An Essay On The Trial By Jury - Lysander Spooner (epub e ink reader .TXT) 📗

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 33

Having Thus Examined The Language Of This Chapter Of Magna Cart,

So Far As It Relates To Criminal Cases,  Its Legal Import May Be Stated

As Follows,  Viz.:

 

No Freeman Shall Be Arrested,  Or Imprisoned,  Or Deprived Of His

Freehold,  Or His Liberties,  Or Free Customs,  Or Be Outlawed,  Or

Exiled,  Or In Any Manner Destroyed,  (Harmed,) Nor Will We (The

King) Proceed. Against Him,  Nor Send Any One Against Him,  By Force

Or Arms,  Unless According To (That Is,  In Execution. Of) The Sentence

Of His Peers,  And (Or Or,  As The Case May Require) The Common Law

Of England,  (As It Was At The Time Of Magna Carta,  In 1215.)

 

[1] Hume,  Appendix 2, 

 

[2] Crabbe's History Of The English Law,  236.

 

[3] Coke Says,  "The King Of England Is Armed With Divers Councils,

One Whereof Is Called Commune Concilium,  (The Common Council,)

And That Is The Court Of Parliament And So It Is Legally Called In

Writs And Judicial Proceedings Comanche Concilium Regni

Anglicae,  (The Common Council Of The Kingdom Of England.) And

Another Is Called Magnum Concilium,  (Great Council;) This Is

Sometimes Applied To The Upper House Of Parliament,  And

Sometimes,  Out Of Parliament Time,  To The Peers Of The Realm,  Lords

Of Parliament,  Who Are Called Magnum Concilium Regis,  (The Great

Council Of The King;) [4] Thirdly,  (As Every Man Knoweth,) The King

Hath A Privy Council For Matters Of State. * * The Fourth Council Of

The King Are His Judges For Law Matters." 1 Coke's Institutes,  110 A.

 

[4] The Great Charter Of Henry Iii.,  (1216 And 1225,) Confirmed By

Edward I.,  (1297,) Makes No Provision Whatever For,  Or Mention

Of,  A Parliament,  Unless The Provision,  (Ch. 37,) That "Escuage,  (A

Military Contribution,) From Henceforth Shall Be Taken Like As It Was

Wont To Be In The Time Of King Henry Our Grandfather," Mean That A

Parliament Shall Be Summoned For That Purpose.

 

[5]The Magna Carta Of John,  (Ch. 17 And 18,) Defines Those Who

Were Entitled To Be Summoned To Parliament,  To Wit,  "The

Archbishops,  Bishops,  Abbots,  Earls,  And Great Barons Of The

Realm,  * * And All Others Who Hold Of Us In Chief." Those Who Held

Land Of The King In Chief Included None Below The Rank Of Knights.

 

[6] The Parliaments Of That Time Were,  Doubtless,  Such As Carlyle

Describes Them,  When He Says,  "The Parliament Was At First A Most

Simple Assemblage,  Quite Cognate To The Situation; That Red

William,  Or Whoever Had Taken On Him The Terrible Task Of Being

King Of England,  Was Wont To Invite,  Oftenest About Christmas

Time,  His Subordinate Kinglets,  Barons As He Called Them,  To Give

Him The Pleasure Of Their Company For A Week Or Two; There,  In

Earnest Conference All Morning,  In Freer Talk Over Christmas Cheer

All Evening,  In Some Big Royal Hall Of Westminster,  Winchester,  Or

Wherever It Might Be,  With Log Fires,  Huge Rounds Of Roast And

Boiled,  Not Lacking Malmsey And Other Generous Liquor,  They Took

Counsel Concerning The Arduous Matters Of The Kingdom." 

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 34

 

[7] Hume,  Appendix 2.

 

[8] This Point Will Be More Fully Established Hereafter.

 

[9] It Is Plain That The King And All His Partisans Looked Upon The

Charter As Utterly Prostrating The King's Legislative Supremacy

Before The Discretion Of Juries. When The Schedule Of Liberties

Demanded By The Barons Was Shown To Him,  (Of Which The Trial By

Jury Was The Most Important,  Because It Was The Only One That

Protected All The Rest,) "The King,  Falling Into A Violent Passion,

Asked,  Why The Barons Did Not With These Exactions Demand His

Kingdom? * * And With A Solemn Oath Protested,  That He Would

Never Grant Such Liberties As Would Make Himself A Slave." * * But

Afterwards,  "Seeing Himself Deserted,  And Fearing They Would Seize

His Castles,  He Sent The Earl Of Pembroke And Other Faithful

Messengers To Them,  To Let Them Know He Would Grant Them The

Laws And Liberties They Desired." * * But After The Charter Had Been

Granted,  "The King's Mercenary Soldiers,  Desiring War More Than

Peace,  Were By Their Leaders Continually Whispering In His Ears,  That

He Was Now No Longer King,  But The Scorn Of Other Princes; And That

It Was More Eligible To Be No King,  Than Such A One As He." * * He

Applied To The Pope,  That He Might By His Apostolic Authority Make

Void What The Barons Had Done.* * At Rome He Met With What

Success He Could Desire,  Where All The Transactions With The Barons

Were Fully Represented To The Pope,  And The Charter Of Liberties

Shown To Him,  In Writing; Which,  When He Had Carefully Perused,

He,  With A Furious Look,  Cried Out,  What! Do The Barons Of England

Endeavor To Dethrone A King,  Who Has Taken Upon Him The Holy

Cross,  And Is Under The Protection Of The Apostolic See,  And Would

They Force Him To Transfer The Dominions Of The Roman Church To

Others? By St. Peter,  This Injury Must Not Pass Unpunished. Then

Debating The Matter With The Cardinals,  He,  By A Definitive Sentence,

Damned And Cassated Forever The Charter Of Liberties,  And Sent The

King A Bull Containing That Sentence At Large."   Echard's History Of

England,  P. 106-7

 

These Things Show That The Nature And Effect Of The Charter Were

Well Understood By The King And His Friends; That They All Agreed

That He Was Effectually Stripped Of Power. Yet The Legislative Power

Had Not Been Taken From Him; But Only The Power To Enforce His

Laws,  Unless Juries Should Freely Consent To Their Enforcement.

 

[10] The Laws Were,  At That Time,  All Written In Latin.

 

[11]"No Man Shall Be Condemned At The King"S Suit,  Either Before

The King In His Bench,  Where Pleas Are Coram Rege,  (Before The

King,) (And So Are The Words Nec Super Eum Ibimus,  To Be

Understood,) Nor Before Any Other Commissioner Or Judge

Whatsoever,  And So Are The Words Nec Super Eum Mittemus,  To Be

Understood,  But By The Judgment Of His Peers,  That Is,  Equals,  Or

According To The Law Of The Land."   2 Coke's Inst.,  46.

 

[12] Perhaps The Assertion In The Text Should Be Made With This

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 35

Qualification   That The Words "Per Legem Terrae," (According To The

Law Of The Land,) And The Words "Per Legale Judiciun Parium

Suorum," (According To The Legal Judgment Of His Peers,) Imply That

The King,  Before Proceeding To Any Executive Action,  Will Take

Notice Of "The Law Of The Land," And Of The Legality Of The Judgment

Of The Peers,  And Will Execute Upon The Prisoner Nothing Except

What The Law Of The Land Authorizes,  And No Judgments Of The Peers,

Except Legal Ones. With This Qualification,  The Assertion In The Text

Is Strictly Correct   That There Is Nothing In The Whole Chapter That

Grants To The King,  Or His Judges,  Any Judicial Power At All. The

Chapter Only Describes And Limits His Executive Power.

 

[13] See Blackstone'a Law Tracts,  Page 294,  Oxford Edition

 

[14] These Articles Of The Charter Are Given In Blackstone's

Collection Of Charters,  And Are Also Printed With The Statutes Of The

Realm. Also In Wilkins' Laws Of The Anglo- Saxons,  P. 350.

 

[15] Lingard Says,  " The Words,  ' We Will Not Destroy Him Nor Will

We Go Upon Him,  Nor Will We Send Upon Him,' Have Been Very

Differently Expounded By Different Legal Authorities. Their Real

Meaning May Be Learned From John Himself,  Who The Next Year

Promised By His Letters Patent,... Nec Super Eos Per Vim Vel Per

Arma Ibimus,  Nisi Per Legem Regni Nostri,  Vel Per Judicium Parium

Suorum In Curia Nostra,  (Nor Will We Go Upon Them By Force Or By

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

Peers In Our Court.) Pat. 16 Johan,  Apud Drad. 11,  App. No. 124.

 

He Had Hitherto Been In The Habit Of Going With An Armed Force,  Or

Sending An Armed Force On The Lands,  And Against The Castles,  Of All

Whom He Knew Or Suspected To Be His Secret Enemies,  Without

Observing Any Form Of Law."   3 Lingard,  47 Note.

 

[16] "Judgment,  Judicium. * * The Sentence Of The Law,

Pronounced By The Court,  Upon The Matter Contained In The Record."

  8 Blackstone,  895. Jacob's Law Dictionary. . Tomlin's Do.

 

"Judgment Is The Decision Or Sentence Of The Law,  Given By A Court

Of Justice Or Other Competent Tribunal,  As The Result Of The

Proceedings Instituted Therein,  For The Redress Of An Injury." 

Bouvier's Law Dict.

 

"Judgment,  Judicium. * * Sentence Of A Judge Against A Criminal. *

* Determination,  Decision In General."   Bailey's Dict.

 

"Judgment. * * In A Legal Sense,  A Sentence Or Decision Pronounced

By Authority Of A King,  Or Other Power,  Either By Their Own Mouth,

Or By That Of Their Judges Andofficers,  Whom They Appoint,  To

Administer Justice In Their Stead."   Chambers' Dict.

 

"Judgment. * * In Law,  The Sentence Or Doom Pronounced In Any

Case,  Civil Orcriminal,  By The Judge Or Court By Which It Is Tried." 

Webster's Dict.

 

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 36

Sometimes The Punishment Itself Is Called Judicium,  Judgment; Or,

Rather,  It Was At The Time Of Magna Carta. For Example,  In A Statute

Passed Fifty-One Years After Magna Carta,  It Was Said That A Baker,

For Default In The Weight Of His Bread,  " Debeat Amerciari Vel Subire

Judicium Pillorie;" That Is,  Ought To Be Amerced,  Or Suffer The

Punishment,  Or Judgment,  Of The Pillory. Also That A Brewer,  For

"Selling Ale Contrary To