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

Of Punishment May Not Have Been Fixed By

Legem Terrae,  The Common Law,  Instead Of Its Being Fixed By The

Jury.

 

I Think We Have No Evidence Whatever That,  At The Time Of Magna

Carta,  Or Indeed At Any Other Time,  Lex Terrae,  The Common Law,

Fixed The Punishment In Cases Where The Question Of Guilt Was Tried

By A Jury; Or,  Indeed,  That It Did In Any Other Case. Doubtless Certain

Punishments Were Common And Usual For Certain Offences; But I Do

Not Think It Can Be Shown That The Common Law,   The  Lex Terrae, 

Which The King Was Sworn To Maintain,  Required Any One Specific

Punishment,  Or Any Precise Amount Of Punishment,  For Any One

Specific Offence. If Such A Thing Be Claimed,  It Must Be Shown,  For

It Cannot Be Presumed. In Fact,  The Contrary Must Be Presumed,

Because,  In The Nature Of Things,  The Amount Of Punishment Proper

To Be Inflicted On Any Particular Case,  Is A Matter Requiring The

Exercise Of Discretion At The Time,  In Order To Adapt It To The Moral

Quality Of The Offence,  Which Is Different In Each Case,  Varying With

The Mental And Moral Constitutions Of The Offenders,  And The

Circumstances Of Temptation Or Provocation. And Magna Carta

Recognizes This Principle Distinctly,  As Has Before Been Shown,  In

Providing That Freemen,  Merchants,  And Villeins,  "Shall Not Be

Amerced For A Small Crime,  But According To The Degree Of The

Crime; And For A Great Crime In Proportion To The Magnitude Of It,"

And That "None Of The Aforesaid Amercements Shall Be Imposed (Or

Assessed) But By The Oaths Of Honest Men Of The Neighborhood;"

And That "Earl And Barons Shall Not Be Amerced But By Their Peers,

And According To The Quality Of The Offence."

 

All This Implies That The Moral Quality Of The Offence Was To Be

Judged Of At The Rial,  And That The Punishment Was To Be Fixed By

The Discretion Of The Peers,  Or Jury,  And Not By Any Such Unvarying

Rule As A Common Law Rule Would Be.

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 27

 

I Think,  Therefore,  It Must Be Conceded That,  In All Cases,  Tried By A

Jury,  Magna Carta Intended That The Punishment Should Be Fixed By

The Jury,  And Not By The Common Law,  For These Several Reasons.

 

1. It Is Uncertain Whether The Common Law Fixed The Punishment Of

Any Offence Whatever.

 

2. The Words  "Per Judicium Parium Suorum," According To The

Sentence Of His Peers,   Imply That The Jury Fixed The Sentence In

Some  Cases Tried By Them; And If They Fixed The Sentence In Some

Cases,  It Must Be Presumed They Did In All,  Unless The Contrary Be

Clearly Shown.

 

3. The Express Provisions Of Magna Carta,  Before Adverted To,  That

No Amercements,  Or Fines,  Should Be Imposed Upon. Freemen,

Merchants,  Or Villeins,  "But By The Oath Of Honest Men Of The

Neighborhood," And "According To The Degree Of The Crime," And

That "Earls And Barons Shout Not Be Amerced But By Their Peers,  And

According To The Quality Of The Offence,"  Proves That,  At Least,  There

Was No Common Law Fixing The Amount Of  Fines,  Or,  If There Were,

That It Was To Be No Longer In Force. And If There Was No Common

Law Fixing The Amount Of Fines,  Or If It Was To Be No Longer In Force,

It Is Reasonable To Infer,  (In The Absence Of All Evidence To The

Contrary,) Either That The Common Law Did Not Fix The Amount Of

Any Other Punishment,  Or That It Was To Be No Longer In Force For

That Purpose. [25]

 

Under The Saxon Laws,  Fines,  Payable To The Injured Party,  Seem To

Have Been The Common Punishments For All Offences. Even Murder

Was Punishable By A Fine Payable To The Relatives Of The Deceased.

The Murder Of The King Even Was Punishable By Fine. When A

Criminal Was Unable To Pay His One,  His Relatives Often Paid It For

Him. But If It Were Not Paid,  He Was Put Out Of The Protection Of The

Law,  And The Injured Parties,  (Or,In The Case Of Murder,  The Kindred

Of The Deceased,)Were Allowed To Inflict Such Punishment As They

Pleased. And If The Relatives Of The Criminal Protected Him,  It Was

Lawful To Take Vengeance On Them Also. Afterwards The Custom

Grew Up Of Exacting Fines Also To The King As A Punishment For

Offences.  [26]

 

And This Latter Was,  Doubtless,  The Usual Punishment At The Time Of

Magna Carta,  As Is Evidenced By The Fact That For Many Years

Immediately Following Magna Carta,  Nearly Or Quite All Statutes

That Prescribed Any Punishment At All,  Prescribed That The Offender

Should "Be Grievously  Amerced," Or "Pay A Great Fine To The King,"

Or A "Grievous Ransom,"     With The Alternative In Some Cases

(Perhaps Understood In All) Of Imprisonment,  Banishment,  Or

Outlawry,  In Case Of Non-Payment. [27]

 

Judging,  Therefore,  From The Special Provisions In Magna Carta,

Requiring Fines,  Or Amercements,  To Be Imposed Only By Juries,

(Without Mentioning Any Other Punishments;) Judging,  Also,  From

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 28

The Statutes Which Immediately Followed Magna Carta,  It Is

Probable That,  The Saxon Custom Of Punishing All,  Or Nearly All,

Offences By Fines,  (With The Alternative To The Criminal Of Being

Imprisoned,  Banished,  Or Outlawed,  And Exposed To Private

Vengeance,  In Case Of Non-Payment,) Continued Until The Time Of

Magna Carta; And That In Providing Expressly That Fines Should Be

Fixed By The Juries,  Magna Carta Provided For Nearly Or Quite All

The Punishments That Were Expected To Be Inflicted; That If There

Were To Be Any Others,  They Were To Be Fixed By The Juries; And

Consequently That Nothing Was Left To Be Fixed By "Legem Terrae."

But Whether The Common Law Fixed The Punishment Of Any

Offences,  Or Not,  Is A Matter Of Little Or No Practical Importance At

This Day; Because We Have No Idea Of Going Back To Any Common

Law Punishments Of Six Hundred Years Ago,  If,  Indeed,  There Were

Any Such At That Time. It Is Enough For Us To Know   And This Is What

Is Material For Us Know   That The Jury Fixed The Punishments,  In All

Cases,  Unless They Were Fixed By The Common Law; That Magna

Carta Allowed No Punishments To Be Prescribed By Statute   That Is,

By The Legislative Power   Nor In Any Other Manner By The King,  Or

His Judges,  In Any Case Whatever; And,  Consequently,  That All

Statutes Prescribing Particular Punishmnts For Particular Offences,

Or Giving The King's Judges Any Authority To Fix Punishments,  Were

Void.

 

If The Power To Fix Punishments Had Been Left In The Hands Of The

King,  It Would Have Given Him A Power Of Oppression,  Which Was

Liable To Be Greatly Abused; Which There Was No Occasion To Leave

With Him; And Which Would Have Been Incongruous With The Whole

Object Of This Chapter Of Magna Carta; Which Object Was To Take All

Discretionary Or Arbitrary Power Over Individuals Entirely Out Of The

Hands Of The King,  And His Laws,  And Entrust It Only To The Common

Law,  And The Peers,  Or Jury   That Is,  The People. What Lex Terrae

Did Authorize.

 

But Here The Question Arises,  What Then Did Legem Terrae" Authorize

The King,  (That Is,  The Government,) To Do In The Case Of An Accused

Person,  If It Neither Authorized Any Other Trial Than That By Jury,  Nor

Any Other Punishments Than Those Fixed By Juries?

 

The Answer Is,  That,  Owing To The Darkness Of History On The Point,

It Is Probably Wholly Impossible,  At This Day,  To State,  With Any

Certainty Or Precision,  Anything Whatever That The Legem Terrae Of

Magna Carta Did Authorize The King,  (That Is,  The Government,) To

Do,  (If,  Indeed,  It Authorized Him To Do Anything,) In The Case Of

Criminals,  Other Than To Have Them,  Tried And Sentenced By Their

Peers,  For Common Law Crimes; And To Carry That Sentence Into

Execution.

 

The Trial By Jury Was A Part Of Legem Terrae,  And We Have The Means

Of Knowing What The Trial By Jury Was. The Fact That The Jury Were

To Fix The Sentence,  Implies That They Were To Try The Accused;

Otherwise They Could Not Know What Sentence,  Or Whether Any

Sentence,  Ought To Be Inflicted Upon Him. Hence It Follows That The

Jury Were To Judge Of Everything Involved In The Trial; That Is,  They

Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 29

Were To Judge Of The Nature Of The Offence,  Of The Admissibility And

Weight Of Testimony,  And Of Everything Else Whatsoever That Was Of

The Essence Of The Trial. If Anything Whatever Could Be Dictated To

Them,  Either Of Law Or Evidence,  The Sentence Would Not Be Theirs,

But Would Be Dictated To Them By The Power That Dictated To Them

The Law Or Evidence. The Trial Nd Sentence,  Then,  Were Wholly In The

Hands Of The Jury.

 

We Also Have Sufficient Evidence Of The Nature Of The Oath

Administered To Jurors In Criminal Cases. It Was Simply,  That They

Would Neither Convict The Innocent,  Nor Acquit The Guilty. This Was

The Oath In The Saxon Times,  And Probably Continued To Be Until

Magna Carta.

 

We Also Know That,  In Case Of Conviction,  The Sentence Of The Jury

Was Not Necessarily Final; That The Accused Had The Right Of Appeal

To The King And His Judges,  And To Demand Either A New Trial,  Or An

Acquittal,  If The Trial Or Conviction Had Been Against Law. So Much, 

Therefore,  Of The Legem Terrae Of Magna Carta,  We Know With

Reasonable Certainty.

 

We Also Know That Magna Carta Provides That "No Bailiff (Balivus)

Shall Hereafter Put Any Man To His Law,  (Put Him On Trial,) On His

Single Testimony,  Without Credible Witnesses Brought To Support It."

Coke Thinks "That Under This Word Balivus,  In This Act,  Is

Comprehended Every Justice,  Minister Of The King,  Steward Of The

King,  Steward And Bailiff." (2 Inst. 44.) And In Support Of This Idea

He Quotes From A Very Ancient Law Book,  Called The Mirror Of

Justices,  Written In The Time Of Edward I.,  Within A Century After

Magna Carta. But Whether This Were Really A Common Law

Principle,  Or Whether The Provision Grew Out Of That Jealousy Of The

Government Which,  At The Time Of Magna Carta,  Had Reached Its

Height,  Cannot Perhaps Now Be Determined.

 

We Also Know That,  By Magna Carta,  Amercements,  Or Fines,  Could

Not Be Imposed To The Ruin Of The Criminal; That,  In The Case Of A

Freeman,