An Essay On The Trial By Jury - Lysander Spooner (epub e ink reader .TXT) 📗
- Author: Lysander Spooner
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Redemption Was Taken Away, And All Persons Guilty Of Larceny
Above The Value Off Twelve Pence Were Directed To Be Hanged,
Which Law Continues In Force To This Day." 4 Blackstone, 238
I Give This Statement Of Blackstone, Because The Latter Clause May
Seem To Militate With The Idea, Which The Former Clause
Corroborates, Viz., That At The Time Of Magna Carta, Fines Were The
Usual Punishment Of Offenses. But I Think There Is No Probability
That A Law So Unreasonable In Itself, (Unreasonable Even After
Making All Allowance For The Difference In The Value Of Money,)
And So Contrary To Immemorial Custom, Could And Did Obtain Any
General Or Speedy Acquiescence Among A People Who Cared Little
For The Authority Of Kings.
Maddox, Writing Of The Period From William The Conqueror To
John, Says: "The Amercement In Criminal And Common Pleas,
Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 40Which Were Wont To Be Imposed During This First Period And
Afterwards, Were Of So Many Several Sorts, That It Is Not Easy To
Place Them Under Distinct Heads. Let Them, For Methods' Sake, Be
Reduced To The Heads Following: Amercements For Or By Reason Of
Murders And Manslaughters, For Misdemeanors, For Disseisins, For
Recreancy, For Breach Of Assize, For Defaults, For Non-Appearance,
For False Judgment, And For Not Making Suit, Or Hue And Cry. To
Them May Be Added Miscellaneous Amercements, For Trespasses Of
Divers Kinds." 1 Maddox' History Of The Exchequer, 542.
[28] Coke, In His Exposition Of The Words Legem Terrae, Gives Quite
In Detail The Principles Of The Common Law Governing Arrests, And
Takes It For Granted That The Words "Nisi Per Legem Terre" Are
Applicable To Arrests, As Well As To The Indictment, &C. 2 Inst., 51,
52.
[29] I Cite The Above Extract From Mr. Hallam Solely For The Sake Of
His Authority For Rendering The Word Vel By And; And Not By Any
Means For The Purpose Of Indorsing The Opinion He Suggests, That
Legem Terrae Authorized "Judgments By Default Or Demurrer,*'
Without The Intervention Of A Jury. He Seems To Imagine That Lex
Terrae, The Common Law, At The Time Of Magna Carta, Included
Everything, Even To The Practice Of Courts, That Is, At This Day, Called
By The Name Of Common Law; Whereas Much Of What Is Now
Called Common Law Has Grown Up, By Usurpation, Since The Time
Of Magna Carta, In Palpable Violation Of The Authority Of That
Charter. He Says, "Certainly There Are Many Legal Procedures,
Besides Trial By Jury, Through Which A Party's Goods Or Person May
Be Taken." Of Course There Are Now Many Such Ways, In Which A
Party's Goods Or Person Are Taken, Besides By The Judgment Of A
Jury; But The Question Is, Whether Such Takings Are Not In Violation
Of Magna Carta.
He Seems To Think That, In Cases Of "Judgment By Default Or
Demurrer," There Is No Need Of A Jury, And Thence To Infer That
Legem Terrae May Not Have Required A Jury In Those Cases. But This
Opinion Is Founded On The Erroneous Idea That Juries Are Required
Only For Determining Contested Facts, And Not For Judging Of The
Law. In Case Of Default, The Plaintif Must Present A Prima Facie Case
Before He Is Entitled To A Judgment; And Magna Carta, (Supposing It
To Require A Jury Trial In Civil Cases, As Mr. Hallam Assumes That It
Does,) As Much Requires That This Prima Facie Case, Both Law And
Fact, Be Made Out To The Satisfaction Of A Jury, As It Does That A
Contested Case Shall Be.
As For A Demurrer, The Jury Must Try A Demurrer (Having The Advice
And Assistance Of The Court, Of Course) As Much As Any Other Matter
Of Law Arising In A Case.
Mr. Hallam Evidently Thinks There Is No Use For A Jury, Except
Where There Is A "Trial" Meaning Thereby A Contest On Matters Of
Fact. His Language Is, That "There Are Many Legal Procedures,
Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 41Besides Trial By Jury, Through Which A Party's Goods Or Person May
Be Taken." Now Magna Carta Says Nothing Of Trial By Jury; But Only
Of The Judgment, Or Sentence, Of A Jury. It Is Only By Inference That
We Come To The Conclusion That There Must Be A Trial By Jury. Since
The Jury Alone Can Give The Judgment, Or Sentence, We Infer That
They Must Try The Case; Because Otherwise They Would Be
Incompetent, And Would Have No Moral Right, To Give Judgment.
They Must, Therefore, Examine The Grounds, (Both Of Law And Fact,)
Or Rather Try The Grounds, Of Every Action Whatsoever, Whether It Be
Decided On "Default, Demurrer," Or Otherwise, And Render Their
Judgment, Or Sentence, Thereon, Before Any Judgment Can Be A Legal
One, On Which "To Take A Party's Goods Or Person." In Short, The
Principle Of Magna Carta Is, That No Judgment Can Be Valid Against
A Party's Goods Or Person, (Not Even A Judgment For Costs,) Except A
Judgment Rendered By A Jury. Of Course A Jury Must Try Every
Question, Both Of Law And Fact, That Is Involved In The Rendering Of
That Judgment. They Are To Have The Assistance And Advice Of The
Judges, So Far As They Desire Them; But The Judgment Itself Must Be
Theirs, And Not The Judgment Of The Court.
As To "Process Of Attachment For Contempt," It Is Of Course Lawful
For A Judge, In His Character Of A Peace Officer, To Issue A Warrant
For The Arrest Of A Man Guilty Of A Contempt, As He Would For The
Arrest Of Any Other Offender, And Hold Him To Bail, (Or, In Default Of
Bail, Commit Him To Prison,) To Answer For His Offence Before A
Jury. Or He May Order Him Into Custody Without A Warrant When The
Offence Is Committed In The Judge's Presence.
But There Is No Reason Why A Judge Should Have The Power Of
Punishing, For Contempt, Any More Than For Any Other Offence. And
It Is One Of The Most Dangerous Powers A Judge Can Have, Because It
Gives Him Absolute Authority In A Court Of Justice, And Enables Him
To Tyrannize As He Pleases Over Parties, Counsel, Witnesses, And
Jurors. If A Judge Have Power To Punish For Contempt, And To
Determine For Himself What Is A Contempt, The Whole Administration
Of Justice (Or Injustice, If He Choose To Make It So) Is In His Hands.
And All The Rights Of Jurors, Witnesses, Counsel, And Parties, Are
Held Subject To His Pleasure, And Can Be Exercised Only Agreeably
To His Will. He Can Of Course Control The Entire Proceedings In,
And Consequently The Decision Of, Every Cause, By Restraining And
Punishing Every One, Whether Party, Counsel, Witness, Or Juror,
Who Presumes To Offer Anything Contrary To His Pleasure.
This Arbitrary Power, Which Has Been Usurped And Exercised By
Judges To Punish For Contempt, Has Undoubtedly Had Much To Do In
Subduing Counsel Into Those Servile, Obsequious, And Cowardly
Habits, Which So Universally Prevail Among Them, And Which Have
Not Only Cost So Many Clients Their Rights, But Have Also Cost The
People So Many Of Their Liberties.
If Any Summary, Punishment For Contempt Be Ever Necessary, (As It
Probably Is Not,) Beyond Exclusion For The Time Being From The
Court-Room, (Which Should Be Done, Not As A Punishment, But For
Self-Protection, And The Preservation Of Order,) The Judgment For It
Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 42Should Be Given By The Jury, (Where The Trial Is Before A Jury,) And
Not By The Court, For The Jury, And Not The Court, Are Really The
Judges. For The Same Reason, Exclusion From The Court-Room Should
Be Ordered Only By The Jury, In Cases When The Trial Is Before A Jury,
Because They, Being The Real Judges And Triers Of The Cause, Are
Entitled, If Anybody, To The Control Of The Court-Room. In Appeal
Courts, Where No Juries Sit, It May Be Necessary Not As A
Punishment, But For Self-Protection, And The Maintenance Of Order
That The Court Should Exercise The Power Of Excluding A Person, For
The Time Being, From The Court-Room; But There Is No Reason Why
They Should Proceed To Sentence Him As A Criminal, Without His
Being Tried By A Jury.
If The People Wish To Have Their Rights Respected And Protected In
Courts Of Justice, It Is Manifestly Of The Last Importance That They
Jealously Guard The Liberty Of Parties, Counsel, Witnesses, And
Jurors, Against All Arbitrary Power On The Part Of The Court.
Certainly Mr. Hallam May Very Well Say That "One May Doubt
Whether These (The Several Eases He Has Mentioned) Were In
Contemplation Of The Framers Of Magna Carta " That Is, As
Exceptions To The Rule Requiring That All Judgmcnts, That Are To Be
Enforced "Against A Party's Goods Or Person,", Be Rendered By A Jury.
Again, Mr. Hallam Says, If The Word Vel, Be Rendered By And,, "The
Meaning Will Be, That No Person Shall Be Disseized, &C., Except
Upon A Lawful Cause Of Action.", This Is True; But It Does Not Follow
That Any Cause Of Action, Founded On Statute Only,, Is Therefore A
"Lawful, Cause Of Action," Within The Meaning Of Legem Terrae, , Or
The Common Law., Within The Meaning Of The Legem Terrae, Of
Magna Carta, Nothing But A Common Law, Cause Of Action Is A
"Lawful", One.
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Pg 43
If Any Evidence, Extraneous To The History And Language Of Magna
Carta, Were Needed. To Prove That, By That Chapter Which
Guaranties The Trial By
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