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

To The

King Himself,  And Authorizing Civil Suits To Obtain Possession Of

It. Thus A Man Might Be Robbed Of His Property At The Arbitrary

Pleasure Of The King. In Fact,  All The Property Of The Kingdom

Would Be Placed,  At The Arbitrary Disposal Of The King,  Through

The Judgments Of Juries In Civil Suits,  If The Laws Of The King

Were Imperative Upon A Jury In Such Suits. [2]

 

Furthemore,  It Would Be Absurd And Inconsistent To Make

A Jury Paramount To Legislation In Criminal Suits,  And

Subordinate To It In Civil Suits; Because An Individual,  By

Resisting The Execution Of A Civil Judgment,  Founded Upon An

Unjust Law,  Could Give Rise To A Criminal Suit,  In Which The Jury

Would Be Bound To Hold The Same Law Invalid. So That,  If An

Unjust Law Were Binding Upon A Jury In Civil Suits,  A Defendant,

By Resisting The Execution Of The Judgment,  Could,  In Effect,

Convert The Civil Action Into A Criminal One,  In Which The Jury

Would Be Paramount To The Same Legislation,  To Which,  In The

Civil Suit,  They Were Subordinate. In Other Words,  In The

Criminal Suit,  The Jury Would Be Obliged To Justify The Defendant

In Resisting A Law,  Which,  In The Civil Suit,  They Had Said He

Was Bound To Submit To.

 

To Make This Point Plain To The Most Common Mind   Suppose A

Law Be Enacted That The Property Of A Shall Be Given To B. B

Brings A Civil Action To Obtain Possession Of It. If The Jury,  In This

Civil Suit,  Are Bound To Hold The Law Obligatory,  They Render A

Judgment In Favor Of B,  That He Be Put In Possession Of The

Property; Thereby Declaring That A Is Bound To Submit To A Law

Depriving Him Of His Property. But When The Execution Of That

Judgment Comes To Be Attempted   That Is,  When The Sheriff Comes

To Take The Property For The Purpose Of Delivering It To B   A

Acting,  As He Has A Natural Right To Do,  In Defence Of His

Property,  Resists And Kills The Sheriff. He Is Thereupon Indicted

For Murder. On This Trial His Plea Is,  That In Killing The

Sheriff,  He Was Simply Exercising His Natural Right Of Defending

His Property Against An Unjust Law. The Jury,  Not Being Bound,  In

A Criminal Case,  By The Authority Of An Unjust Law,  Judge The Act

On Its Merits,  And Acquit The Defendant   Thus Declaring That He

Was Not Bound To Submit To The Same Law Which The Jury,  In The

Civil Suit,  Had,  By Their Judgment,  Declared That He Was Bound To

Submit To. Here Is A Contradiction Between The Two Judgments. In

The Civil Suit,  The Law Is Declared To Be Obligatory Upon A; In

The Criminal Suit,  The Same Law Is Declared To Be Of No

Obligation.

 

It Would Be A Solecism And Absurdity In Government To Allow

Such Consequences As These. Besides,  It Would Be Practically

Impossible To Maintain Government On Such Principles; For No

Government Could Enforce Its Civil Judgments,  Unless It Could

Support Them By Criminal Ones,  In Case Of Resistance. A Jury Must

Therefore Be Paramount To Legislation In Both Civil And Criminal

Cases,  Or In Neither. If They Are Paramount In Neither,  They Are

No Protection To Liberty. If They Are Paramount In Both,  Then All

Legislation Goes Only For What It May Chance To Be Worth In The

Estimation Of A Jury.

 

Another Reason Why Magna Carta Makes The Discretion And

Consciences Of Juries Paramount To All Legislation In Civilsuits,  Is,

That If Legislation Were Binding Upon A Jury,  The Jurors  (By Reason

Of Their Being Unable To Read,  As Jurors In Those Days Were,  And

Also By Reason Of Many Of The Statutes Being Unwritten,  Or At Least

Not So Many Copies Written As That Juries Could Be Supplied With

Them)   Would Have Been Necessitated At Least In Those Courts In

Which The King's Justices Sat   To Take The Word Of Those Justices

As To What The Laws Of The King Really Were. In Other Words,  They

Would Have Been Necessitated To Take The Law From The Court,  As

Jurors Do Now.

 

Now There Were Two Reasons Why,  As We May Rationally Suppose,

The People Did Not Wish Juries To Take Their Law From The King's

Judges. One Was,  That,  At That Day,  The People Probably Had Sense

Enough To See,  (What We,  At This Day,  Have Not Sense Enough To

See,  Although We Have The Evidence Of It Every Day Before Our

Eyes,) That Those Judges,  Being Dependent Upon The Legislative

Power,  (The King,) Being Appointed By It,  Paid By It,  And

Removable By It At Pleasure,  Would Be Mere Tools Of That Power,

And Would Hold All Its Legislation Obligatory,  Whether It Were

Just Or Unjust. This Was One Reason,  Doubtless,  Why Magna Carta

Made Juries,  In Civil Suits,  Paramount To All Instructions Of The

King's Judges. The Reason Was Precisely The Same As That For

Making Them Paramount To All Instructions Of Judges In Criminal

Suits,  Viz.,  That The People Did Not Choose To Subject Their

Rights Of Property,  And All Other Rights Involved In Civil Suits,

To The Operation Of Such Laws As The King Might Please To Enact.

It Was Seen That To Allow The King's Judges To Dictate The Law To

The Jury Would Be Equivalent To Making The Legislation Of The

King Imperative Upon The Jury.

 

Another Reason Why The People Did Not Wish Juries,  In Civil

Suits,  To Take Their Law From The King's Judges,  Doubtless Was,

That,  Knowing The Dependence Of The Judges Upon The King,  And

Knowing That The King Would,  Of Course,  Tolerate No Judges Who

Were Not Subservient To His Will,  They Necessarily Inferred; That

The King's Judges Would Be As Corrupt,  In The Administration Of

Justice,  As Was The King Himself,  Or As He Wished Them To Be. And

How Corrupt That Was,  May Be Inferred From The Following

Historical Facts.

 

Hume Says:

 

"It Appears That The Ancient Kings Of England Put Themselves

Entirely Upon The Footing Of The Barbarous Eastern Princes,  Whom

No Man Must Approach Without A Present,  Who Sell All Their Good

Offices,  And Who Intrude Themselves Into Every Business That They

May Have A Pretence For Extorting Money. Even Justice Was

Avowedly Bought And Sold; The King's Court Itself,  Though The

Supreme Judicature Of The Kingdom,  Was Open To None That Brought

Not Presents To The King; The Bribes Given For Expedition,  Delay,

Suspension,  And Doubtless For The Perversion Of Justice,  Were

Entered In The Public Registers Of The Royal Revenue,  And Remain

As Monuments Of The Perpetual Iniquity And Tyranny Of The Times.

The Barons Of The Exchequer,  For Instance,  The First Nobility Of

The Kingdom,  Were Not Ashamed To Insert,  As An Article In Their

Records,  That The County Of Norfolk Paid A Sum That They Might Be

Fairly Dealt With; The Borough Of Yarmouth,  That The King's

Charters,  Which They Have For Their Liberties,  Might Not Be

Violated; Richard,  Son Of Gilbert,  For The King's Helping Him To

Recover His Debt From The Jews; * * Serio,  Son Of Terlavaston,

That He Might Be Permitted To Make His Defence,  In Case He Were

Accused Of A Certain Homicide; Walter De Burton,  For Free Law,  If

Accused Of Wounding Another; Robert De Essart,  For Having An

Inquest To Find Whether Roger,  The Butcher,  And Wace And

Humphrey,  Accused Him Of Robbery And Theft Out Of Envy And

Ill-Will,  Or Not; William Buhurst,  For Having An Inquest To Find

Whether He Were Accused Of The Death Of One Godwin,  Out Of

Ill-Will,  Or For Just Cause. I Have Selected These Few Instances

From A Great Number Of The Like Kind,  Which Madox Had Selected

From A Still Greater Number,  Preserved In The Ancient Rolls Of

The Exchequer.

 

Sometimes A Party Litigant Offered The King A Certain Portion, 

A Half,  A Third,  A Fourth,  Payable Out Of The Debts Which He,  As

The Executor Of Justice,  Should Assist In Recovering. Theophania

De Westland Agreed To Pay The Half Of Two Hundred And Twelve

Marks,  That She Might Recover That Sum Against James De

Fughleston; Solomon,  The Jew,  Engaged To Pay One Mark

Out Of Every Seven That He Should Recover Against Hugh De La

Hose; Nicholas Morrel Promised To Pay Sixty Pounds,  That The Earl

Of Flanders Might Be Distrained To Pay Him Three Hundred And

Forty-Three Pounds,  Which The Earl Had Taken From Him; And These

Sixty Pounds Were To Be Paid Out Of The First Money That Nicholas

Should Recover From The Earl."   Hume,  Appendix 2.

 

"In The Reign Of Henry Ii,,  The Best And Most Just Of These (The

Norman) Princes,  * *Peter,  Of Blois,  A Judicious And Even Elegant

Writer,  Of That Age,  Gives A Pathetic Description Of The Venality

Of Justice,  And The Oppressions Of The Poor,  * * And He Scruples

Not To Complain To The King Himself Of These Abuses. We May Judge

What The Case Would Be Under The Government Of Worse Princes." 

Hume,  Appendix 2.

 

Carte Says:

 

"The Crown Exercised In Those Days An Exorbitant And

Inconvenient Power,  Ordering The Justices Of The King's Court,  In

Suits About Lands,  To Turn Out,  Put,  And Keep In Possession,

Which Of The Litigants They Pleased; To Send Contradictory

Orders; And Take Large Sums Of Money From Each; To Respite

Proceedings; To Direct Sentences; And The Judges,  Acting By Their

Commission,  Conceived Themselves Bound To Observe Such Orders,

To The Great Delay,  Interruption,  And Preventing Of Justice; At

Least,  This Was John's Practice,"   Carte's History Of England,

Vol. 1,  P. 832.

 

Hallam Says:

 

"But Of All The Abuses That Deformed The Anglo-Saxon Government,

None Was So Flagitious As The Sale Of Judicial Redress,  The King,

We Are Often Told,  Is The Fountain Of Justice; But In Those Ages

It Was One Which Gold Alone Could Unseal. Men Fined (Paid Fines)

To Have Right Done Them; To Sue In A Certain Court; To Implead A

Certain Person; To Have Restitution Of Land Which They Had

Recovered At Law. From The Sale Of That Justice Which Every

Citizen Has A Right To Demand,  It Was An Easy Transition To

Withhold Or Deny It. Fines Were Received For The King's Help

Against The Adverse Suitor; That Is,  For Perversion Of Justice,

Or For Delay. Sometimes They Were Paid By Opposite Parties,  And,

Of Course,  For Opposite Ends."   2 Middle Ages,  438.

 

In Allusion To The Provision Of Magna Carta On This Subject,

Hallam Says:

 

"A Law Which Enacts That Justice Shall Neither Be Sold,  Denied,

Nor Delayed,  Stamps With Infamy That Government Under Which It

Had Become Necessary."   2 Middle Ages,  451.

 

Lingard,  Speaking Of The Times Of Henry Ii.,  (Say 1184,) Says:

 

"It Was Universally Understood That Money Possessed Greater

Influence Than Justice In The Royal Courts,  And Instances Are On

Record,  In Which One Party Has Made The King A Present To

Accelerate,  And The Other By A More Valuable Offer Has Succeeded

In Retarding A Decision. * * But Besides The Fines Paid To The

Sovereigns,  The Judges Often Exacted Presents For Themselves,  And

Loud Complaints Existed Against Their Venality And Injustice." 

8 Lingard,  231.

 

In The Narrative Of "The Costs And Charges Which I,  Richard De

Anesty,  Bestowed In Recovering The Land Of William,  My Uncle,"

(Some Fifty Years Before Magna Carta,) Are The Following Items:

 

"To Ralph,  The King's Physician,  I Gave Thirty-Six Marks And One

Half; To The King An Hundred Marks; And To The Queen One Mark Of

Gold." The Result Is Thus Stated. "At Last,  Thanks To Our Lord

The King,  And By Judgment Of His Court,  My Uncle's Land Was

Adjudged To Me."   2 Palgrave's Rise And Progress Of The English

Commonwealth,  P. 9 And 24.

 

Palgrave Also Says:

 

"The Precious Ore Was Cast Into The Scales Of Justice,  Even When

Held By The Most Conscientious Of Our Anglo-Saxon Kings. A Single

Case Will Exemplify The Practices Which Prevailed. Alfric,  The

Heir Of 'Aylwin,  The Black,' Seeks To Set Aside The Death-Bed

Bequest,  By Which His Kinsman Bestowed Four Rich And Fertile

Manors Upon St. Benedict. Alfric,  The Claimant,  Was Supported By

Extensive And Powerful Connexions; And Abbot Alfwine,  The

Defendant,  Was Well Aware That There Would Be Danger In The

Discussion Of The Dispute In Public,  Or Before The Folkmoot,

(People's Meeting,  Or County Court); Or,  In Other Words,  That The

Thanes Of The Shire Would Do Their Best To Give A Judgment In

Favor Of Their Compeer. The Plea Being Removed Into The Royal

Court,  The Abbot Acted With That Prudence Which So Often Calls

Forth The Praises Of The Monastic Scribe. He Gladly Emptied

Twenty Marks Of Gold Into The Sleeve Of The Confessor,  (Edward,)

And Five Marks Of Gold Presented To Edith,  The Fair,  Encouraged

Her To Aid The Bishop,  And To Exercise Her Gentle Influence In

His Favor. Alfric,  With Equal Wisdom,  Withdrew From Prosecuting

The Hopeless Cause,  In Which His Opponent Might Possess An

Advocate In The Royal Judge,  And A Friend In The King's Consort.

Both Parties. Therefore,  Found It Desirable To Come To An

Agreement."   1 Palgrave's Rise And Progress,  &C;.,  P. 650.

 

But Magna Carta Has Another Provision For