An Essay On The Trial By Jury - Lysander Spooner (little red riding hood read aloud .TXT) 📗
- Author: Lysander Spooner
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In Civil Society; And That There Is No Necessity Or Excuse For That
Deluge Of Arbitrary Legislation, With Which The Present Age Is
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 73Overwhelmed, Under The Pretext That Unless Laws Be Made, The
Law Will Not Be Known; A Pretext, By The Way, Almost Universally
Used for Overturning, Instead Of Establishing, The Principles Of
Justice.
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 3 (The Oaths Of Jurors) Pg 74
The Oaths That Have Been Administered to Jurors, In england, And
Which Are Their Legal Guide To Their Duty, All (So Far As I Have
Ascertained them) Corroborate The Idea That The Jurors Are To Try
All Cases On Their Intrinsic Merits, Independently Of Any Laws
That They Deem Unjust Or Oppressive. It Is Probable That An Oath
Was Never Administered to A Jury In england, Either In a Civil Or
Criminal Case, To Try It According to Law.
The Earliest Oath That I Have Found Prescribed by Law To Be
Administered to Jurors Is In the Laws Of Ethelred, (About The
Year 1015,) Which Require That The Jurors "Shall Swear, With Their
Hands Upon A Holy Thing, That They Will Condemn No Man That Is
Innocent, Nor Acquit Any That Is Guilty." 4 Blackstone, 302.
2 Turner'S History Of The Anglo-Saxons, 155 Wilkins' Laws Of The
Anglo-Saxons, 117. Spelman'S Glossary, Word Jurata.
Blackstone Assumes That This Was The Oath Of The Grand Jury
4 Blackstone, 302); But There Was But One Jury At The Time This
Oath Was Ordained. The Institution Of Two Juries, Grand And Petit,
Took Place After The Norman Conquest.
Hume, Speaking of The Administration Of Justice In the Time Of
Alfred, Says That, In every Hundred,
"Twelve Freeholders Were Chosen, Who, Having sworn,
Together With The Hundreder, Or Presiding magistrate Of That
Division, To Administer Impartial Justice, Proceeded to
The Examination Of That Cause Which Was Submitted to Their
Jurisdiction." Hume, Ch. 2.
By A Law Of Henry Ii., In 1164, It Was Directed that The Sheriff
"Faciet Jurare Duodecim Legales Homines De Vicineto Seu De
Villa, Quod Inde Veritatem Secundum Conscientiam Suam
Manifestabunt," (Shall Make Twelve, Legal Men From The
Neighborhood To Swear That They Will Make Known The Truth
According to Their Conscience.) Crabbe'S History Of The
English Law, 119. 1 Reeves, 87. Wilkins, 321 323.
Glanville, Who Wrote Within The Half Century Previous To
Magna Carta, Says;
"Each Of The Knights Summoned far This Purpose (As Jurors)
Ought To Swear That He Will Neither Utter That Which Is False, Nor
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 3 (The Oaths Of Jurors) Pg 75Knowingly Conceal The Truth." Beames' Glanville, 65.
Reeve Calls The Trial By Jury "The Trial By Twelve Men Sworn
To Speak The Truth." 1 Reeve'S History Of The English Law, 87.
Henry Says That The Jurors "Took A Solemn Oath, That They
Would Faithfully Discharge The Duties Of Their Office, And Not
Suffer An Innocent Man To Be Condemned, Nor Any Guilty Person
To Be Acquitted." 3 Henry'S Hist. Of Great Britain, 346.
The Mirror Of Justices, (Written Within A Century After
Magna Carta,) In the Chapter On The Abuses Of The Common
Law, Says:"It Is Abuse To Use The Words, To Their Knowledge,
In Their Oaths, To Make The Jurors Speak Upon Thoughts, Since
The Chief Words Of Their Oaths Be That They Speak The Truth." P.
249.
Smith, Writing in the Time Of Elizabeth, Says That, In civil Suits,
The Jury "Be Sworn To Declare The Truth Of That Issue According to
The Evidence, And Their Conscience." Smith'S Commonwealth
Of England. Edition Of 1621, P. 73.
In Criminal Trials, He Says:
"The Clerk Giveth The Juror An Oath To Go Uprightly Betwixt The
Prince And The Prisoner." Ditto, P. 90. [24]
Hale Says:
"Then Twelve, And No Less, Of Such As Are Indifferent And Are
Returned upon The Principal Panel, Or The Tales, Are Sworn To Try
The Same According to The Evidence." 2 Hale'S History Of The
Common Law, 141.
It Appears From Blackstone That, Even At This Day, Neither In
Civil Nor Criminal Cases, Are Jurors In england Sworn To Try Causes
According to Law. He Says Tht In civil Suits The Jury Are "Sworn Well
And Truly To Try The Issue Between The Parties; And A True Verdict To
Give According to The Evidence." 3 Blackstone, 365.
"The Issue" To Be Tried is Whether A Owes B Anything And If So,
How Much? Or Whether A Has In his Possession Anything that
Belongs To B; Or Whether A Has Wronged b, And Ought To Make
Compensation; And If So, How Much?
No Statute Passed by A Legislature, Simply As A Legislature, Can Alter
Either Of These "Issues" In hardly Any Conceivable Case, Perhaps In
None. No Unjust Law Could Ever Alter Them In any. They Are All
Mere Questions Of Natural Justice, Which Legislatures Have No Power To
Alter, And With Which They Have No Right To Interfere, Further Than To
Provide For Having them Settled by The Most Competent And Impartial
Tribunal That It Is Practicable To Have, And Then For Having all Just Decisions
Enforced. And Any Tribunal, Whether Judge Or Jury, That Attempts To
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 3 (The Oaths Of Jurors) Pg 76Try These Issues, Has No More Moral Right To Be Swerved from The
Line Of Justice, By The Will Of A Legislature, Than By The Will Of Any Other
Body Of Men Whatever. And This Oath Does Not Require Or Permit A Jury To
Be So Swerved.
In Criminal Cases, Blackstone Says The Oath Of The Jury In england
Is:
"Well And Truly To Try, And True Deliverance Make, Between Our
Sovereign Lord, The King, And The Prisoner Whom They Have In
Charge, And A True Verdict To Give According to The Evidence." 4
Blackstone, 355.
"The Issue" To Be Tried, In a Criminal Case, Is "Guilty," Or "Not
Guilty." The Laws Passed by A Legislature Can Rarely, If Ever, Have Anything
To Do With This Issue. "Guilt" Is An Intrinsic Quality Of Actions, And Can
Neither Be Created, Destroyed, Nor Changed by Legislation. And No Tribunal
That Attempts To Try This Issue Can Have Any Moral Right To Declare A Man
Guilty, For An Act That Is Intrinsically Innocent, At The Bidding of A
Legislature, Any More Than At The Bidding of Anybody Else. And This
Oath Does Not Require Or Permit A Jury To Do So.
The Words, "According to The Evidence," Have Doubtless Been
Introduced into The Above Oaths In modern Times. They Are Unquestionably In
Violation Of The Common Law, And Of Magna Carta, If By Them Be
Meant Such Evidence Only As The Government Sees Fit Ft Allow To Go To The
Jury. If The Government Can Dictate The Evidence, And Require The Jury To
Decide According to That Evidence, It Necessarily Dictates The Conclusion To
Which They Must Arrive. In that Case The Trial Is Really A Trial By The
Government, And Not By The Jury. The Jury Cannot Try An Issue, Unless They
Determine What Evidence Shall Be Admitted. The Ancient Oaths, It Will Be
Observed, Say Nothing about "According to The Evidence." They Obviously
Take It For Granted that The Jury Try The Whole Case; And Of Course That They
Decide What Evidence Shall Be Admitted. It Would Be Intrinsically An
Immoral And Criminal Act For A Jury To Declare A Man Guilty, Or To Declare
That One Man Owed. Money To Another, Unless All The Evidence Were
Admitted, Which They Thought Ought To Be Admitted, For Ascertaining the Truth.
[25]
Grand Jury. If Jurors Are Bound To Enforce All Laws Passed by The
Legislature, It Is A Very Remarkable Fact Than The Oath Of Grand Juries Does Not
Require Them To Be Governed by The Laws In finding indictments. There
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 3 (The Oaths Of Jurors) Pg 77Have Been Various Forms Of Oath Administered to Grand Jurors; But By None Of
Them That I Recollect Ever To Have Seen, Except Those Of The States Of
Connecticut And Vermont, Are They Sworn To Present Men According to Law.
The English Form, As Given In the Essay On Grand Juries, Written
Near Two Hundred years Ago, And Supposed to Have Been Written By Lord
Somers, Is As Follows:
"You Shall Diligently Inquire, And True Presentment Make, Of All
Such Articles, Matters, And Things, As Shall Be Given You In charge,
And Of All Other Matters And Things As Shall Come To Your Knowledge
Touching this Present Service. The King'S Council, Your Fellows, And Your Own,
You Shall Keep Secret. You Shall Present No Person For Hatred or Malice;
Neither Shall You Leave
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