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

In Parliament Assembled,  And Of All The Commons

Of Great Britain,  Demand Judgment (Sentence) Of Your

Lordships Against Thomas,  Earl Of Macclesfield,  For The

Said High Crimes And Misdemeanors.'

 

"Then The Lord Chief Justice King,  Speaker Of The House

Of Lords,  Said: 'Mr. Speaker,  The Lords Are Now Ready

To Proceed To Judgment In The Case By You Mentioned.'

 

"Thomas,  Earl Of Macclesfielg,  The Lords Have

Unanimously Found You Guilty Of High Crimes And

Misdemeanors,  Charged On You By The Impeachment Of

The House Of Commons,  And Do Now,  According To Law, 

Proceed To Judgment Against You,  Which I Am Ordered

To Pronounce. Their Lordships' Judgment Is,  And This High

Court Doth Adjudge,  That You,  Thomas,  Earl Of

Macclesfield,  Be Fined In The Sum Of Thirty Thousand

Pounds Unto Our Sovereign Lord The King; And That You

Shall Be Imprisoned In The Tower Of London,  And There

Kept In Safe Custody,  Until Yon Shall Pay The Said Fine.'"

6 Hargrave's State Trials,  762   3   4.

 

This Case Shows That The Principle Of Magna Carta,  That

A Man Should Be Sentenced Only By His Peers,  Was In Force, 

And Acted Upon As Law,  In England,  So Lately As 1725,  (Five

Hundred Years After Magna Carta,) So Far As It Applied To A

Peer Of The Realm,  A Severe Punishment," Ect.,  Ect.

 

But The Same Principle,  On This Point,  That Applies To A Peer

Of The Realm,  Applies To Every Freeman. The Only

Difference Between The Two Is,  That The Peers Of The Realm

Have Had Influence Enough To Preserve Their Constitutional

Rights; While The Constitutional Rights Of The People Have Been

Trampled Upon And Rendered Obsolete By The Usurpation And

Corruption Of The Government And The Courts.

 

Section V. The Oaths Of Judges

 

As Further Proof That The Legislation Of The King,  Whether

Enacted With Or Without The Assent And Advice Of His Parliaments,

Was Of No Authority Unless It Were Consistent With The Common

Law,  And Unless Juries And Judges Saw Fit To Enforce It,  It May Be

Mentioned That It Is Probable That No Judge In England Was Ever

Sworn To Observe The Laws Enacted Either By The King Alone, 

Or By The King With The Advice And Assent Of Parliament.

 

The Judges Were Sworn To "Do Equal Law,  And Execution Of Right,  

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 4 Pg 78

To All The King's Subjects,  Rich And Poor,  Without Having

Regard To Any Person;" And That They Will "Deny No Man

Common Right;" [28] But They Were Not Sworn To Obey Or

Execute Any Statutes Of The King,  Or Of The King And Parliament.

Indeed,  They Are Virtually Sworn Not To Obey Any Statutes That

Are Against "Common Right," Or Contrary To "The Common Law,"

Or "Law Of The Land;" But To "Certify The King Thereof"  That Is, 

Notify Him That His Statutes Are Against The Common Law; 

And Then Proceed To Execute The Common Law,  Notwithstanding

Such Legislation To The Contrary. The Words Of The Oath On This Point

Are These:

 

"That Ye Deny No Man Common Right By (Virtue Of) The King's

Letters,  Nor None Other Man's,  Nor For None Other Cause; And In

Case Any Letters Come To You Contrary To The Law,  (That Is,  The

Common Law,  As Will Be Seen On Reference To The Entire Oath Given

In The Note,) That Ye Do Nothing By Such Letters,  But Certify The

King Thereof,  And Proceed To Execute The Law,  (That Is,  The

Common Law,) Notwithstanding The Same Letters."

 

Where It Is Considered That The King Was The Sole Legislative

Power,  And That He Exercised This Power,  To A Great Extent,  By

Orders In Council,  And By Writs And "Letters" Addressed

Oftentimes To Some Sheriff,  Or Other Person,  And That His

Commands,  When Communicated To His Justices,  Or Any

Other Person,  "By Letters," Or Writs,  Under Seal,  Had As Much

Legal Authority As Laws Promulgated In Any Other Form

Whatever,  It Will Be Seen That This Oath Of The Justices

Absolutely Required That They Disregard Any Legislation That

Was Contrary To "Common Right," Or "The Common Law,"

And Notify The King That It Was Contrary To Common Right, 

Or The Common Law,  And Then Proceed To Execute The

Common Law,  Notwithstanding Such Legislation. [29]

 

If There Could Be Any Doubt That Such Was The Meaning

Of This Oath,  That Doubt Would Be Removed By A Statute

Passed By The King Two Years Afterwards,  Which Fully

Explains This Oath,  As Follows:

 

"Edward,  By The Grace Of God,  Ect.,  To The Sheriff Of

Stafford,  Greeting: Because That By Divers Complaints

Made To Us,  We Have Perceived That The Law Of The Land, 

Which We By Our Oath Are Bound To Maintain,  Is The Less

Well Kept,  And The Execution Of The Same Disturbed Many

Times By Maintenance And Procurement,  As Well In The

Court As In The Country; We Greatly Moved Of Conscience

In This Matter,  And For This Cause Desiring As Much For

The  Pleasure Of God,  And Ease And Quietness Of Our

Subjects,   As To Save Our Conscience,  And For To Save

And Keep Our Said Oath,  By The Assent Of The Great Men

And Other Wise Men Of Our Council,  We Have Ordained

These Things Following:

 

"First,  We Have Commanded All Our Justices,  That They 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 4 Pg 79

Shall From Henceforth Do Equal Law And Execution Of

Right To All Our Subjects,  Rich And Poor,  Without Having

Regard To Any Person,  And Without Omitting To Do Right

For Any Letters Or Commandment Which May Come To

Them From Us,  Or From Any Other,  Or By Any Other Cause.

And If That Any Letters,  Writs,  Or Commandments Come

To The Justices,  Or To Other Deputed To Do Law And Right

According To The Usage Of The Realm,  In Disturbance Of

The Law,  Or Of The Execution Of The Same,  Or Of Right To

The Parties,  The Justices And Other Aforesaid Shall

Proceed And Hold Their Courts And Processes, 

Where The Pleas And Matters Be Depending Before

Them,  As If No Such Letters,  Writs,  Or Commandments

Were Come To Them; And They Shall Certify Us And

Our Council Of Such Commandments Which Be

Contrary To The Law,  (That Is,  "The Law Of The Land,"

Or Common Law,) As Afore Is Said." [30] And To The

Intent That Our Justices,  Shall Do Even Right To All

People In The Manner Aforesaid,  Without More

Favor Showing To One Than To Another,  We Have

Ordained And Caused Our Said Justices To Be Sworn, 

That They Shall Not From Henceforth,  As Long As

They Shall Be In The Office Of Justice,  Take Fee Nor

Robe Of Any Man,  But Of Ourself,  And That They Shall

Take No Gift Nor Reward By Themselves,  Nor By Other, 

Privily Nor Apertly,  Of Any Man That Hath To Do Before

Them By Any Way,  Except Meat And Drink,  And That

Of Small Value: And That They Shall Give No Counsel

To Great Men Or Small,  In Case Where We Be Party, 

Or Which Do Or May Touch Us In Any Point,  Upon

Pain To Be At Our Will,  Body,  Lands,  And Goods,  To

Do Thereof As Shall Please Us,  In Case They Do Contrary.

And For This Cause We Have Increased The Fees Of

The Same,  Our Justices,  In Such Manner As It Ought

Reasonably To Suffice Them."   20 Edward Iii., 

Ch. L. (1346.)

 

Other Statutes Of Similar Tenor Have Been Enacted

As Follows:

 

"It Is Accorded And Established,  That It Shall Not

Be Commanded By The Great Seal,  Nor The Little Seal,

To Disturb Or Delay Common Right; And Though Such

Commandments Do Come,  The Justices Shall Not

Therefore Leave (Omit) To Do Right In Any Point."  

St. 2 Edward Iii.,  Ch. 8. (1328.)

 

"That By Commandment Of The Great Seal,  Or Privy

Seal,  No Point Of This Statute Shall Be Put In Delay;

Nor That The Justices Of Whatsoever Place It Be Shall

Let (Omit) To Do The Common Law,  By Commandment, 

Which Shall Come To Them Under The Great Seal,  Or The

Privy Seal."   14 Edward Iii,  St. 1,  Ch. 14. (1340.)

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 4 Pg 80

"It Is Ordained And Established,  That Neither Letters

Of The Signet,  Nor Of The King's Privy Seal,  Shall Be

From Henceforth Sent In Damage Or Prejudice Of The

Realm,  Nor In Disturbance Of The Law" (The Common Law). 

11 Richard Ii.,  Ch. 10. (1387.)

 

It Is Perfectly Apparent From These Statutes,  And From

The Oath Administered To The Justices,  That It Was A

Matter Freely Confessed By The King Himself,  That His

Statutes Were Of No Validity,  If Contrary To The Common

Law,  Or "Common Right."

 

The Oath Of The Justices,  Before Given,  Is,  I Presume, 

The Same That Has Been Administered To Judges In

England From The Day When It Was First Prescribed To

Them,  (1344,) Until Now. I Do Not Find From The English

Statutes That The Oath Has Ever Been Changed. The Essay

On Grand Juries,  Before Referred To,  And Supposed To Have

Been Written By Lord Somers,  Mentions This Oath

(Page 73) As Being Still Administered To Judges,  That Is, 

In The Time Of Charles Ii.,  More Than Three Hundred Years

After The Oath Was First Ordained.

 

If The Oath Has Never Been Changed,  It Follows That

Judges Have Not Only Never Been Sworn To Support Any

Statutes Whatever Of The King,  Or Of Parliament,  But That, 

For Five Hundred Years Past,  They Actually Have Been

Sworn To Treat As Invalid All Statutes That Were Contrary

To The Common Law.

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 81

That The Legislation Of The King Was Of No Authority Over

A Jury,  Is Further Proved By The Oath Taken By The Kings

At Their Coronation. This Oath Seems To Have Been

Substantially The