Regarded At All By

Many Of The Kings,  Except So Far As They Found It Convenient To Do

So,  Or Were Constrained To Observe It By The Fear Of Arousing

Resistance. But As All People Are Slow In Making Resistance,

Oppression And Usurpation Often Reached A Great Height; And,  In The

Case Of John,  They Had Become So Intolerable As To Enlist The Nation

Almost Universally Against Him; And He Was Reduced To The

Necessity Of Complying With Any Terms The Barons Saw Fit To Dictate

To Him.

 

It Was Under These Circumstances,  That The Great Charter Of Englsh

Liberties Was Granted.

 

The Barons Of England,  Sustained By The Common People,  Having

Their King In Their Power,  Compelled Him,  As The Price Of His Throne,

To Pledge Himself That He Would Punish No Freeman For A Violation

Of Any Of His Laws,  Unless With The Consent Of The Peers   That Is,  The

Equals   Of The Accused.

 

The Question Here Arises,  Whether The Barons And People Intended

That Those Peers (The Jury) Should Be Mere Puppets In The Hands Of

The King,  Exercising No Opinion Of Their Own As To The Intrinsic

Merits Of The Accusations They Should Try,  Or The Justice Of The Laws

They Should Be Called On To Enforce? Whether Those Haughty And

Victorious Barons,  When They Had Their Tyrant King At Their Feet,

Gave Back To Him His Throne,  With Full Power To Enact Any

Tyrannical Laws He Might Please,  Reserving Only To A Jury (" The

Country") The Contemptible And Servile Privilege Of Ascertaining,

(Under The Dictation Of The King,  Or His Judges,  As To The Laws Of

Evidence),  The Simple Fact Whether Those Laws Had Been

Transgressed? Was This The Only Restraint,  Which,  When They Had All

Power In Their Hands,  They Placed Upon The Tyranny Of A King,

Whose Oppressions They Had Risen In Arms To Resist? Was It To

Obtain Such A Charter As That,  That The Whole Nation Had United,  As It

Were,  Like One Man,  Against Their King? Was It On Such A Charter

That They Intended To Rely,  For All Future Time,  For The Security Of

Their Liberties? No. They Were Engaged In No Such Senseless Work

As That. On The Contrary,  When They Required Him To Renounce

Forever The Power To Punish Any Freeman,  Unless By The Consent Of

His Peers,  They Intended Those Powers Should Judge Of,  And Try,  The

Whole Case On Its Merits,  Independently Of All Arbitrary Legislation,

Or Judicial Authority,  On The Part Of The King. In This Way They Took

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 1 Pg 18

The Liberties Of Each Individual   And Thus The Liberties Of The Whole

People   Entirely Out Of The Hands Of The King,  And Out Of The Power

Of His Laws,  And Placed Them In The Keeping Of The People

Themselves. And This Itwas That Made The Trial B Jury The Palladium

Of Their Liberties.

 

The Trial By Jury,  Be It Observed,  Was The Only Real Barrier

Interposed By Them Against Absolute Despotism. Could This Trial,

Then,  Have Been Such An Entire Farce As It Necessarily Must Have

Been,  If The Jury Had Had No Power To Judge Of The Justice Of The

Laws The People Were Required To Obey? Did It Not Rather Imply That

The Jury Were To Judge Independently And Fearlessly As To

Everything Involved In The Charge,  And Especially As To Its Intrinsic

Justice,  And Thereon Give Their Decision,  (Unbiased By Any

Legislation Of The King,) Whether The Accused Might Be Punished?

The Reason Of The Thing,  No Less Than The Historical Celebrity Of The

Events,  As Securing The Liberties Of The People,  And The Veneration

With Which The Trial By Jury Has Continued To Be Regarded,

Notwithstanding Its Essence And Vitality Have Been Almost Entirely

Extracted From It In Practice,  Would Settle The Question,  If Other

Evidences Had Left The Matter In Doubt.

 

Besides,  If His Laws Were To Be Authoritative With The Jury,  Why

Should John Indignantly Refuse,  As At First He Did,  To Grant The

Charter,  (And Finally Grant It Only When Brought To The Last

Extremity,) On The Ground That It Deprived Him Of All Power,  And

Left Him Only The Name Of A King? He Evidently Understood That The

Juries Were To Veto His Laws,  And Paralyze His Power,  At Discretion,

By Forming Their Own Opinions As To The True Character Of The

Offences They Were To Try,  And The Laws They Were To Be Called On To

Enforce; And That "The King Wills And Commands" Was To Have No

Weight With Them Contrary To Their Own Judgments Of What Was

Intrinsically Right.[9]

 

The Barons And People Having Obtained By The Charter All The

Liberties They Had Demanded Of The King,  It Was Further Provided By

The Charter Itself That Twenty-Fie Barons Should Be Appointed By The

Barons,  Out Of Their Number,  To Keep Special Vigilance In The

Kingdom To See That The Charter Was Observed,  With Authority To

Make War Upon The King In Case Of Its Violation. The King Also,  By

The Charter,  So Far Absolved All The People Of The Kingdom From

Their Allegiance To Him,  As To Authorize And Require Them To Swear

To Obey The Twenty-Five Barons,  In Case They Should Make War Upon

The King For Infringement Of The Charter. It Was Then Thought By The

Barons And People,  That Something Substantial Had Been Done For

The Security Of Their Liberties.

 

This Charter,  In Its Most Essential Features,  And Without Any

Abatement As To The Trial By Jury,  Has Since Been Confirmed More

Than Thirty Times; And The People Of England Have Always Had A

Traditionary Idea That It Was Of Some Value As A Guaranty Against

Oppression. Yet That Idea Has Been An Entire Delusion,  Unless The

Jury Have Had The Right To Judge Of The Justice Of The Laws They Were

Called On To Enforce.

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 19

The Language Of Magna Carta

 

The Language Of The Great Charter Establishes The Same Point That

Is Established By Its History,  Viz.,  That It Is The Right And Duty Of The

Jury To Judge Of The Justice Of The Laws.

 

The Chapter Guaranteeing The Trial By Jury Is In These Words:

"Nullus Liber Homo Capiatur,  Vel Imprisonetur,  Aut Disseisetur,  Aut

Utlagetor,  Aut Exuletur,  Aut Aliquo Modo Destruatur; Nec Super Eum

Ibimus,  Nec Super Eum Mittemus,  Nisi Per Legale Judicium Parium

Suorum,  Vel Per Legem Terrae."[10]

 

The Corresponding Chapter In The Great Charter,  Granted By Henry

Iii,  (1225) And Confirmed By Edward I,  (1297,) (Which Charter Is

Now Considered The Basis Of The English Laws And Constitution,) Is

In Nearly The Same Words,  As Follows:

 

"Nullus Liber Homo Capiatur,  Vel Imprisonetur,  Aut Disseisetur De

Libero Tenemento,  Vel Libertatibus,  Vel Liberis Consuetudinibus Suis,

Aut Utlagetur,  Aut Exuletur,  Aut Aliquo Modo Destruatur,  Nec Super

Eum Ibimus,  Nec Super Eum Mittemus,  Nisi Per Legale Judicium

Parium Suorum,  Vel Per Legem Terrae."

 

The Most Common Translation Of These Words,  At The Present Day,  Is

As Follows:

 

"No Freeman Shall Be Arrested,  Or Imprisoned,  Or Deprived Of His

Freehold,  Or His Liberties,  Or Free Customs,  Or Outlawed,  Or Exiled,  Or

In Any Manner Destroyed,  Nor Will We (The King) Pass Upon Him,  Nor

Condemn Him,  Unless By The Judgment Of His Peers,  Or The Law Of

The