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

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

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 30

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;

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

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 31

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 York,  (19 Wendell,  6t6; 4 Hill,  146.)

The Fifth Amendment To The Constitution Of The United States Seems

To Have Been Framed On The Same Idea,  Inasmuch As It Provides That

"No Person Shall Be Deprived Of Life,  Liberty,  Or Property,  Without

Due Process Of Law." [28]

 

Whether The Word Vel Should Be Rendered By Or,  Or By And.

 

Having Thus Given The Meanings,  Or Rather The Applications,  Which

The Words Vel Per Legem Terrae Will Reasonably,  And Perhaps Must

Necessarily,  Bear,  It Is Proper To Suggest,  That It Has Been Supposed

By Some That The Word Vel,  Instead Of Being Rendered By Or,  As It

Usually Is,  Ought To Be Rendered By And,  Inasmuch As The Word Vel

Is Often Used For Et,  And The Whole Phrase Nisi Per Judicium Parian

Suorun,  Vel Per Legem Terrae,  (Which Would Then Read,  Unless By The

Sentence Of His Peers,  And The Law Of The Land,) Would Convey A

More Intelligible And Harmonious Meaning Than It Otherwise Does.

 

Blackstone Suggests That This May Be The True Reading. (Charters,  P.

41.) Also Mr. Hallam,  Who Says:"Nisi Per Legale Judicium Parium

Suorum,  Vel Per Legem Terra;. Several Explanations Have Been

Offered Of The Alternative Clause; Which Some Have Referred To

Judgment By Default,  Or Demurrer; Others To The Process Of

Attachment For Contempt. Certainly There Are Many Legal

Procedures Besides Trial By Jury,  Through Which A Party's Goods Or

Person May Be Taken. But One May Doubt Whether These Were In

Contemplation Of The Framers Of Magna Carta. In An Entry Of The

Charter Of 1217 By A Contemporary Hand,  Preserved In The

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 32

Town-Clerk's Office In London,  Called Liber Custumarum Et

Regum Antiquarum,  A Various Reading,  Et Per Legem Terrae,  Occurs.

Blackstone's Charters,  P. 42 (41.) And The Word Vel Is So Frequently

Used For Et,  That I Amnot Wholly Free From A Suspicion That It  Was

So Intended In This Place. The Meaning Will Be,  That No Person Shall

Be Disseized,  &C;.,  Except Upon A Lawful Cause Of Action,  Found By

The Verdict Of A Jury. This Really Seems As Good As Any Of The

Disjunctive Interpretatios; But I Do Not  Offer It With Much

Confidence."   2 Hallam's Middle Ages,    Ch. 8,  Part 2,  P. 449,

Note."  [29]

 

The Idea That The Word Vel,   Should Be Rendered By And,  Is

Corroborated,  If Not Absolutely Confirmed,  By The Following Passage

In Blackstone,  Which Has Before Been Cited. Speaking Of The Trial

By Jury,  As Established By Magna Carta,  He Calls It,  "A Privilege

Which Is Couched In Almost The Same Words With That Of The

Emperor Conrad Two Hundred Years Before: 'Nemo Beneficium

Suum Perdat,  Nisi Secundum Consuetudinem Antecessorum

Nostrorum,  Et,   Judicium Parium Suorum. ' (No One Shall Lose His

Estate Unless According To The Custom Of Our Ancestors,  And,   The

Judgment Of His Peers.)   3 Blackstone,  350., 

 

If The Word Vel,   Be Rendered By And,,   (As I Think It Must Be,  At Least

In Some Cases,) This Chapter Of Magna Carta Will Then Read That No

Freeman Shall Be Arrested Or Punished,  "Unless According To The

Sentence Of His Peers,  And,   The Law Of The Land."

 

The Difference Between This Reading And The Other Is Important. In

The One Case,  There Would Be,  At First View,  Some Color Of Ground

For Saying That A Man Might Be Punished In Either Of Two Ways,  Viz.,

According To The Sentence Of His Peers,  Or According To The Law Of

The Land. In The Other Case,  It Requires Both The Sentence Of His Peers

And,   The Law Of The Laud (Common Law) To Authorize His

Punishment.

 

If This Latter Reading Be Adopted,  The Provision Would Seem To

Exclude All Trials Except Trial By Jury,  And All Causes Of Action

Except Those Of The Common Law., 

 

But I Apprehend The Word Vel,   Must Be Rendered Both By And,,   And

By Or;,   That In Cases Of A Judgment,,   It Should Be Rendered By And,, 

So As To Require The Concurrence Both Of "The Judgment Of The Peers

And,   The Law Of The Land," To Authorize The King To Make Execution

Upon A Party's Goods Or Person; But That In Cases Of Arrest And

Imprisonment,  Simply For The Purpose Of Bringing A Man To Trial,

Vel,   Should Be Rendered By Or,  ,  Because There Can Have Been No

Judgment Of A Jury In Such A Case,  And "The Law Of The Land" Must

Therefore Necessarily Be The Only Guide To,  And Restraint Upn,  The

King. If This Guide And Restraint Were Taken Away,  The King Would

Be Invested With An Arbitrary And Most Dangerous Power In.

Making Arrests,  And Confining In Prison,  Under Pretence Of An

Intention To Bring To Trial.