An Essay On The Trial By Jury - Lysander Spooner (epub e ink reader .TXT) 📗
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Common Court-Baron, And By The Same Writs, And May Also Be
Reviewed By Writ Of False Judgment, Is Therefore Fallen Into
Equal Disuse With Regard To The Trial Of Actions." 8 Blackstone, 34,
85.
"The County Court Is A Court Incident To The Jurisdiction Of The
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 95Sheriff. It Is Not A Court Of Record, But May Hold Pleas Of Debt,
Or Damages, Under The Value Of Forty Shillings; Over Some Of
Which Causes These Inferior Courts Have, By The Express Words Of
The Statute Of Gloucester, (6 Edward I., Eh. 8,) A Jurisdicton
Totally Exclusive Of The King's Superior Courts. * * The County
Court May Also Hold Plea Of Many Real Actions, And Of All
Personal Actions To Any Amount, By Virtue Of A Special Writ,
Called A Justicies, Which Is A Writ Empowering The Sheriff, For
The Sake Of Despatch, To Do The Samee Justice In His County Court
As Might Otherwise Be Had At Westminster. The Freeholders Of The
County Court Are The Real Judges In This Court, And The Sheriff
Is The Ministerial Ofhcer. * * In Modern Times, As Proceedings
Are Removable From Hence Into The King's Superior Courts, By Writ
Of Pone Or Recordari, In The Same Manner As From Hundred Courts
And Courts-Baron, And As The Same Writ Of False Judgment May Be
Had In Nature Of A Writ Of Error, This Has Occasioned The Same
Disuse Of Bringing Actions Therein." 3 Blackstone, 36, 37.
"Upon The Whole, We Cannot But Admire The Wise Economy And
Admirable Provision Of Our Ancestors In Settling The Distribution
Of Justice In A Method So Well Calculated For Cheapness,
Expedition, And Ease. By The Constitution Which They Established,
All Trivial Debts, And Injuries Of Small Consequence, Were To Be
Recovered Or Redressed In Every Man's Own County, Hundred, Or
Perhaps Parish." 3 Blackstone, 59.
[22] It Would Be Wholly Erroneous, I Think, To Infer From This
Statement Of Stuart, That Either The "Priests, Princes, Earls, Or
Eorldormen" Exercised Any Authority Over The Jury In The Trial Of
Causes, In The Way Of Dictating The Law To Them. Henry's Account
Of This Matter Doubtless Gives A Much More Accurate
Representation Of The Truth. He Says That Anciently
[23] There Was No Distinction Between The Civil And Criminal
Courts, As To The Rights Or Powers Of Juries.
[24] This Quaint And Curious Book; (Smith's Commonwealth
Of England) Describes The Minutiae Of Trials, Giving In Detail
The Mode Of Impaneling The Jury And Then The Conduct Of The
Lawyers, Witnesses, And Court I Give The Following Extracts,
Tending To Show That The Judges Impose No Law Upon The Juries,
In Either Civil Or Criminal Cases But Only Require Them To
Determine The Causes According To Their Consciences.
In Civil Causes He Says:
"When It Is Thought That It Is Enough Pleaded Before Them,
And The Witnesses Have Said What They Can, One Of The Judges,
With A Brief And Pithy Recapitulation, Reciteth To The Twelve
In Sum The Arguments Of The Sergeants Of Either Side, That
Which The Witnesses Have Declared, And The Chief Points Of The
Evidence Showed In Writing, And Once Again Putteth Them In
Mind Of The Issue, And Sometime Giveth It Them In Writing,
Delivering To Them The Evidence Which Is Showed On Either Part,
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 96If Any Be, (Evidence Here Is Called Writings Of Contracts,
Authentical After The Manner Of England, That Is To Say, Written,
Sealed, And Delivered,) And Biddeth Them Go Together." P. 74.
This Is The Whole Account Given Of The Charge To The Jury.
In Criminal Eases, After The Witnesses Have Been Heard, And
The Prisoner Has Said What He Pleases In His Defence, The Book
Proceeds:
"When The Judge Hath Heard Them Say Enough, He Asketh If
They Can Say Any More. If They Say No, Then He Turneth His Speech
To The Inquest. 'Good Men, (Saith He,) Ye Of The Inquest, Ye Have
Heard What These Men Say Against The Prisoner. You Have Also
Heard What The Prisoner Can Say For Himself. Have An Eye To
Your Oath, And To Your Duty, And Do That Which God Shall Put
In Your Minds To The Discharge Of Your Consciences, And Mark
Well What Is Said.' " P. 92.
This Is The Whole Account Given Of The Charge In A Criminal Ease.
The Following Statement Goes To Confirm The Same Idea, That
Jurors In England Have Formerly Understood It To Be Their Right And
Duty To Judge Only According To Their Consciences, And Not To
Submit To Any Dictation From The Court, Either As To Law Or Fact.
"If Having Pregnant Evidence, Nevertheless, The Twelve Do
Acquit The Malefactor Which They Will Do Sometime, Especially If
They Perceive Either One Of The Justices Or Of The Judges, Or Some
Other Man, To Pursue Too Much And Too Maliciously The Death Of The
Prisoner, * * The Prisoner Escapeth; But The Twelve (Are) Not Only
Rebuked By The Judges, But Also Threatened Of Punishment; And
Many Times Commanded To Appear In The Star-Chamber, Or Before The
Privy Council For The Matter. But This Threatening Chanceth Oftener
Than The Execution Thereof; And The Twelve Answer With Most
Gentle Words, They Did It According To Their Consciences, And
Pray The Judges To Be Good Unto Them, They Did As They Thought
Right, And As They Accorded All, And So It Passeth Away For The
Most Part." P. 100.
The Account Given Of The Trial Of A Peer Of The Realm Corroborates
The Same Point:
"If Any Duke, Marquis, Or Any Other Of The Degrees Of A Baron,
Or Above, Lord Of The Parliament, Be Appeached Of Treason, Or Any
Other Capital Crime, He Is Judged By His Peers And Equals; That,
Is, The Yeomanry Doth Not Go Upon Him, But An Inquest Of The Lords
Of Parliament, And They Give Their Voice Not One For All, But Each
Severally As They Do In Parliament Being (Beginning) At The
Youngest Lord. And For Judge One Lord Sitteth, Who Is Constable Of
England For That Day. The Judgment Once Given, He Breaketh His
Staff, And Abdicateth His Office. In The Rest There Is No Difference
From That Above Written," (That Is, In The Case Of A Freeman.) P. 98.
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 97
[25] "The Present Form Of The Jurors' Oath Is That They Shall 'Give A
True Verdict According To The Evidence.' At What Time This Form Was
Introduced Is Uncertain; But For Several Centuries After The Conquest,
The Jurors, Both In Civil And Criminal Cases, Were Sworn Merely To
Speak The Truth. (Glanville, Lib. 2, Cap. 17; Bracton, Lib. 3, Cap. 22; Lib. 4,
P. 287, 291; Britton, P. 135.) Hence Their Decision Was Accurately
Termed Veredictum, Or Verdict, That Is, ' A Thing Truly Said'; Whereas
The Phrase 'True Verdict' In The Modern Oath Is Not An Accurate
Expression." Political Dictionary, Word Jury.
[26] Of Course, There Can Be No Legal Trial By Jury, In Either Civil Or
Criminal Cases, Where The Jury Are Sworn To Try The Cases "According
To Law."
[27] Coke, As Late As 1588, Admits That Amercements Must Be Fixed By The
Peers (8 Coke's Rep. 88, 2 Inst. 27); But He Attempts, Wholly Without
Success, As It Seems To Me, To Show A Difference Between Fines And
Amercements. The Statutes Are Very Numerous, Running Through The
Three Or Four Hundred Years Immediately Succeeding Magna Carta,
In Which Fines, Ransoms, And Amercements Are Spoken Of As If They
Were The Common Punishments Of Offences, And As If They All Meant The
Same Thing. If, However, Any Technical Difference Could Be Made
Out Between Them, There Is Clearly None In Principle; And The Word
Amercement, As Used In Magna Carta, Must Be Taken In Its Most
Comprehensive Sense.
[28] "Common Right" Was The Common Law. 1 Coke's
Inst. 142 A. 2 Do. 55, 6.
[29] The Oath Of The Justices Is In These Words:"Ye Shall
Swear, That Well And Lawfully Ye Shall Serve Our Lord The
King And His People, In The Office Of Justice, And That
Lawfully Ye Shall Counsel The King In His Business, And That
Ye Shall Not Counsel Nor Assent To Anything Which May
Turn Him In Damage Or Disherison In Any Manner, Way, Or
Color. And That Ye Shall Not Know The Damage Or
Disherison Of Him, Whereof Ye Shall Not Cause Him To Be
Warned By Yourself, Or By Other; And That Ye Shall Do
Equal Law And Execution Of Right To All His Subjects, Rich
And Poor, Without Having Regard To Any Person. And That
Ye Take Not By Yourself, Or By Other, Privily Nor Apertly,
Gift Nor Reward Of Gold Nor Silver, Nor Of Any Other
Thing That May Turn To Your Profit, Unless It Be Meat Or
Drink, And That Of Small Value, Of Any Man That Shall
Have Any Plea Or Process Hanging Before You, As Long
As The Same Process Shall Be So Hanging, Nor After For
The Same Cause. And That Ye Take No Fee, As Long As Ye
Shall Be Justice, Nor Robe Of Any Man Great Or Small, But
Of The King Himself. And That Ye Give None Advice Or
Counsel To No Man Great Or Small, In No Case Where The King
Is Party. And In Case That Any, Of What Estate Or Condition
They Be, Come Before You In Your Sessions With Force
And Arms, Or Otherwise Against The Peace, Or Against The
Form Of The Statute Thereof Made, To Disturb Execution
Of The Common Law," [Mark The Term, "Common Law,")
"Or To Menace The People That They May Not Pursue The
Law, That Ye Shalt Cause Their Bodies To Be Arrested And
Put In Prison; And In Case They Be Such That Ye Cannot
Arrest Them, That Ye Certify The King Of Their Names, And
Of Their Misprision, Hastily, So That He May Thereof
Ordain A Convenable Remedy. And That Ye By Yourself,
Nor By Other, Privily Nor Apertly, Maintain Any Plea Or
Quarrel Hanging In The King's Court, Or Elsewhere In The
Country. And That Ye Deny No Man Common Right By
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
" Before Mentioned,) "That Ye Do Nothing By Such
Letters, But Certify The King Thereof, And Proceed To
Execute The Law," (The "Common Law" Before Mentioned,)
"Notwithstanding The
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