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

The Neighboring Earls Held Not Their Courts On The Same Day; And,

What Seems Very Singular,  No Judge Was Allowed,  After Meals,  To

Exercise His Office.

 

"The Druids Also,  Or Priests,  In Germany,  As We Had Formerly

Occasion To Remark,  And The Clergy In England,  Exercised A

Jurisdiction In The Hundred And County Courts. They Instructed

The People In Religious Duties,  And In Matters Regarding The

Priesthood; And The Princes,  Earls,  Or Eorldormen,  Related To

Them The Laws And Customs Of The Community. These Judges Were

Mutually A Check To Each Other; But It Was Expected That They

Should Agree In Their Judgments,  And Should Willingly Unite Their

Efforts For The Public Interest. [22]

 

"The Meeting (The County Court) Was Opened With A Discourse By

The Bishop,  Explaining,  Out Of The Scriptures And Ecclesiastical

Canons,  Their Several Duties As Good Christians And Members Of

The Church. After This,  The Alderman,  Or One Of His Assessors,

Made A Discourse On The Laws Of The Land,  And The Duties Of Good

Subjects And Good Citizens. When These Preliminaries Were Over,

They Proceede To Try And Determine,  First The Causes Of The

Church,  Next The Pleas Of The Crown,  And Last Of All The

Controversies Of Private Parties."   8 Henry's History Of Great

Britain,  348.

 

This View Is Corroborated By Tyrrell's Introduction To The

History Of England; P. 83-84,  And By Spence's Origin Of The Laws

And Political Institutions Of Modern Europe,  P. 447,  And The Note

On The Same Page. Also By A Law Of Canute To This Effect,  In

Every County Let There Be Twice A Year An Assembly,  Whereat The

Bishop And The Earl Shall Be Present,  The One To Instruct The

People In Divine,  The Other In Human,  Laws.   Wilkins,  P. 136.

 

"But The Prince Or Earl Performed Not,  At All Times,  In Person,

The Obligations Of His Office. The Enjoyment Of Ease And Of

Pleasure,  To Which In Germany He Had Delivered Himself Over,

When Disengaged From War,  And The Mean Idea He Conceived

Of The Drudgery Of Civil Affairs,  Made Him Often Delegate To An

Inferior Person The Distribution Of Justice In His District. The

Same Sentiments Were Experienced By The Saxon Nobility;

And The Service Which They Owed By Their Tenures,  And The High

Employments They Sustained,  Called Them Often From The

Management Of Their Counties. The Progress,  Too,  Of Commerce, 

Giving An Intricacy To Cases,  And Swelling The Civil Code,  Added

To The Difficulty Of Their Office,  And Made Them Averse To Its Duties.

Sheriffs,  Therefore,  Or Deputies,  Were Frequently Appointed To

Transact Their Business; And Though These Were At First Under

Some Subordination To The Earls,  They Grew At Length To Be

Entirely Independent Of Them. The Connection Of Jurisdiction And

Territory Ceasing To Prevail,  And The Civil Being Separated From

The Ecclesiastical Power,  They Became The Sole And Proper

Officers For The Direction Of Justice In The Counties.

 

"The Hundred,  However,  And County Courts Were Not Equal Of

Themselves For The Purposes Of Jurisdiction And Order. It Was

Necessary That A Court Should Be Erected,  Of Supreme Authority,

Where The Disputes Of The Great Should Be Decided,  Where The

Disagreeing Sentiments Of Judges Should Be Reconciled,  And Where

Protection Should Be Given To The People Against Their Fraud And

Injustice.

 

"The Princes Accordingly,  Or Chief Nobility,  In The German

Communities,  Assembled Together To Judge Of Such Matters. The

Saxon Nobles Continued This Prerogative; And The King,  Or,  In His

Absence,  The Chief Justiciary,  Watched Over Their Deliberations.

But It Was Not On Every Trivial Occasion That This Court

Interested Itself. In Smaller Concerns,  Justice Was Refused

During Three Sessions Of The Hundred,  And Claimed Without Effect,

At Four Courts Of The County,  Before There Could Lie An Appeal To

It.

 

"So Gradually Were These Arrangements Established,  And So

Naturally Did The Varying Circumstances In The Situation Of The

Germans And Anglo-Saxons Direct Those Successive Improvements

Which The Preservation Of Order,  And The Advantage Of Society,

Called Them To Adopt. The Admission Of The People Into The Courts

Of Justice Preserved,  Among The Former,  That Equality Of Ranks

For Which They Were Remarkable; And It Helped To Overturn,  Among

The Latter,  Those Envious Distinctions Which The Feudal System

Tended To Introduce,  And Prevented That Venality In Judges,  And

Those Arbitrary Proceedings,  Which The Growing Attachment To

Interest,  And The Influence Of The Crown,  Might Otherwise Have

Occasioned."   Stuart On The Constitution Of England,  P. 222 To

245.

 

"In The Anglo-Saxon Period,  Accordingly,  Twelve Only Were

Elected; And These,  Together With The Judge,  Or Presiding Officer

Of The District,  Being Sworn To Regard Justice,  And The Voice Of

Reason,  Or Conscience,  All Causes Were Submitted To Them." 

Ditto,  P. 260.

 

"Before The Orders Of Men Were Very Nicely Disinguished,  The

Jurors Were Elected From The Same Rank. When,  However,  A Regular

Subordination Of Orders Was Established,  And When A Knowledge Of

Property Had Inspired The Necessitous With Envy,  And The Rich

With Contempt,  Every Man Was Tried By His Equals. The Same Spirit

Of Liberty Which Gave Rise To This Regulation Attended Its Progress.

Nor Could Monarchs Assume A More Arbitrary Method Of Proceeding.

'I Will Not' (Said The Earl Of Cornwall To His  Sovereign)  'Render  Up 

My   Castles,   Nor   Depart  The  Kingdom,   But   By  Judgment Of  My

Peers.' Of  This Institution,   So Wisely  Calculated For  The Preservation 

Of Liberty,   All Our,  Historians Have Pronounced The Eulogium." --

Ditto,  P. 262-3.                                      

 

Blackstone Says:

 

"The Policy Of Our Ancient Constitution,  As Regulated And 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 93

Established By The Great Alfred,  Was To Bring Justice Home To

Every Man's Door,  By Constituting As Many Courts Of Judicature

As There Are Manors And Towns In The Kingdom; Wherein Injuries

Were Redressed In An Easy And Expeditious Manner,  By The

Suffrage Of Neighbors And Friends.  These Little Courts,  However, 

Communicated With Others Of A Larger Jurisdiction,  And Those

With Others Of A Still Greater Power; Ascending Gradually From

The Lowest To The Supreme Courts,  Which Were Respectively

Constituted To Correct The Errors Of The Inferior Ones,  And To

Determine Such Causes As,  By Reason Of Their Weight And

Difficulty,  Demanded A More Solemn Discussion. The Course

Of Justice Flowing In Large Streams From The King,  As The

Fountain,  To His Superior Courts Of Record; And Being Then

Subdivided Into Smaller Channels,  Till The Whole And Every Part

Of The Kingdom Were Plentifully Watered And Refreshed. An

Institution That Seems Highly Agreeable To The Dictates Of

Natural Reason,  As Well As Of More Enlightened Policy.            

                                       

"These Inferior Courts,  At Least The Name And Form Of Them,  Still

Cntinue In Our Legal Constitution; But As The Superior Courts Of

Record Have,  In Practice,  Obtained A Concurrent Original

Jurisdiction,  And As There Is,  Besides,  A Power Of Removing

Plaints Or Actions Thither From All The Inferior Jurisdictions;

Upon These Accounts (Among Others) It Has Happened That These

Petty Tribunals Have Fallen Into Decay,  And Almost Into Oblivion;

Whether For The Better Or The Worse May Be Matter Of Some

Speculation,  When We Consider,  On The One Hand,  The Increase Of

Expense And Delay,  And,  On The Other,  The More Able And Impartial

Decisions That Follow From This Change Of Jurisdiction.          

                                                               

"The Order I Shall Observe In Discoursing On These Several

Courts,  Constituted For The Redress Of Civil Injuries,  (For With

Those Of A Jurisdiction Merely Criminal  I Shall Not At Present

Concern Myself,  [23]) Will Be By Beginning With The Lowest,  And

Those Whose Jurisdiction,  Though Public And Generally Dispersed

Through The Kingdom,  Is Yet (With Regard To Each Particular

Court) Confined To Very Narrow Limits; And So Ascending Gradually

To Those Of The Most Extensive And Transcendent Power." -- 3

Blackstone,  30 To 32.                                            

                                          

"The Court-Baron Is A Court Incident To Every Manor In The

Kingdom,  To Beholden By The Steward Within The Said Manor.  This

Court-Baron Is Of Two Natures; The One Is A Customary Court,  Of

Which We Formerly Spoke,  Appertaining Entirely To The

Copy-Holders,  In Which Their Estates Are Transferred By Surrender

And Admittance,  And Other Matters Transacted Relative To Their

Tenures Only. The Other,  Of Which We Now Speak,  Is A Court Of

Common Law,  And It Is A Court Of The Barons,  By Which Name The

Freeholders Were Sometimes Anciently Called; For That It Is Held

By The Freeholders Who Owe Suit And Service To Th Manor,  The

Steward Being Rather The Registrar Than The Judge.  These Courts,

Though In Their Nature Distinct,  Are Frequently Confounded

Together. The Court We Are Now Considering,  Viz.,  The Freeholders

Court,  Was Composed Of The Lord's Tenants,  Who Were The Pares 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 94

(Equals) Of Each Other,  And Were Bound By Their Feudal Tenure To

Assist Their Lord In The Dispensation Of Domestic Justice. This

Was Formerly Held Every Three Weeks; And Its Most Important

Business Is To Determine,  By Writ Of Right,  All Controversies

Relating To The Right Of Lands Within The Manor. It May Also Hold

Plea Of Any Personal Actions,  Of Debt,  Trespass In The Case,  Or

The Like,  Where The Debt Or Damages Do Not Amount To Forty

Shillings; Which Is The Same Sum,  Or Three Marks,  That Bounded

The Jurisdiction Of The Ancient Gothic Courts In Their Lowest

Instance,  Or Fierding Courts,  So Called Because Four Were

Institute Within Every Superior District Or Hundred."   8

Blackstone,  38,  34.

 

"A Hundred Court Is Only A Larger Court-Baron,  Being Held For All

The Inhabitants Of A Particular Hundred,  Instead Of A Manor. The

Free Suitors Are Here Also The Judges,  And The Steward The

Registrar,  As In The Case Of A Court-Baron. It Is Likewise No

Court Of Record,  Resembling The Former At All Points,  Except That

In Point Of Territory It Is Of Greater Jurisdiction. This Is Said

By Sir Edward Coke To Have Been Derived Out Of The County Court

For The Ease Of The People,  That They Might Have Justice Done To

Them At Their Own Doors,  Without Any Charge Or Loss Of Time; But

Its Institution Was Probably Coeval With That Of Hundreds

Themselves,  Which Were Formerly Observed To Have Been

Introduced,  Though Not Invented,  By Alfred,  Being Derived From

The Polity Of The Ancient Germans. The Centeni,  We May Remember, 

Were The Principal Inhabitants Of A District Composed Of Different

Villages,  Oriinally In Number A Hundred,  But Afterward Only Called

By That Name,  And Who Probably Gave The Same Denomination

To The District Out Of Which They Were Chosen. Caesar Speaks

Positively Of The Judicial Power Exercised In Their Hundred

Courts And Courts-Baron. 'Princeps Regiorum Atque Pagorum' (Which

We May Fairly Construe The Lords Of Hundreds And Manors) 'Inter

Suos Jus Dicunt,  Controversias Que Minuunt.' (The Chiefs Of The

Country And The Villages Declare The Law Among Them,  And Abate

Controversies.) And Tacitus,  Who Had Examined Their Constitution

Still More Attentively,  Informs Us Not Only Of The Authority Of

The Lords,  But That Of The Centeni,  The Hundreders,  Or Jury,  Who

Were Taken Out Of The Common Freeholders,  And Had Themselves A

Share In The Determination. ' Eliguntur In Conciliis Et

Principes,  Qui Jura Per Pagos Vicosque Reddunt,  Centenii

Singulis,  Ex Plebe Comites Comcilium Simul Et Auctoritas Adsunt.

(The Princes Are Chosen In The Assemblies,  Who Administer The

Laws Throughout The Towns And Villages,  And With Each One Are

Associated An Hundred Companions,  Taken From The People,  For

Purposes Both Of Counsel And Authority.) This Hundred Court Was

Denominated Haereda In The Gothic Constitution. But This Court,

As Causes Are Equally Liable To Removal From Hence As