An Essay On The Trial By Jury by Lysander Spooner (free novel reading sites TXT) ๐
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Cab. Cyc., 60.
"The Bishop And The Earl Or, In his Absence, The Gerefa,
(Sheriff,) And Sometimes Both The Earl And The Gerefa, Presided
At The Schyre-Mote (County Court); The Gerefa (Sheriff) Usually
Alone Presided at The Mote (Meeting or Court) Of The Hundred. In
The Cities And Towns Which Were Not Within Any Peculiar
Jurisdiction, There Was Held, At Regular Stated intervals, A
Burgh Mote, (Borough Court,) For The Administration Of Justice,
At Which A Gerefa, Or A Magistrate Appointed by The King,
Presided." Spence'S Origin Of The Laws And Political
Institutions Of Modern Europe, P. 444.
"The Right Of The Plaintiff And Defendant, And Of The Prosecutor
And Criminal, To Challenge The Judices, (Judges.) Or Assessors
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 66[17] Appointed to Try The Cause In civil Matters, And To Decide
Upon The Guilt Or Innocence Of The Accused in criminal Matters,
Is Recognized in the Treatise Called the Laws Of Henry The First;
But I Cannot Discover, From The Anglo-Saxon Laws Or Histories,
That Before The Conquest The Parties Had Any General Right Of
Challege; Indeed, Had Such Right Existed, The Injunctions To All
Persons Standing in the Situation Of Judges (Jurors) To Do Right
According to Their Conscience, Would Scarcely Have Been So
Frequently And Anxiously Repeated." Spence, 456.
Hale Says:
"The Administration Of The Common Justice Of The Kingdom Seems
To Be Wholly Dispensed in the County Courts, Hundred courts, And
Courts-Baron; Except Some Of The Greater Crimes Reformed by The
Laws Of King henry I., And That Part Thereof Which Was Sometimes
Taken Up By The Justitiarius Angliae.
This Doubtless Bred great Inconvenience, Uncertainty, And Variety
In The Laws, Viz.:
"First, By The Ignorance Of The Judges, Which Were The
Freeholders Of The County.* *
"Thirdly, A Third Inconvenience Was, That All The Business Of Any
Moment Was Carried by Parties And Factions. For The Freeholders
Being generally The Judges, And Conversing one Among Another, And
Being as It Were The Chief Judges, Not Only Of The Fact, But Of
The Law; Every Man That Had A Suit There, Sped according as He
Could Make Parties." 1 Hale'S History Of The Common Law, P.
246.
"In All These Tribunals," (County Court, Hundred court, &C;..)
"The Judges Were The Free Tenants, Owing suit To The Court, And
Afterwards Called its Peers." 1 Lingard'S History Of England,
488.
Henry Calls The Twelve Jurors "Assessors," And Says:
"These Assessors, Who Were In reality Judges, Took A Solemn Oath,
That They Would Faithfully Discharge The Duties Of Their Office,
And Not Suffer An Innocent Man To Be Condemned, Nor Any Guilty
Person To Be Acquitted." 3 Henry'S History Of Great Britain,
346.
Tyrre11 Says:
"Alfred cantoned his Kingdom, First Into Trihings And Lathes, As
They Are Still Called in kent And Other Places, Consisting of
Three Or Four Hundreds; In which, The Freeholders Being judges,
Such Causes Were Brought As Could Not Be Determined in the
Hundred court." Tyrrell'S Introduction To The History Of
England, P. 80.
Of The Hundred court He Says:
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 67
"In This Court Anciently, One Of The Principal Inhabitants,
Called the Alderman, Together With The Barons Of The Hundred [18]
Id Est The Freeholders Was Judge." Ditto, P. 80.
Also He Says:
"By A Law Of Edward The Elder, 'Every Sheriff Shall Convene The
People Once A Month, And Do Equal Right To All, Putting an End To
Controversies At Times Appointed.'" Ditto, P. 86.
A Statute, Emphatically Termed the ' Grand Assize,' Enabled the
Defendant, If He Thought Proper, To Abide By The Testimony Of The
Twelve Good And Lawful Knights, Chosen By Four Others Of The
Vicinage, And Whose Oaths Gave A Final Decision To The Contested
Claim,." 1 Palgrave'S Rise And Progress Of The English
Commonwealth, 261.
"From The Moment When The Crown Became Accustomed to The
'Inquest,' A Restraint Was Imposed upon Every Branch Of The
Prerogative. The King could Never Be Informed of His Rights, But
Through The Medium Of The People. Every 'Extent' By Which He
Claimed the Profits And Advantages Resulting from The Casualties
Of Tenure, Every Process By Which He Repressed the Usurpations Of
The Baronage, Depended upon The 'Good Men And True' Who Were
Impaneled to 'Pass' Between The Subject And The Sovereign; And
The Thunder Of The Exchequer At Westminster Might Be Silenced by
The Honesty, The Firmness, Or The Obstinacy, Of One Sturdy Knight
Or Yeoman In the Distant Shire.
Taxation Was Controlled in the Same Manner By The Voice Of Those
Who Were Most Liable To Oppression. * * A Jury Was Impaneled to
Adjudge The Proportion Due To The Sovereign; And This Course Was
Not Essentially Varied, Even After The Right Of Granting aids To
The Crown Was Fully Acknowledged to Be Vested in the Parliament
Of The Realm. The People Taxed themselves; And The Collection Of
The Grants Was Checked and Controlled, And, Perhaps, In many
Instances Evaded, By These Virtual Representatives Of The
Community.
The Principle Of The Jury Was, Therefore, Not Confined to Its
Mere Application As A Mode Of Trying contested facts, Whether In
Civil Or Criminal Cases; And, Both In its Form And In its
Consequences, It Had A Very Material Influence Upon The General
Constitution Of The Realm. * *The Main-Spring of The Machinery Of
Remedial Justice Existed in the Franchise Of The Lower And Lowest
Orders Of The Political Hierarchy. Without The Suffrage Of The
Yeoman, The Burgess, And The Churl, The Sovereign Could Not
Exercise The Most Important And Most Essential Function Of
Royalty; From Them He Received the Power Of Life And Death; He
Could Not Wield The Sword Of Justice Until The Humblest Of His
Subjects Placed the Weapon In his Hand." 1 Palgrave'S Rise And
Progress Of The English Constitution, 274 7.
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 68
Coke Says,
"The Court Of The County Is No Court Of Record, [19]
And The Suitors Are The Judges Thereof." 4 Inst.) 266.
Also, "The Court Of The Hundred is No Court Of Record, And The
Suitors Be Thereof Judges." 4 Inst., 267.
Also, "The Court-Baron Is A Court Incident To Every Manor, And Is
Not Of Record, And The Suitors Be Thereof Judges." 4 Inst.,
268.
Also, "The Court Of Ancient Demesne Is In the Nature Of A
Court-Baron, Wherein The Suitors Are Judges, And Is No Court Of
Record." 4 Inst., 269.
Millar Says,
"Some Authors Have Thought That Jurymen Were Originally
Compurgators, Called by A Defendant To Swear That They
Believed him Innocent Of The Facts With Which He Was Charged. . .
But . . . Compurgators Were Merely Witnesses; Jurymen Were, In
Reality, Judges. The Former Were Called to Confirm The Oath Of
The Party By Swearing, According to Their Belief, That He Had
Told The Truth, (In His Oath Of Purgation;) The Latter Were
Appointed to Try, By Witnesses, And By All Other Means Of Proof,
Whether He Was Innocent Or Guilty. Juries Were Accustomed to
Ascertain The Truth Of Facts, By The Defendant'S Oath Of
Purgation, Together With That Of His Compurgators. . . Both Of
Them (Jurymen And Compurgators) Were Obliged to Swear That They
Would Tell Truth.
According to The Simple Idea Of Our Forefathers, Guilt Or Innocence
Was Regarded as A Mere Matter Of Fact; And It Was Thought That No
Man, Who Knew The Real Circumstances Of A Case, Could Be At A
Loss To Determine Whether The Culprit Ought To Be Condemned or
Acquitted." 1 Millar'S Hist. View Of Eng. Gov., Ch. 12, P. 332 - 4.
Also, "The Same Form Of Procedure, Which Took Place In the
Administration Of Justice Among The Vassals Of A Barony, Was
Gradually Extended to The Courts Eld In the Trading towns."
Same, P. 335.
Also, "The Same Regulation, Concerning the Distribution Of
Justice By The Intervention Of Juries, . . .Were Introduced into
The Baron Courts Of The King, As Into Those Of The Nobility, Or
Such Of His Subjects As Retained their Allodial Property."
Same, P. 337.
Also, "This Tribunal" (The Aula Regis, Or King'S Court, Afterwards
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 69Divided into The Courts Of King'S Bench, Common Pleas,
And Exchequer) "Was Properly The Ordinary Baron-Court Of The
King; And, Being in the Same Circumstances With The Baron Courts
Of The Nobility, It Was Under The Same Necessity Of Trying causes
By The Intervention Of A Jury." Same, Vol. 2, P. 292.
Speaking of The Times Of Edward The First, (1272 To 1307,) Millar
Says:
"What Is Called the Petty Jury Was Therefore Introduced into
These Tribunals, (The King'S Bench, The Common Pleas, And The
Exhequer,) As Well As Into Their Anxiliary Courts Employed to
Distribute Justice In the Circuits; And Was Thus Rendered
Essentially Necessary In determining causes Of Every Sort,
Whether Civil, Criminal, Or Fiscal." Same, Vol. 2, P. 293-4.
Also, "That This Form Of Trial (By Jury) Obtained universally In
All The Feudal Governments, As Well As In that Of Eng-1And, There
Can Be No Reason To Doubt. In france, In germany, And In other
European Countries, Where We Have Any Accounts Of The
Constitution And Procedure Of The Feudal Courts, It Appears That
Lawsuits Of Every Sort Concerning the Freemen Or Vassals Of A
Barony, Were Determined by The Pares Curiae (Peers Of The Court;)
And That The Judge Took Little More Upon Him Than To Regulate The
Method Of Proceeding, Or To Declare
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