An Essay On The Trial By Jury by Lysander Spooner (best love novels of all time TXT) ๐
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Subjects Placed The Weapon In His Hand." 1 Palgrave's Rise And
Progress Of The English Constitution, 274 7.
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.
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 63
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
Divided 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 The Verdict Of The Jury."
Same, Vol. 1, Ch. 12, P. 329.
Also, "Among The Gothic Nations Of Modern Europe, The Custom Of
Deciding Lawsuits By A Jury Seems To Have Prevailed Universally;
First In The Allodial Courts Of The County, Or Of The Hundred,
And Afterwards In The Baron-Courts Of Every Feudal Superior."
Same, Vol. 2, P. 296.
Palgrave Says That In Germany "The Graff (Gerefa, Sheriff) Placed
Himself In The Seat Of Judgment, And Gave The Charge To The
Assembled Free Echevins, Warning Them To Pronounce Judgment
According To Right And Justice." 2 Palgrave, 147.
Also, That, In Germany, "The Echevins Were Composed Of The
Villanage, Somewhat Obscured In Their Functions By The Learning
Of The Grave Civilian Who Was Associated To Them, And Somewhat
Limited By The Encroachments Of Modern Feudality; But They Were
Still Substantially The Judges Of The Court." Same, 148.
Palgrave Also Says, "Scotland, In Like Manner, Had The Laws Of
Burlaw, Or Birlaw, Which Were Made And Determined By The
Neighbors, Elected By Common Consent, In The Burlaw Or Birlaw
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 64Courts, Wherein Knowledge Was Taken Of Complaints Between
Neighbor And Neighbor, Which Men, So Chosen, Were Judges And
Arbitrators, And Called Birlaw Men." 1 Palgrave's Rise, &C;.,
P. 80.
But, In Order To Understand The Common Law Trial By Jury, As It
Existed Prior To Magna Carta, And As It, Was Guaranteed. By That
Instrument, It Is Perhaps Indispensable To Understand More Fully
The Nature Of The Courts In Which Juries Sat, And The Extent Of
The Powers Exercised By Juries In Those Courts. I Therefore Give
In A Note Extended Extracts, On These Points, From Stuart On The
Constitution Of England, And From Blackstone's Commentaries.
[20]
That All These Courts Were Mere Courts Of Conscience, In Which
The Juries Were Sole Judges, Administering Justice According To
Their Own Ideas Of It, Is Not Only Shown By The Extracts Already
Given, But Is Explicitly Acknowledged In The Following One, In
Which The Modern "Courts Of Conscience" Are Compared With The
Ancient Hundred And County Courts, And The Preference Given To
The Latter, On The Ground That The Duties Of The Jurors In The
One Case, And Of The Commissioners In The Other, Are The Same,
And That The Consciences Of A Jury Are A Safer And Purer
Tribunal Than The Consciences Of Individuals Specially Appointed,
And Holding Permanent Offices.
"But There Is One Species Of Courts Constituted By Act Of
Parliament, In The City Of London, And Other Trading And Populous
Districts, Which, In Their Proceedings, So Vary From The Course
Of The Common Law, That They Deserve A More Particular
Consideration. I Mean The Court Of Requests, Or Courts Of
Conscience, For The Recovery Of Small Debts. The First Of These
Was Established In London So Early As The Reign Of Henry Viii.,
By An Act Of Their Common Council; Which, However, Was Certainly
Insufficient For That Purpose, And Illegal, Till Confirmed By
Statute 3 Jac. I., Ch. 15, Which Has Since Been Explained And
Amended By Statute 14 Geo. Ii., Ch. 10. The Constitution Is This:
Two Aldermen And Four Commoners Sit Twice A Week To Hear All
Causes Of Debt Not Exceeding The Value Of Forty Shillings; Which
They Examine In A Summary Way, By The Oath Of The Parties Or
Other Witnesses, And Make Such Order Therein As Is Consonant To
Equity And Good Conscience.I * * * Divers Trading Towns And
Other Districts Have Obtained Acts Of Parliament, For
Establishing In Them Courts Of Conscience Upon Nearly The Same
Plan As That In The City Of London.
"The Anxious Desire That Has Been Shown To Obtain These Several
Acts, Proves Clearly That The Nation, Ingeneral, Is Truly
Sensible Of The Great Inconvenience Arising From The Disuse Of
The Ancient County And Hundred Courts, Wherein Causes Of This
Small Value Were Always Formerly Decided With Very Little Trouble
And Expense To The Parties. But It Is To Be Feared That The
General Remedy, Which Of Late Hath Been Principally Applied To
This Inconvenience, (The Erecting These New Jurisdictions,) May
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 Pg 65Itself Be Attended In Time With Very Ill Consequences; As The
Method Of Proceeding Therein Is Entirely In Derogation Of The
Common Law; And Their Large Discretionary Powers Create A Petty
Tyranny In A Set Of Standing Commissioners; And As The Disuse Of
The Trial By Jury May Tend To Estrange The Minds Of The People
From That Valuable Prerogative Of Englishmen, Which Has Already
Been More Than Sufficiently Excluded In Many Instances. How
Much Rather Is It To Be Wished That The Proceedings In The County
And Hundred Courts Could Be Again Revived, Without Burdening
The Freeholders With Too Frequent And Tedious Attendances; And
At The Same Time Removing The Delays That Have Insensibly Crept
Into Their Proceedings, And The Power That Either Party Has Of
Transferring At Pleasure Their Suits To The Courts At Westminster!
And We May, With Satisfaction, Observe, That This Experiment Has
Been Actually Tried, And Has Succeeded In The Populous County Of
Middlesex, Which Might Serve As An Example For Others. For By
Statute 23 Geo. Ii., Ch. 33, It Is Enacted:
1. That A Special County Court Shall Be Held At Least Once In A
Month, In Every Hundred Of The County Of Middlesex, By The County
Clerk.
2. That Twelve Freeholders Of That Hundred, Qualified To Serve On
Juries, And Struck By The Sheriff, Shall Be Summoned To Appear At
Such Court By Rotation; So As None Shall Be Summoned Oftener Than
Once A Year.
3. That In All Causes Not Exceeding The Value Of Forty Shillings,
The County Clerk And Twelve Suitors (Jurors) Shll Proceed In A
Summary Way, Examining The Parties And Witnesses On Oath,
Without The Formal Process Anciently Used; And Shall Make
Such Order Therein As They Shall Judge Agreeable To Conscience."
3 Blackstone, 81 83.
What Are These But Courts Of Conscience? And Yet Blackstone Tells
Us They Are A Revival Of The Ancient Hundred And County Courts.
And What Does This Fact Prove, But That The Ancient Common Law
Courts, In Which Juries Sat, Were Mere Courts Of Conscience?
It Is Perfectly Evident That In All These Courts The Jurors Were
The Judges, And Determined All Questions Of Law For Themselves;
Because The Only Alternative To That Supposition Is, That The
Jurors Took Their Law From Sheriffs, Bailiffs, And Stewards, Of
Which There Is Not The Least Evidence In History, Nor The Least
Probability In Reason. It Is Evident, Also, That They Judged
Independently Of The Laws Of The King, For The Reasons Before
Given, Viz., That The Authority Of The King Was Held In Very,
Little Esteem; And, Secondly, That The Laws Of The King (Not
Being Printed, And The People Being Unable To Read Them If They
Had Been Printed)
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