An Essay On The Trial By Jury - Lysander Spooner (little red riding hood read aloud .TXT) 📗
- Author: Lysander Spooner
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Imprisoned, Nor Disseized, Nor Outlawed, Nor Exiled, Nor In any
Manner Destroyed, Nor Shall The King proceed or Send (Any One)
Against Him, With Force, Unless By The Judgment Of His Peers,
Or The Law Of The Land."
The True Translation Of The Words Nec Super Eum Ibimus, Nec Super
Eum Mittemus, In magna Carta, Is Thus Made Certain, As Follows,
"Nor Will We (The King) Proceed against Him, Nor Send (Any One)
Against Him, With Force Or Arms. [15]
It Is Evident That The Difference Between The True And False
Translations Of The Words, Nec Super Eum Ibius, Nec Super Eum
Mittemus, Is Of The Highest Legal Importance, Inasmuch As The True
Translation, Nor Will We (The King) Proceed against Him, Nor Send
(Any One) Against Him By Force Of Arms, Represents The King only In
An Executive Character, Carrying the Judgment Of The Peers And "The
Law Of The Land" Into Execution; Where As The False Translation, Nor
Will We Pass Upon Him, Nor Condemn Him, Gives Color For The
Exercise Of A Judicial Power, On The Part Of The King, To Which The
King had No Right, But Which, According to The True Translation,
Belongs Wholly To Th Jury.
"Per Legale Judicium Parium Suorum."
The Foregoing interpretation Is Corroborated, (If It Were Not Already
Too Plain To Be Susceptible Of Corroboration,) By The True
Interpretation Of The Phrase "Per Legale Judicium Parium Suorum."
In Giving this Interpretation, I Leave Out, For The Present, The Word
Legale, Which Will Be Defined afterwards.
The True Meaning of The Phrase, Per Judicium Parium Suorum, Is,
According to The Sentence Of His Eers. The Word Judicium,
Judgment, Has A Technical Meaning in the Law, Signifying the
Decree Rendered in the Decision Of A Cause. In civil Suits This
Decision Is Called a Judgment; In chancery Proceedngs It Is Called a
Decree; In criminal Actions It Is Called a Sentence, Or Judgment,
Indifferently. Thus, In a Criminal Suit, "A Motion In arrest Of
Judgment," Means A Motion In arrest Of Sentence. [16]
In Cases Of Sentence, Therefore, In criminal Suits, The Words
Sentence And Judgment Are Synonymous Terms. They Are, To This
Day, Commonly Used in law Books As Synonymous Terms. And The
Phrase Per Jndicium Parium Suorum, Therefore, Implies That The
Jury Are To Fix The Sentence.
The Word Per Means According to. Otherwise There Is No Sense In
The Phrase Per Judicium Paruim Suorum. There Would Be No Sense
In Saying that A King might Imprison, Disseize, Outlaw, Exile, Or
Otherwise Punish A Man, Or Proceed against Him, Or Send Any One
Against Him, By Force Or Arms, By A Judgment Of His Peers; But There
Is Sense In saying that The King may Imprison, Disseize, And Punish
A Man, Or Proceed against Him, Or Send Any One Against Him, By
Force Or Arms, According to A Judgment, Or Sentence, Of His Peers;
Because In that Case The King would Be Merely Carrying the
Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 27Sentence Or Judgment Of The Peers Into Execution.
The Word Per, In the Phrase "Per Judicium Parium Suorum," Of
Course Means Precisely What It Does In the Next Phrase, "Per Legem
Terrae;" Where It Obviously Means According to, And Not By, As It Is
Usually Translated. There Would Be No Sense In saying that The King
Might Proceed against A Man By Force Or Arms, By The Law Of The
Land; But There Is Sense In saying that He May Proceed against Him,
By Force Or Arms, According to The Law Of The Land; Because The
King would Then Be Acting only As An Executive Officer, Carrying
The Law Of The Land Into Execution. Indeed, The True Meaning of The
Word By, As Used in similar Cases Now, Always Is According to; As,
For Example, When We Say A Thing was Done By The Government, Or
By The Executive, By Law, We Mean Only That It Was Done By Them
According to Law; That Is, That They Merely Executed the Law.
Or, If We Say That The Word By Signifies By Authority Of, The Result
Will Still Be The Same; For Nothing can Be Done By Authority Of Law,
Except What The Law Itself Authorizes Or Directs To Be Done; That Is,
Nothing can Be Done By Authority Of Law, Except Simply To Carry The
Law Itself Into Execution. So Nothing could Be Done By Authority Of
The Sentence Of The Peers, Or By Authority Of "The Law Of The Land,"
Except What The Sentence Of The Peers, Or The Law Of The Land,
Themselves Authorized or Directed to Be Done; Nothing, In short, But
To Carry The Setence Of The Peers, Or The Law Of The Land, Themselves
Into Execution.
Doing a Thing by Law, Or According to Law, Is Only Carrying the Law
Into Execution. And Punishing a Man By, Or According to, The
Sentence Or Judgment Of His Peers, Is Only Carrying that Sentence Or
Judgment Into Execution.
If These Reasons Could Leave Any Doubt That The Word Per Is To Be
Translated according to, That Doubt Would Be Removed by The Terms
Of An Antecedent Guaranty For The Trial By Jury, Granted by The
Emperor Conrad, Of Germany, [17] Two Hundred years Before
Magna Carta. Blackstone Cites It As Follows: (3 Blackstone, 350.)
"Nemo Beneficium Suum Perdat, Nisi Secundum Consuetu-Dinem
Antecessorum Nostrorum, Et Judicium Parium Suorum." That Is, No
One Shall Lose His Estate, [18] Unless According to ("Secundum")
The Custom (Or Law) Of Our Ancestors, And (According to) The
Sentence (Or Judgment) Of His Peers.
The Evidence Is Therefore Conclusive That The Phrase Per Judicium
Parian Suorum Means According to The Sentence Of His Peers; Thus
Implying hat The Jury, And Not The Government, Are To Fix The
Sentence.
If Any Additional Proof Were Wanted that Juries Were To Fix The
Sentence, It Would Be Found In the Following provisions Of Magna
Carta, Viz.:
"A Freeman Shall Not Be Amerced for A Small Crime, (Delicto,) But
According to The Degree Of The Crime; And For A Great Crime In
Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 28Proportion To The Magnitude Of It, Saving to Him His Contenement;
[19] And After The Same Manner A Merchant, Saving to Him His
Merchandise. And A Villein Shall Be Amerced after The Same
Manner, Aving to Him His Waynage, [20] If He Fall Under Our Mercy;
And None Of The Aforesaid Amercements Shall Be Imposed, (Or
Assessed, Ponatur,) But By The Oath Of Honest Men Of The
Neighborhood. Earls And Barons Shall Not Be Amerced but By Their
Peers, And According to The Degree Of Their Crime." [21]
Pecuniary Punishments Were The Most Common Punishments At
That Day, And The Foregoing provisions Of Magna Carta Show That
The Amount Of Those Punishments Was To Be Fixed by The Jury.
Fines Went To The King, And Were A Source Of Revenue; And If The
Amounts Of The Fines Had Been Left To Be Fixed by The King, He
Would Have Had A Pecuniary Temptation To Impose Unreasonable
And Oppressive Ones. So, Also, In regard To Other Punishments Than
Fines. If It Were Left To The King to Fix The Punishment, He Might
Often Have Motives To Inflict Cruel And Oppressive Ones. As It Was
The Object Of The Trial By Jury To Protect The People Against All
Possible Oppression From The King, It Was Necessary That The Jury,
And Not The King, Should Fix The Punishments. [22]
"Legale."
The Word "Legale," In the Phrase "Per Legale Judicium Parium
Suorum,"Doubtless Means Two Things.1. That The Sentence Must Be
Given In a Legal Manner; That Is, By The Legal Number Of Jurors,
Legally Empanelled and Sworn To Try The Cause; And That They Give
Their Judgment Or Sentence After A Legal Trial, Both In form And
Substance, Has Been Had. 2. That The Sentence Shall Be For A Legal
Cause Or Offence. If, Therefore, A Jury Should Convict And Sentence A
Man, Either Without Giving him A Legal Trial, Or For An Act That Was
Not Really And Legally Criminal, The Sentence Itself Would Not Be
Legal; And Consequently This Clause Forbids The King to Carry Such A
Sentence Into Execution; For The Clause Guarantees That He Will
Execute No Judgment Or Sentence, Except It Be Legale Judicium,A
Legal Sentence. Whether A Sentence Be A Legal One, Would Have To
Be Ascertained by The King or His Judges, On Appeal, Or Might Be
Judged of Informally By The King himself.
The Word "Legale"Clearly Did Not Mean That The Judicium Parium
Suorum (Judgment Of His Peers) Should Be A Sentence Which Any
Law (Of The King) Should Require The Peers To Pronounce; For In that
Case The Sentence Would Not Be The Sentence Of The Peers, But Only
The Sentence Of The Law, (That Is, Of The King); And The Peers Would
Be Only A Mouthpiece Of The Law, (That Is, Of The King,) In uttering
It.
"Per Legem Terrae."
One Other Phrase Remains To Be Explained, Viz., "Per Legem Terrae,"
"By The Law Of The Land."
All Writers Agree That This Means The Common Law.Thus, Sir
Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 2 (The Language Of Magna Carta) Pg 29Matthew Hale Says:
"The Common Law Is Sometimes Called, By Way Of Eminence, Lex
Terrae,As In the Statute Of Magna Carta,Chap. 29, Where Certainly
The Common Law Is Principally Intended by Those Words, Aut Per
Legem Terrae;As Appears By The Exposition Thereof In several
Subsequent Statutes; And Particularly In the Statute Of 28 Edward
Iii., Chap. 3, Which Is But An Exposition And Explanation Of That
Statute. Sometimes It Is Called lex Angliae,As In the Statute Of
Merton, Cap. 9, "Olurnus Leqes Angliae Mutari,"&C;., (We Will That
The Laws Of England Be Not Changed). Sometimes It Is Called lex Et
Consuetudo Regni(The Law And Custom Of The Kingdom); As In all
Commissions Of Oyer And Terminer; And In the Statutes Of 18
Edward I., Cap. , And De Quo Warranto,And Divers Others. But Most
Commonly It Is Called the Common Law, Or The Common Law Of
England; As In the Statute Articuli Super Chartas,Cap. 15, In the
Statute 25 Edward Iii., Cap. 5, (4,) And Infinite More Records And
Statutes." 1 Hale'S History Of The Common Law, 128.
This Common Law, Or "Law Of The Land," The King was Sworn To
Maintain.This Fact Is Recognized by A Statute Made At Westminster,
In 1346, By Edward Iii., Which
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