An Essay On The Trial By Jury - Lysander Spooner (little red riding hood read aloud .TXT) 📗
- Author: Lysander Spooner
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There, And That Not For The Service Of Their Persons, But For The
Service Of Their Fees. But Women, Infants Within The Age Of
Twenty-One Years, Deaf, Dumb, Idiots, Those Who Are Indicted or
Appealed of Mortal Felony, Before They Be Acquitted, Diseased
Persons, And Excommunicated persons Are Exempted from Doing
Suit." Mirror Of Justices, 50 51.
In The Section "Of The Sheriff'S Turns," It Is Said:
"The Sheriff'S By Ancient Ordinances Hold Several Meetings Twice
In The Year In every Hundred; Where All The Freeholders Within The
Hundred are Bound To Appear For The Service Of Their Fees."
Mirror Of Justices, 50.
The Following statute Was Passed by Edward I., Seventy Years After
Magna Carta:
"Forasmuch Also As Sheriffs, Hundreders, And Bailiffs Of
Liberties, Have Used to Grieve Those Which Be Placed under Them,
Putting in assizes And Juries Men Diseased and Decrepit, And
Having continual Or Sudden Disease; And Men Also That Dwelled not
In The Country At The Time Of The Summons; And Summon Also An
Unreasonable Number Of Jurors, For To Extort Money From Some Of
Them, For Letting them Go In peace, And So The Assizes And Juries
Pass Many Times By Poor Men, And The Rich Abide At Home By
Reason Of Their Bribes; It Is Ordained that From Henceforth In one
Assize No More Shall Be Summoned than Four And Twenty; And
Old Men Above Three Score And Ten Years, Being continually Sick,
Or Being diseased at The Time Of The Summons, Or Not Dwelling in
That Country, Shall Not Be Put In juries Of Petit Assizes." St. 13
Edward I., Ch. 38. (1285.)
Although This Command To The Sheriff'S And Other Officers, Not To
Summon, As Jurors, Those Who, From Age And Disease, Were
Physically Incapable Of Performing the Duties, May Not, Of Itself,
Afford Any Absolute Or Legal Implication, By Which We Can
Determine Precisely Who Were, And Who Were Not, Eligible As Jurors
At Common Law, Yet The Exceptions Here Made Nevertheless Carry A
Seeming confession With Them That, At Common Law, All Male
Adults Were Eligible As Jurors.
But The Main Principle Of The Feudal System Itself, Shows That All
The Full And Free Adult Male Members Of The State That Is, All
Who Were Free Born, And Had Not Lost Their Civil Rights By Crime,
Or Otherwise Must, At Common Law, Have Been Eligible As Jurors.
What Was That Principle? It Was, That The State Rested for Support
Upon The Land, And Not Upon Taxation Levied upon The People
Personally. The Lands Of The Country Were Considered the Property
Of The State, And Were Made To Support The State In this Way: A
Portion Of Them Was Set Apart To The King, The Rents Of Which Went
To Pay His Personal And Official Expenditures, Not Including the
Maintenance Of Armies, Or The Administration Of Justice. War And
The Administration Of Justice Were Provided for In the Following
Manner. The Freemen, Or The Free-Born Adult Male Members Of The
Chapter 6 (Juries Of The Present Day Illegal) Pg 141State Who Had Not Forfeited their Political Rights Were
Entitled to Land Of Right, (Until All The Land Was Taken Up,) On
Condition Of Their Rendering certain Military And Civil Services,
To The State. The Military Services Consisted in serving
Personally As Soldiers, Or Contributing an Equivalent In horses,
Provisions, Or Other Military Supplies. The Civil Services
Consisted, Among Other Things, In serving as Jurors (And, It Would
Appear, As Witnesses) In the Courts Of Justice. For These Services
They Received no Compensation Other Than The Use Of Their Lands.
In This Way The State Was Sustained; And The King had No Power To
Levy Additional Burdens Or Taxes Upon The People. The Persons
Holding lands On These Terms Were Called freeholders In later
Times Freemen Meaning free And Full Members Of The State.
Now, As The Principle Of The System Was That The Freeholders Held
Their Lands Of The State, On The Condition Of Rendering these
Military And Civil Services As Rents For Their Lands, The
Principle Implies That All The Freeholders Were Liable To These
Rents, And Were Therefore Eligible As Jurors. Indeed, I Do Not
Know That It Has Ever Been Doubted that, At Common Law, All The
Freeholders Were Eligible As Jurors. If All Had Not Been Eligible,
We Unquestionably Should Have Had Abundant Evidence Of The
Exceptions. And If Anybody, At This Day, Allege Any Exceptions,
The Burden Will Be On Him To Prove Them. The Presumption Clearly
Is That All Were Eligible.
The First Invasion Which I Find Made, By The English Statutes,
Upon This Common Law Principle, Was Made In i285, Seventy Years
After Magna Carta. It Was Then Enacted as Follows:
"Nor Shall, Any Be Put In assizes Or Juries, Though They Ought To
Be Taken In their Own Shire, That Hold A Tenement Of Less Than The
Value Of Twenty Shillings Yearly. And If Such Assizes And Juries
Be Taken Out Of The Shire, No One Shall Be Placed in them Who
Holds A Tenement Of Less Value Than Forty Shillings Yearly At The
Least, Except Such As Be Witnesses In deeds Or Other Writings,
Whose Presence Is Necessary, So That They Be Able To Travel."
St. 13 .Edward I., Ch. 38. (1285.)
The Next Invasion Of The Common Law, In this Particular, Was Made
In 1414, About Two Hundred years After Magna Carta, When It Was
Enacted:
"That No Person Shall Be Admitted to Pass In any Inquest Upon
Trial Of The Death Of A Man, Nor In any Inquest Betwixt Party And
Party In plea Real, Nor In plea Personal, Whereof The Debt Or The
Damage Declared amount To Forty Marks, If The Same Person Have
Not Lands Or Tenements Of The Yearly Value Of Forty Shillings Above
All Charges Of The Same." 2 Henry V., St. 2, Ch. 3. (1414.)
Other Statutes On This Subject Of The Property Qualifications Of
Jurors, Are Given In the Note. [4]
From These Statutes It Will Be Seen That, Since 1285, Seventy
Chapter 6 (Juries Of The Present Day Illegal) Pg 142Years After Magna Carta, The Common Law Right Of All Free British
Subjects To Eligibility As Jurors Has Been Abolished, And The
Qualifications Of Jurors Have Been Made A Subject Of Arbitrary
Legislation. In other Words, The Government Has Usurped the
Authority Of Selecting the Jurors That Were To Sit In judgment
Upon Its Own Acts. This Is Destroying the Vital Principle Of The
Trial By Jury Itself, Which Is That The Legislation Of The Government
Shall Be Subjected to The Judgment Of A Tribunal, Taken
Indiscriminately From The Whole People, Without Any Choice By The
Government, And Over Which The Government Can Exercise No
Control. If The Government Can Select The Jurors, It Will, Of Course,
Select Those Whom It Supposes Will Be Favorable To Its Enactments.
And An Exclusion Of Any Of The Freemen From Eligibility Is A
Selection Of Those Not Excluded.
It Will Be Seen, From The Statutes Cited, That The Most Absolute
Authority Over The Jury Box That Is, Over The Right Of The
People To Sit In juries Has Been Usurped by The Government; That
The Qualifications Of Jurors Have Been Repeatedly Changed, And
Made To Vary From A Freehold Of Ten Shillings Yearly, To One Of
"Twenty Pounds By The Year At Least Above Reprises." They Have
Also Been Made Different, In the Counties Of Southampton, Surrey,
And Sussex, From What They Were In the Other Counties; Different
In Wales From What They Were In england; And Different In the City
Of London, And In the County Of Middlesex, From What They Were In
Any Other Part Of The Kingdom.
But This Is Not All. The Government Has Not Only Assumed
Arbitrarily To Classify The People, On The Basis Of Property, But
It Has Even Assumed to Give To Some Of Its Judges Entire And
Absolute Personal Discretion In the Selection Of The Jurors To Be
Impaneled in criminal Cases, As The Following statutes Show.
"Be It Also Ordained and Enacted by The Same Authority, That All
Panels Hereafter To Be Returned, Which Be Not At The Suit Of Any
Party, That Shall Be Made And Put In afore Any Justice Of Gaol
Delivery Or Justices Of Peace In their Open Sessions To Inquire
For The King, Shall Hereafter Be Reformed by Additions And Taking
Out Of Names Of Persons By Discretion Of The Same Justices Before
Whom Such Panel Shall Be Returned; And The Same Justices Shall
Hereafter Command The Sheriff, Or His Ministers In his Absence, To
Put Other Persons In the Same Panel By Their Discretions; And That
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
Chapter 6 (Juries Of The Present Day Illegal) Pg 143The 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
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