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

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

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

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 27

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

Into Execution.

 

Doing a Thing by Law,  Or According to Law,  Is Only Carrying the Law

Into Execution. And Punishing a Man By,  Or According to,  The

Sentence Or Judgment Of His Peers,  Is Only Carrying that Sentence Or

Judgment Into Execution.

 

If These Reasons Could Leave Any Doubt That The Word Per Is To Be

Translated according to,  That Doubt Would Be Removed by The Terms

Of An Antecedent Guaranty For The Trial By Jury,  Granted by The

Emperor Conrad,  Of Germany,   [17] Two Hundred years Before

Magna Carta. Blackstone Cites It As Follows:   (3 Blackstone,  350.)

"Nemo Beneficium Suum Perdat,  Nisi Secundum Consuetu-Dinem

Antecessorum Nostrorum,  Et Judicium Parium Suorum." That Is,  No

One Shall Lose His Estate,   [18] Unless According to ("Secundum")

The Custom (Or Law) Of Our Ancestors,  And (According to) The

Sentence (Or Judgment) Of His Peers.

 

The Evidence Is Therefore Conclusive That The Phrase Per Judicium

Parian Suorum Means According to The Sentence Of His Peers; Thus

Implying hat The Jury,  And Not The Government,  Are To Fix The

Sentence.

 

If Any Additional Proof Were Wanted that Juries Were To Fix The

Sentence,  It Would Be Found In the Following provisions Of Magna

Carta,  Viz.:

 

"A Freeman Shall Not Be Amerced for A Small Crime,  (Delicto,) But

According to The Degree Of The Crime; And For A Great Crime In

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 28

Proportion To The Magnitude Of It,  Saving to Him His Contenement;

[19] And After The Same Manner A Merchant,  Saving to Him His

Merchandise. And A Villein Shall Be Amerced after The Same

Manner,  Aving to Him His Waynage,   [20] If He Fall Under Our Mercy;

And None Of The Aforesaid Amercements Shall Be Imposed,  (Or

Assessed,  Ponatur,) But By The Oath Of Honest Men Of The

Neighborhood. Earls And Barons Shall Not Be Amerced but By Their

Peers,  And According to The Degree Of Their Crime." [21]

 

Pecuniary Punishments Were The Most Common Punishments At

That Day,  And The Foregoing provisions Of Magna Carta Show That

The Amount Of Those Punishments Was To Be Fixed by The Jury.

Fines Went To The King,  And Were A Source Of Revenue; And If The

Amounts Of The Fines Had Been Left To Be Fixed by The King,  He

Would Have Had A Pecuniary Temptation To Impose Unreasonable

And Oppressive Ones. So,  Also,  In regard To Other Punishments Than

Fines. If It Were Left To The King to Fix The Punishment,  He Might

Often Have Motives To Inflict Cruel And Oppressive Ones. As It Was

The Object Of The Trial By Jury To Protect The People Against All

Possible Oppression From The King,  It Was Necessary That The Jury,

And Not The King,  Should Fix The Punishments. [22]

 

"Legale."

 

The Word "Legale," In the Phrase "Per Legale Judicium Parium

Suorum,"Doubtless Means Two Things.1. That The Sentence Must Be

Given In a Legal Manner; That Is,  By The Legal Number Of Jurors,

Legally Empanelled and Sworn To Try The Cause; And That They Give

Their Judgment Or Sentence After A Legal Trial,  Both In form And

Substance,  Has Been Had. 2. That The Sentence Shall Be For A Legal

Cause Or Offence. If,  Therefore,  A Jury Should Convict And Sentence A

Man,  Either Without Giving him A Legal Trial,  Or For An Act That Was

Not Really And Legally Criminal,  The Sentence Itself Would Not Be

Legal; And Consequently This Clause Forbids The King to Carry Such A

Sentence Into Execution; For The Clause Guarantees That He Will

Execute No Judgment Or Sentence,  Except It Be Legale Judicium,A

Legal Sentence. Whether A Sentence Be A Legal One,  Would Have To

Be Ascertained by The King or His Judges,  On Appeal,  Or Might Be

Judged of Informally By The King himself.

 

The Word "Legale"Clearly Did Not Mean That The Judicium Parium

Suorum (Judgment Of His Peers) Should Be A Sentence Which Any

Law (Of The King) Should Require The Peers To Pronounce; For In that

Case The Sentence Would Not Be The Sentence Of The Peers,  But Only

The Sentence Of The Law,  (That Is,  Of The King); And The Peers Would

Be Only A Mouthpiece Of The Law,  (That Is,  Of The King,) In uttering

It.

 

"Per Legem Terrae."

 

One Other Phrase Remains To Be Explained,  Viz.,  "Per Legem Terrae,"

"By The Law Of The Land."

 

All Writers Agree That This Means The Common Law.Thus,  Sir

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 29

Matthew Hale Says:

 

"The Common Law Is Sometimes Called,  By Way Of Eminence,  Lex

Terrae,As In the Statute Of Magna Carta,Chap. 29,  Where Certainly

The Common Law Is Principally Intended by Those Words,  Aut Per

Legem Terrae;As Appears By The Exposition Thereof In several

Subsequent Statutes; And Particularly In the Statute Of 28 Edward

Iii.,  Chap. 3,  Which Is But An Exposition And Explanation Of That

Statute. Sometimes It Is Called lex Angliae,As In the Statute Of

Merton,  Cap. 9,  "Olurnus Leqes Angliae Mutari,"&C;.,  (We Will That

The Laws Of England Be Not Changed). Sometimes It Is Called lex Et

Consuetudo Regni(The Law And Custom Of The Kingdom); As In all

Commissions Of Oyer And Terminer; And In the Statutes Of 18

Edward I.,  Cap.  ,  And De Quo Warranto,And Divers Others. But Most

Commonly It Is Called the Common Law,  Or The Common Law Of

England; As In the Statute Articuli Super Chartas,Cap. 15,  In the

Statute 25 Edward Iii.,  Cap. 5,  (4,) And Infinite More Records And

Statutes."   1 Hale'S History Of The Common Law,  128.

 

This Common Law,  Or "Law Of The Land," The King was Sworn To

Maintain.This Fact Is Recognized by A Statute Made At Westminster,

In 1346,  By Edward Iii.,  Which