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

(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]

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 1 (The History Of Magna Carta) Pg 22

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 (The Language Of Magna Carta) Pg 23

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:

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 24

 

"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 Land."

 

"Nec Super Eum Ibimus,  Nec Super Eum Mittemus."

 

There Has Been Much Confusion And Doubt As To The True Meaning

Of The Words,  "Nec Super Eum Ibimus,  Neo Super Eum Mittemus."

The More Common Rendering has Been,  "Nor Wilt We Pass Upon

Him,  Nor Condemn Him." But Some Have Translated them To Mean,

"Nor Will We Pass Upon Him,  Nor Commit Him To Prison." Coke

Gives Still A Different Rendering,  To The Effect That "No Man Shall Be

Condemned at The King'S Suit,  Either Before The King in his Bench,

Nor Before Any Other Commissioner Or Judge Whatsoever." [11]

 

But All These Translations Are Clearly Erroneous. In the First Place,

"Nor Will We Pass Upon Him,"   Meaning thereby To Decide Upon His

Guilt Or Innocence Judicially   Is Not A Correct Rendering of The

Words,  "Nec Super Eum Ibimus." There Is Nothing whatever,  In

These Latter Words,  That Indicates Judicial Action Or Opinion At All.

The Words,  In their Common Signification,  Describe Physical Action

Alone. And The True Translation Of Them,  As Will Hereafter Be Seen,

Is,  "Nor Will We Proceed against Him," Executively.

 

In The Second Place,  The Rendering,  "Nor Will We Condemn Him,"

Bears Little Or No Analogy To Any Common,  Or Even Uncommon,

Signification Of The Words "Nec Super Eum Mittemus." There Is

Nothing in these Latter Words That Indicates Judicial Action Or

Decision. Their Common Signification,  Like That Of The Words Nec

Super Eum Ibimus,  Describes Physical Action Alone. "Nor Will We

Send Upon (Or Against) Him," Would Be The Most Obvious

Translation,  And,  As We Shall Hereafter See,  Such Is The True

Translation.

 

But Although These Words Describe Physical Action,  On The Part Of

The King,  As Distinguished from Judicial,  They Nevertheless Do Not

Mean,  As One Of The Translations Has It,  "Nor Will We Commit Him To

Prison;" For That Would Be A Mere Repetition Of What Had Been

Already Declared by The Words "Nec Imprisonetur." Besides,  There Is

Nothing about Prisons In the Words "Nec Super Eum Mittemus;"

Nothing about Sending him Anywhere; But Only About Sending

(Something or Somebody) Upon Him,  Or Against Him   That Is,

Executively.

 

Coke'S Rendering is,  If Possible,  The Most Absurd And Gratuitous Of

All. What Is There In the Words,  "Nec Super Eum Mittemus," That Can

Be Made To Mean "Nor Shall He Be Condemned before Any Other

Commissioner Or Judge Whatsoever."? Clearly There Is Nothing. The

Whole Rendering is A Sheer Fabricatin. And The Whole Object Of It Is

To Give Color For The Exercise Of A Judicial Power,  By The King,  Or

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 25

His Judges,  Which Is Nowhere Given Them.

 

Neither The Words,  "Nec Super Eum Ibimus,  Nec Super Eum

Mittemus," Nor Any Other Words In the Whole Chapter,  Authorize,

Provide For,  Describe,  Or Suggest,  Any Judicial Action Whatever,  On

The Part Either Of The King,  Or Of His Judges,  Or Of Anybody,  Except

The Peers,  Or Jury. There Is Nothing about The King'S Judges At All.

And,  There Is Nothing whatever,  In the Whole Chapter,  So Far As

Relates To The Action Of The King,  That Describes Or Suggests Anything

But Executive Action.[12]

 

But That All These Translations Are Certainly Erroneous,  Is Proved by

A Temporary Charter,  Granted by John A Short Time Previous To The

Great Charter,  For The Purpose Of Giving an Opportunity For

Conference,  Arbitration,  And Reconciliation. Between Him And His

Barons. It Was To Have Force Until The Matters In controversy

Between Them Could Be Submitted to The Pope,  And To Other Persons

To Be Chosen,  Some By The King,  And Some By The Barons. The

Words Of The Charter Are As Follows:

 

"Sciatis Nos Concessisse Baronibus Nostris Qui Contra Nos Sunt Quod

Nec Eos Nec Homines Suos Capiemus,  Nec Disseisiemus Nec Super

Eos Per Vim Vel Per Arma Ibimus Nisi Per Legem Regni Nostri Vel Per

Judicium Parium Suorum In curia Nostra Donec Consideratio Facta

Fuerit," &C;.,  &C;.

 

That Is,  "Know That We Have Granted to Our Barons Who Are

Opposed to Us,  That We Will Neither Arrest Them Nor Their Men,  Nor

Disseize Them,  Nor Will We Proceed against Them By Force Or By

Arms,  Unless By The Law Of Our Kingdom,  Or By The Judgment Of

Their Peers In our Court,  Until Consideration,  Shall Be Had," &C;.,

&C;.

 

A Copy Of This Charter Is Given In a Note In blackstone'S

Introduction To The Charter.[13]

 

Mr. Christian Speaks Of This Charter As Settling the True Meaning of

The Corresponding clause Of Magna Carta,  On The Principle Tat Laws

And Charters On The Same Subject Are To Be Construed with Reference

To Each Other. See 3 Christin'S Blackstone,  41,  Note.

 

The True Meaning of The Words,  Nec Super Eum Ibimus,  Nec Super

Eum Mittemus,  Is Also Proved by The "Articles Of The Great Charter

Of Liberties," Demanded of The King by The Barons,  And Agreed to By

The King,  Under Seal,  A Few Days Before The Date Of The Charter,  And

From Which The Charter Was Framed. [14]

Here The Words Used are These:

 

"Ne Corpus Liberi Hominis Capiatur Nec Imprisonetur Nec

Disseisetur Nec Ut1Agetur Nec Exuletur Nec Aliquo Modo Destruatur

Nec Rex Eat Vel Mittat Super Eun Vi Nisi Per Judicium Pariurn

Suorum Vel Per Legem Terrae."

 

That Is,  "The Body Of A Freeman Shall Not Be Arrested,  Nor

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 26