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

Chapter 6 (Juries Of The Present Day Illegal) Pg 121

Panel So Hereafter To Be Made,  To Be Goodand Lawful.  This Act To

Endure Only To The Next Parliament "   11 Henry Vii.,  Ch. 24,  Sec.

6. (1495.)

 

This Act Was Continued In Force By 1 Henry Viii,  Ch. 11,  (1509,)

To The End Of The Then Next Parliament.

 

It Was Reenacted,  And Made Perpetual,  By 3 Henry Viii.,  Ch. 12.

(1511.)

 

These Acts Gave Unlimited Authority To The King's' Justices To

Pack Juries At Their Discretion; And Abolished The Last Vestige Of

The Common Law Right Of The People To Sit As Jurors,  And Judge Of

Their Own Liberties,  In The Courts To Which The Acts Applied.

 

Yet,  As Matters Of Law,  These Statutes Were No More Clear

Violations Of The Common Law,  The Fundamental And Paramount

"Law Of The Land," Than Were Those Statutes Which Affixed The

Property Qualifications Before Named; Because,  If The King,  Or The

Government,  Can Select The Jurors On The Ground Of Property,  It

Can Select Them On Any Other Ground Whatever.

 

Any Infringement Or Restriction Of The Common Law Right Of The

Whole Body Of The Freemen Of The Kingdom To Eligibility As Jurors,

Was Legally An Abolition Of The Trial By Jury Itself. The Juries

No Longer Represented "The Country," But Only A Part Of The

Country; That Part,  Too,  On Whose Favor The Government Chose To

Rely For The Maintenance Of Its Power,  And Which It Therefore Saw

Fit To Select As Being The Most Reliable Instruments For Its

Purposes Of Oppression Towards The Rest. And The Selection Was

Made On The Same Principle,  On Which Tyrannical Governments

Generally Select Their Supporters,  Viz.,  That Of Conciliating

Those Who Would Be Most Dangerous As Enemies,  And Most

Powerful As Friends That Is,  The Wealthy. [6]

 

These Restrictions,  Or Indeed Any One Of Them,  Of The Right Of

Eligibility As Jurors,  Was,  In Principle,  A Complete Abolition Of

The English Constitution; Or,  At Least,  Of Its Most Vital And

Valuable Part. It Was,  In Principle,  An Assertion Of A Right,  On

The Part Of The Government,  To Select The Individuals Who Were To

Determine The Authority Of Its Own Laws,  And The Extent Of Its Own

Powers. It Was,  Therefore,  In Effect,  The Assertion Of A Right,  On

The Part Of The Government Itself,  To Determine Its Own Powers,

And The Authority Of Its Own Legislation,  Over The People; And A

Denial Of All Right,  On The Part Of The People,  To Judge Of Or

Determine Their Own Liberties Against The Government. It Was,

Therefore,  In Reality,  A Declaration Of Entire Absolutism On The

Part Of The Government. It Was An Act As Purely Despotic,  In

Principle,  As Would Have Been The Express Abolition Of All Juries

Whatsoever. By "The Law Of The Land," Which The Kings Were Sworn

To Maintain,  Every Free Adult Male British Subject Was Eligible To

The Jury Box,  With Full Power To Exercise His Own Judgment As To

The Authority And Obligation Of Every Statute Of The King,  Which

Might Come Before Him. But The Principle Of These Statutes (Fixing

Chapter 6 (Juries Of The Present Day Illegal) Pg 122

The Qualifications Of Jurors) Is,  That Nobody Is To Sit In

Judgment Upon The Acts Or Legislation Of The King,  Or The

Government,  Except Those Whom The Government Itself Shall Select

For That Purpose. A More Complete Subversion Of The Essential

Principles Of The English Constitution Could Not Be Devised.

 

The Juries Of England Are Illegal For Another Reason,  Viz.,  That

The Statutes Cited Require The Jurors (Except In London And A Few

Other Places) To Be Freeholders. All The Other Free British

Subjects Are Excluded; Whereas,  At Common Law,  All Such Subjects

Are Eligible To Sit In Juries,  Whether They Be Freeholders Or Not.

 

It Is True,  The Ancient Common Law Required The Jurors To Be

Freeholders; But The Term Freeholder No Longer Expresses The Same

Idea That It Did In The Ancient Common Law; Because No Land Is Now

Holden In England On The Same Principle,  Or By The Same Tenure,  As

That On Which All The Land Was Held In The Early Times Of The

Common Law.

 

As Has Heretofore Been Mentioned,  In The Early Times Of The

Common Law The Land Was Considered The Property Of The State;

And Was All Holden By The Tenants,  So Called,  (That Is,  Holders,)

On The Condition Of Their Rendering Certain Military And Civil Services

To The State,  (Or To The King As The Representative Of The State,)

Under The Name Of Rents. Those Who Held Lands On These Terms

Were Called Free Tenants,  That Is,  Free Holders   Meaning Free Persons,

Or Members Of The State,  Holding Lands   To Distinguish Them From

Villeins,  Or Serfs,  Who Were Not Members Of The State,  But Held

Their Lands By A More Servile Tenure,  And Also To Distinguish Them

From Persons Of Foreign Birth,  Outlaws,  And All Other Persons,  Who

Were Not Members Of The State.

 

Every Freeborn Adult Male Englishman (Who Had Not Lost His Civil

Right" By Crime Or Otherwise) Was Entitled To Land Of Right; That

Is,  By Virtue Of His Civil Freedom,  Or Membership Of The Body

Politic. Every Member Of The State Was Therefore A Freeholder; And

Every Freeholder Was A Member Of The State. And The Members Of

The State Were Therefore Called Freeholders. But What Is Material To

Be Observed,  Is,  That A Man's Right To Land Was An Incident To His

Civil Freedom; Not His Civil Freedom An Incident To His Right To

Land. He Was A Freeholder Because He Was A Freeborn Member Of

The State; And Not A Freeborn Member Of The State Because He Was A

Freeholder; For This Last Would Be An Absurdity.

 

As The Tenures Of Lands Changed,  The Term Freeholder Lost Its

Original Significance,  And No Longer Described A Man Who Held Land

Of The State By Virtue Of His Civil Freedom,  But Only One Who Held

It In Fee-Simple   That Is,  Free Of Any Liability To Military Or

Civil Services. But The Government,  In Fixing The Qualifications

Of Jurors,  Has Adhered To The Term Freeholder After That Term Has

Ceased To Express The Thing Originally Designated By It.

 

The Principle,  Then,  Of The Common Law,  Was,  That Every Freeman,

Or Freeborn Male Englishman,  Of Adult Age,  &C;.,  Was Eligible To

Chapter 6 (Juries Of The Present Day Illegal) Pg 123

Sit In Juries,  By Virtue Of His Civil Freedom,  Or His Being A

Member Of The State,  Or Body Politic. Rut The Principle Of The

Present English Statutes Is,  That A Man Shall Have A Right To Sit

In Juries Because He Owns Lands In Fee-Simple. At The Common Law

A Man Was Born To The Right To Sit In Juries. By The Present

Statutes He Buys That Right When He Buys His Land. And Thus This,

The Greatest Of All The Political Rights Of An Englishman,  Has

Become A Mere Article Of Merchandise; A Thing That Is Bought And

Sold In The Market For What It Will Bring.

 

Of Course,  There Can Be No Legality In Such Juries As These; But

Only In Juries To Which Every Free Or Natural Born Adult Male

Englishman Is Eligible.

 

The Second Essential Principle Of The Common Law,  Controlling The

Selection Of Jurors,  Is,  That When The Selection Of The Actual

Jurors Comes To Be Made,  (From The Whole Body Of Male Adults,)

That Selection Shall Be Made In Some Mode That Excludes The

Possibility Of Choice On The Part Of The Government.

 

Of Course,  This Principle Forbids The Selection To Be Made By Any

Officer Of The Government.

 

There Seem To Have Been At Least Three Modes Of Selecting The

Jurors,  At The Common Law. 1. By Lot. [7] 2. Two Knights,  Or Other

Freeholders,  Were Appointed,  (Probably By The Sheriff,) To Select

The Jurors. 3. By The Sheriff,  Bailiff,  Or Other Person,  Who Held

The Court,  Or Rather Acted As Its Ministerial Officer. Probably

The Latter Mode May Have Been The Most Common,  Although There

May Be Some Doubt On This Point.

 

At The Common Law The Sheriff's,  Bailiffs,  And Other Officers Were

Chosen By The People,  Instead Of Being Appointed By The King. (4

Blackstone,  413. Introduction To Gilbert's History Of The Common

Pleas,  P. 2; Note,  And P. 4.) This Has Been Shown In A Former

Chapter. [8] At Common Law,  Therefore,  Jurors Selected By These

Officers Were Legally Selected,  So Far As The Principle Now Under

Discussion Is Concerned; That Is,  They Were Not Selected By Any

Officer Who Was Dependent On The Government.

 

But In The Year 1315,  One Hundred Years After Magna Carta,  The

Choice Of Sheriff's Was Taken From The People,  And It Was Enacted:

 

"That The Sheriffs Shall Henceforth Be Assigned By The Chancellor,

Treasurer,  Barons Of The Exchequer,  And By The Justices. And In

The Absence Of The Chancellor,  By The Treasurer,  Barons And

Justices."   9 Edward Ii.,  St. 2. (1315.)

 

These Officers,  Who Appointed The Sheriffs,  Were Themselves

Appointed By The King,  And Held Their Offices During His Pleasure.

Their Appointment Of Sheriffs Was,  Therefore,  Equivalent To An

Appointment By The King Himself. And The Sheriffs,  Thus Appointed,

Held Their Offices Only During The Pleasure Of The King,  And Were

Of Course Mere Tools Of The King; And Their Selection Of Jurors

Chapter 6 (Juries Of The Present Day Illegal) Pg 124

Was Really A Selection By The King Himself. In This Manner The

King Usurped The Selection Of The Jurors Who Were To Sit In

Judgment Upon His Own Laws.

 

Here,  Then,  Was Another Usurpation,  By Which The Common Law Trial

By Jury Was Destroyed,  So Far As Related To The County Courts,  In

Which The Sheriff's Presided,  And Which Were The Most Important

Courts Of The Kingdom. From This Cause Alone,  If There Were No

Other,  There Has Not Been A Legal Jury In A County Court In

England,  For More Than Five Hundred Years.

 

In Nearly Or Quite All The States Of The United States The Juries

Are Illegal,  For One Or The Other Of The Same Reasons That Make

The Juries In England Illegal.

 

In Order That The Juries In The United States May Be Legal   That

Is,  In Accordance With The Principles Of The Common Law It Is

Necessary That Every Adult Male Member Of The State