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

To Any Common

Law Punishments Of Six Hundred years Ago,  If,  Indeed,  There Were

Any Such At That Time. It Is Enough For Us To Know   And This Is What

Is Material For Us Know   That The Jury Fixed the Punishments,  In all

Cases,  Unless They Were Fixed by The Common Law; That Magna

Carta Allowed no Punishments To Be Prescribed by Statute   That Is,

By The Legislative Power   Nor In any Other Manner By The King,  Or

His Judges,  In any Case Whatever; And,  Consequently,  That All

Statutes Prescribing particular Punishmnts For Particular Offences,

Or Giving the King'S Judges Any Authority To Fix Punishments,  Were

Void.

 

If The Power To Fix Punishments Had Been Left In the Hands Of The

King,  It Would Have Given Him A Power Of Oppression,  Which Was

Liable To Be Greatly Abused; Which There Was No Occasion To Leave

With Him; And Which Would Have Been Incongruous With The Whole

Object Of This Chapter Of Magna Carta; Which Object Was To Take All

Discretionary Or Arbitrary Power Over Individuals Entirely Out Of The

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 33

Hands Of The King,  And His Laws,  And Entrust It Only To The Common

Law,  And The Peers,  Or Jury   That Is,  The People. What Lex Terrae

Did Authorize.

 

But Here The Question Arises,  What Then Did Legem Terrae" Authorize

The King,  (That Is,  The Government,) To Do In the Case Of An Accused

Person,  If It Neither Authorized any Other Trial Than That By Jury,  Nor

Any Other Punishments Than Those Fixed by Juries?

 

The Answer Is,  That,  Owing to The Darkness Of History On The Point,

It Is Probably Wholly Impossible,  At This Day,  To State,  With Any

Certainty Or Precision,  Anything whatever That The Legem Terrae Of

Magna Carta Did Authorize The King,  (That Is,  The Government,) To

Do,  (If,  Indeed,  It Authorized him To Do Anything,) In the Case Of

Criminals,  Other Than To Have Them,  Tried and Sentenced by Their

Peers,  For Common Law Crimes; And To Carry That Sentence Into

Execution.

 

The Trial By Jury Was A Part Of Legem Terrae,  And We Have The Means

Of Knowing what The Trial By Jury Was. The Fact That The Jury Were

To Fix The Sentence,  Implies That They Were To Try The Accused;

Otherwise They Could Not Know What Sentence,  Or Whether Any

Sentence,  Ought To Be Inflicted upon Him. Hence It Follows That The

Jury Were To Judge Of Everything involved in the Trial; That Is,  They

Were To Judge Of The Nature Of The Offence,  Of The Admissibility And

Weight Of Testimony,  And Of Everything else Whatsoever That Was Of

The Essence Of The Trial. If Anything whatever Could Be Dictated to

Them,  Either Of Law Or Evidence,  The Sentence Would Not Be Theirs,

But Would Be Dictated to Them By The Power That Dictated to Them

The Law Or Evidence. The Trial Nd Sentence,  Then,  Were Wholly In the

Hands Of The Jury.

 

We Also Have Sufficient Evidence Of The Nature Of The Oath

Administered to Jurors In criminal Cases. It Was Simply,  That They

Would Neither Convict The Innocent,  Nor Acquit The Guilty. This Was

The Oath In the Saxon Times,  And Probably Continued to Be Until

Magna Carta.

 

We Also Know That,  In case Of Conviction,  The Sentence Of The Jury

Was Not Necessarily Final; That The Accused had The Right Of Appeal

To The King and His Judges,  And To Demand Either A New Trial,  Or An

Acquittal,  If The Trial Or Conviction Had Been Against Law. So Much, 

Therefore,  Of The Legem Terrae Of Magna Carta,  We Know With

Reasonable Certainty.

 

We Also Know That Magna Carta Provides That "No Bailiff (Balivus)

Shall Hereafter Put Any Man To His Law,  (Put Him On Trial,) On His

Single Testimony,  Without Credible Witnesses Brought To Support It."

Coke Thinks "That Under This Word Balivus,  In this Act,  Is

Comprehended every Justice,  Minister Of The King,  Steward Of The

King,  Steward And Bailiff." (2 Inst. 44.) And In support Of This Idea

He Quotes From A Very Ancient Law Book,  Called the Mirror Of

Justices,  Written In the Time Of Edward I.,  Within A Century After

Magna Carta. But Whether This Were Really A Common Law

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 34

Principle,  Or Whether The Provision Grew Out Of That Jealousy Of The

Government Which,  At The Time Of Magna Carta,  Had Reached its

Height,  Cannot Perhaps Now Be Determined.

 

We Also Know That,  By Magna Carta,  Amercements,  Or Fines,  Could

Not Be Imposed to The Ruin Of The Criminal; That,  In the Case Of A

Freeman,  His Contenement,  Or Means Of Subsisting in the Condition

Of A Freeman,  Must Be Saved to Him; That,  In the Case Of A Merchant,

His Merchandise Must Be Spared; And In the Case Of A Villein,  His

Waynage,  Or Plough-Tackle And Carts. This Also Is Likely To Have

Been A Principle Of The Common Law,  Inasmuch As,  In that Rude Age,

When The Means Of Gettin Employment As Laborers Were Not What

They Are Now,  The Man And His Family Would Probably Have Been

Liable To Starvation,  If These Means Of Subsistence Had Been Taken

From Him.

 

We Also Know,  Generally,  That,  At The Time Of Magna Carta,  All Acts

Intrinsically Criminal,  All Trespasses Against Persons And Property,

Were Crimes,  According to Lex Terra,  Or The Common Law.

Beyond The Points Now Given,  We Hardly Know Anything,  Probably

Nothing with Certainty,  As To What The "Legem Terran" Of Magna

Carta Did Authorize,  In regard To Crimes. There Is Hardly Anything

Extant That Can Give Us Any Real Light On The Subject.

It Would Seem,  However,  That There Were,  Even At That Day,  Some

Common Law Principles Governing arrests; And Some Common Law

Forms And Rules As To Holding a Man For Trial,  (By Bail Or

Imprisonment;) Putting him On Trial,  Such As By Indictment Or

Complaint; Summoning and Empanelling jurors,  &C;.,  &C;.

Whatever These Common Law Principles Were,  Magna Carta

Requires Them To Be Observed; For Magna Carta Provides For The

Whole Proceedings,  Commencing with The Arrest,  ("No Freeman

Shall Be Arrested," &C;.,) And Ending with The Execution Of The

Sentence. And It Provides That Nothing shall Be Done,  By The

Government,  From Beginning to End,  Unless According to The

Sentence Of The Peers,  Or "Legem Terrae," The Common Law. The Trial

By Peers Was A Part Of Legem Terrae,  And We Have Seen That The

Peers Must Necessarily Have Governed the Whole Proceedings At The

Tria1. But All The Proceedings For Arresting the Man,  And Bringing

Him To Trial,  Must Have Been Had Before The Case Could Come Under

The Cognizance Of The Peers,  And They Must,  Therefore,  Have Been

Governed by Other Rules Than The Discretion Of The Peers. We May

Conjecture,  Although We Cannot Perhaps Know With Much Certainty,

That The Lex Terrae,  Or Common Law,  Governing these Other

Proceedings,  Was Somewhat Similar To The Common Law Principle,

On The Same Points,  At The Present Day. Such Seem To Be The

Opinions Of Coke,  Who Says That The Phrase Nisi Per Legem Terrae

Means Unless By Due Process Of Law. Thus,  He Says: "Nisi Per Legem

Terrae. But By The Law Of The Land.

 

For The True Sense And Exposition Of These Words,  See The Statute F

37 Edw. Iii.,  Cap. 8,  Where The Words,  By The Law Of The Land,  Are

Rendered without Due Process Of Law; For There It Is Said,  Though It

Be Contained in the Great Charter,  That No Man Be Taken,

Imprisoned,  Or Put Out Of His Freehold,  Without Process Of The Law;

Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 35

That Is,  By Indictment Or Presentment Of Good And Lawful Men,

Where Such Deeds Be Done In due Manner,  Or By Writ Original Of The

Common Law.

 

"Without Being brought In to Answer But By Due Process Of The

Common Law."

 

"No Man Be Put To Answer Without Presentment Before Justices,  Or

Thing of Record,  Or By Due Process,  Or By Writ Original,  According to

The Old Law Of The Land."   2 Inst. 50.

 

The Foregoing interpretations Of The Words Nisi Per Legem Terrae

Are Corroborated by The Following statutes,  Enacted in the Next

Century After Magna Carta.

 

"That No Man,  From Henceforth; Shall Be Attached by Any

Accusation,  Nor Forejudged of Life Or Limb,  Nor His Land,  Tenements,

Goods,  Nor Chattels,  Seized into The King'S Hands,  Against The Form

Of The Great Charter,  And The Law Of The Land."   St,  5 Edward Iii.,

Ch. 9. (1331.)

 

"Whereas It Is Contained in the Great Charter Of The Franchises Of

England,  That None Shall Be Imprisoned,  Nor Put Out Of His Freehold,

Nor Of His Franchises,  Nor Free Customs,  Unless It Be By The Law Of

The Land; It Is Accorded,  Assented,  And Established,  That From

Henceforth None Shall Be Taken By Petition,  Or Suggestion Made To

Our Lord The King,  Or To His Council,  Unless It Be By Indictment Or

Presentment Of Good And Lawful People Of The Same Neighborhood

Where Such Deeds Be Done In due Manner,  Or By Process Made By

Writ Original At The Common Law; Nor That None Be Put Out Of His

Franchises,  Nor Of His Freehold,  Unless He Be Duly Brought Into

Answer,  And Forejudged of The Same By The Course Of The Law; And

If Anything be Done Against The Same,  It Shall Be Redressed,  And

Holden For None."   8T. 95 Edward Iii.,  Ch. 4. (1350.)

 

"That No Man,  Of What Estate Or Condition That He Be,  Shall Be Put

Out Of Land Or Tenement,  Nor Taken,  Nor Imprisond,  Nor Disinherited,

Nor Put To Death,  Without Being brought In answer By Due Process

Of Law."   8T. 28 Aboard Iii.,  Ch. 3. (1354.)

 

"That No Man Be Put To Answer Without Presentment Before

Justices,  Or Matter Of Record,  Or By Due Process And Writ Original,

According to The Old Law Of The Land. And If Anything from

Henceforth Be Done To The Contrary,  It Shall Be Void In law,  And

Holden For Error."   8T. 42 Edward Iil,  Ch. 3. (1368.)

 

The Foregoing interpretation Of The Words Nisi Per Legem Terrae 

That Is,  By Due Process Of Law   Including indictment,  &C;.,  Has

Been Adopted. As The True One By Modern Writers And Courts; As,  For

Example,  By Kent,  (2 Comm. 13,) Story,  (3 Comm. 661,) And The

Supreme Court Of New