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

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

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 20

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

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;.

 

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 21

 

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

Imprisoned,  Nor Disseized,  Nor Outlawed,  Nor Exiled,  Nor In Any

Manner Destroyed,  Nor Shall The King Proceed Or Send (Any One)

Against Him,  With Force,  Unless By The Judgment Of His Peers,

Or The Law Of The Land."

 

The True Translation Of The Words Nec Super Eum Ibimus,  Nec Super

Eum Mittemus,  In Magna Carta,  Is Thus Made Certain,  As Follows,

"Nor Will We (The King) Proceed Against Him,  Nor Send (Any One)

Against Him,  With Force Or Arms. [15]

 

It Is Evident That The Difference Between The True And False

Translations Of The Words,  Nec Super Eum Ibius,  Nec Super Eum

Mittemus,  Is Of The Highest Legal Importance,  Inasmuch As The True

Translation,  Nor Will We (The King) Proceed Against Him,  Nor Send

(Any One) Against Him By Force Of Arms,  Represents The King Only In

An Executive Character,  Carrying The Judgment Of The Peers And "The

Law Of The Land" Into Execution; Where As The False Translation,  Nor

Will We Pass Upon Him,  Nor Condemn Him,   Gives Color For The

Exercise Of A Judicial Power,  On The Part Of The King,  To Which The

King Had No Right,  But Which,  According To The True Translation,

Belongs Wholly To Th Jury.

 

"Per Legale Judicium Parium Suorum."

 

The Foregoing Interpretation Is Corroborated,  (If It Were Not Already

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 22

Too Plain To Be Susceptible Of Corroboration,) By The True

Interpretation Of The Phrase "Per Legale Judicium Parium Suorum."

 

In Giving This Interpretation,  I Leave Out,  For The Present,  The Word

Legale,  Which Will Be Defined Afterwards.

 

The True Meaning Of The Phrase,  Per Judicium Parium Suorum,  Is,

According To The Sentence Of His Eers. The Word  Judicium,

Judgment,  Has A Technical Meaning In The Law,  Signifying The

Decree Rendered In The Decision Of A Cause. In Civil Suits This

Decision Is Called A Judgment; In Chancery Proceedngs It Is Called A

Decree; In Criminal Actions It Is Called A Sentence,  Or Judgment,

Indifferently. Thus,  In A Criminal Suit,  "A Motion In Arrest Of

Judgment," Means A Motion In Arrest Of Sentence. [16]

In Cases Of Sentence,  Therefore,  In Criminal Suits,  The Words

Sentence And Judgment Are Synonymous Terms. They Are,  To This

Day,  Commonly Used In Law Books As Synonymous Terms. And The

Phrase Per Jndicium Parium Suorum,  Therefore,  Implies That The

Jury Are To Fix The Sentence. 

 

The Word Per Means According To. Otherwise There Is No Sense In

The Phrase Per Judicium Paruim Suorum. There Would Be No Sense

In Saying That A King Might Imprison,  Disseize,  Outlaw,  Exile,  Or

Otherwise Punish A Man,  Or Proceed Against Him,  Or Send Any One

Against Him,  By Force Or Arms,  By A Judgment Of His Peers; But There

Is Sense In Saying That The King May Imprison,  Disseize,  And Punish

A Man,  Or Proceed Against Him,  Or Send Any One Against Him,  By

Force Or Arms,  According To A Judgment,  Or Sentence,  Of His Peers;

Because In That Case The King Would Be Merely Carrying The

Sentence Or Judgment Of The Peers Into Execution.

 

The Word Per,  In The Phrase "Per Judicium Parium Suorum," Of

Course Means Precisely What It Does In The Next Phrase,  "Per Legem

Terrae;" Where It Obviously Means According To,  And Not By,  As It Is

Usually Translated. There Would Be No Sense In Saying That The King

Might Proceed Against A Man By Force Or Arms,  By The Law Of The

Land; But There Is Sense In Saying That He May Proceed Against Him,

By Force Or Arms,  According To The Law Of The Land; Because The

King Would Then Be Acting Only As An Executive Officer,  Carrying

The Law Of The Land Into Execution. Indeed,  The True Meaning Of The

Word By,  As Used In Similar Cases Now,  Always Is According To; As,

For Example,  When We Say A Thing Was Done By The Government,  Or

By The Executive,  By Law,  We Mean Only That It Was Done By Them

According To Law; That Is,  That They Merely Executed The Law.

 

Or,  If We Say That The Word By Signifies By Authority Of,  The Result

Will Still Be The Same; For Nothing Can Be Done By Authority Of Law,

Except What The Law Itself Authorizes Or Directs To Be Done; That Is,

Nothing Can Be Done By Authority Of Law,  Except Simply To Carry The

Law Itself Into Execution. So Nothing Could Be Done By Authority Of

The Sentence Of The Peers,  Or By Authority Of "The Law Of The Land,"

Except What The Sentence Of The Peers,  Or The Law Of The Land,

Themselves Authorized Or Directed To Be Done; Nothing,  In Short,  But

To Carry The Setence Of The Peers,  Or The Law Of The Land,  Themselves