An Essay On The Trial By Jury by Lysander Spooner (free novel reading sites TXT) ๐
- Author: Lysander Spooner
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Fit To Select As Being the Most Reliable Instruments For Its
Purposes Of Oppression Towards The Rest. And The Selection Was
Made On The Same Principle, On Which Tyrannical Governments
Generally Select Their Supporters, Viz., That Of Conciliating
Those Who Would Be Most Dangerous As Enemies, And Most
Powerful As Friends That Is, The Wealthy. [6]
These Restrictions, Or Indeed any One Of Them, Of The Right Of
Eligibility As Jurors, Was, In principle, A Complete Abolition Of
The English Constitution; Or, At Least, Of Its Most Vital And
Valuable Part. It Was, In principle, An Assertion Of A Right, On
The Part Of The Government, To Select The Individuals Who Were To
Determine The Authority Of Its Own Laws, And The Extent Of Its Own
Powers. It Was, Therefore, In effect, The Assertion Of A Right, On
The Part Of The Government Itself, To Determine Its Own Powers,
And The Authority Of Its Own Legislation, Over The People; And A
Denial Of All Right, On The Part Of The People, To Judge Of Or
Determine Their Own Liberties Against The Government. It Was,
Therefore, In reality, A Declaration Of Entire Absolutism On The
Part Of The Government. It Was An Act As Purely Despotic, In
Principle, As Would Have Been The Express Abolition Of All Juries
Whatsoever. By "The Law Of The Land," Which The Kings Were Sworn
To Maintain, Every Free Adult Male British Subject Was Eligible To
The Jury Box, With Full Power To Exercise His Own Judgment As To
The Authority And Obligation Of Every Statute Of The King, Which
Might Come Before Him. But The Principle Of These Statutes (Fixing
The Qualifications Of Jurors) Is, That Nobody Is To Sit In
Judgment Upon The Acts Or Legislation Of The King, Or The
Government, Except Those Whom The Government Itself Shall Select
For That Purpose. A More Complete Subversion Of The Essential
Principles Of The English Constitution Could Not Be Devised.
The Juries Of England Are Illegal For Another Reason, Viz., That
The Statutes Cited require The Jurors (Except In london And A Few
Other Places) To Be Freeholders. All The Other Free British
Subjects Are Excluded; Whereas, At Common Law, All Such Subjects
Are Eligible To Sit In juries, Whether They Be Freeholders Or Not.
Chapter 6 (Juries Of The Present Day Illegal) Pg 144
It Is True, The Ancient Common Law Required the Jurors To Be
Freeholders; But The Term Freeholder No Longer Expresses The Same
Idea That It Did In the Ancient Common Law; Because No Land Is Now
Holden In england On The Same Principle, Or By The Same Tenure, As
That On Which All The Land Was Held In the Early Times Of The
Common Law.
As Has Heretofore Been Mentioned, In the Early Times Of The
Common Law The Land Was Considered the Property Of The State;
And Was All Holden By The Tenants, So Called, (That Is, Holders,)
On The Condition Of Their Rendering certain Military And Civil Services
To The State, (Or To The King as The Representative Of The State,)
Under The Name Of Rents. Those Who Held Lands On These Terms
Were Called free Tenants, That Is, Free Holders Meaning free Persons,
Or Members Of The State, Holding lands To Distinguish Them From
Villeins, Or Serfs, Who Were Not Members Of The State, But Held
Their Lands By A More Servile Tenure, And Also To Distinguish Them
From Persons Of Foreign Birth, Outlaws, And All Other Persons, Who
Were Not Members Of The State.
Every Freeborn Adult Male Englishman (Who Had Not Lost His Civil
Right" By Crime Or Otherwise) Was Entitled to Land Of Right; That
Is, By Virtue Of His Civil Freedom, Or Membership Of The Body
Politic. Every Member Of The State Was Therefore A Freeholder; And
Every Freeholder Was A Member Of The State. And The Members Of
The State Were Therefore Called freeholders. But What Is Material To
Be Observed, Is, That A Man'S Right To Land Was An Incident To His
Civil Freedom; Not His Civil Freedom An Incident To His Right To
Land. He Was A Freeholder Because He Was A Freeborn Member Of
The State; And Not A Freeborn Member Of The State Because He Was A
Freeholder; For This Last Would Be An Absurdity.
As The Tenures Of Lands Changed, The Term Freeholder Lost Its
Original Significance, And No Longer Described a Man Who Held Land
Of The State By Virtue Of His Civil Freedom, But Only One Who Held
It In fee-Simple That Is, Free Of Any Liability To Military Or
Civil Services. But The Government, In fixing the Qualifications
Of Jurors, Has Adhered to The Term Freeholder After That Term Has
Ceased to Express The Thing originally Designated by It.
The Principle, Then, Of The Common Law, Was, That Every Freeman,
Or Freeborn Male Englishman, Of Adult Age, &C;., Was Eligible To
Sit In juries, By Virtue Of His Civil Freedom, Or His Being a
Member Of The State, Or Body Politic. Rut The Principle Of The
Present English Statutes Is, That A Man Shall Have A Right To Sit
In Juries Because He Owns Lands In fee-Simple. At The Common Law
A Man Was Born To The Right To Sit In juries. By The Present
Statutes He Buys That Right When He Buys His Land. And Thus This,
The Greatest Of All The Political Rights Of An Englishman, Has
Become A Mere Article Of Merchandise; A Thing that Is Bought And
Sold In the Market For What It Will Bring.
Of Course, There Can Be No Legality In such Juries As These; But
Only In juries To Which Every Free Or Natural Born Adult Male
Chapter 6 (Juries Of The Present Day Illegal) Pg 145Englishman Is Eligible.
The Second Essential Principle Of The Common Law, Controlling the
Selection Of Jurors, Is, That When The Selection Of The Actual
Jurors Comes To Be Made, (From The Whole Body Of Male Adults,)
That Selection Shall Be Made In some Mode That Excludes The
Possibility Of Choice On The Part Of The Government.
Of Course, This Principle Forbids The Selection To Be Made By Any
Officer Of The Government.
There Seem To Have Been At Least Three Modes Of Selecting the
Jurors, At The Common Law. 1. By Lot. [7] 2. Two Knights, Or Other
Freeholders, Were Appointed, (Probably By The Sheriff,) To Select
The Jurors. 3. By The Sheriff, Bailiff, Or Other Person, Who Held
The Court, Or Rather Acted as Its Ministerial Officer. Probably
The Latter Mode May Have Been The Most Common, Although There
May Be Some Doubt On This Point.
At The Common Law The Sheriff'S, Bailiffs, And Other Officers Were
Chosen By The People, Instead Of Being appointed by The King. (4
Blackstone, 413. Introduction To Gilbert'S History Of The Common
Pleas, P. 2; Note, And P. 4.) This Has Been Shown In a Former
Chapter. [8] At Common Law, Therefore, Jurors Selected by These
Officers Were Legally Selected, So Far As The Principle Now Under
Discussion Is Concerned; That Is, They Were Not Selected by Any
Officer Who Was Dependent On The Government.
But In the Year 1315, One Hundred years After Magna Carta, The
Choice Of Sheriff'S Was Taken From The People, And It Was Enacted:
"That The Sheriffs Shall Henceforth Be Assigned by The Chancellor,
Treasurer, Barons Of The Exchequer, And By The Justices. And In
The Absence Of The Chancellor, By The Treasurer, Barons And
Justices." 9 Edward Ii., St. 2. (1315.)
These Officers, Who Appointed the Sheriffs, Were Themselves
Appointed by The King, And Held Their Offices During his Pleasure.
Their Appointment Of Sheriffs Was, Therefore, Equivalent To An
Appointment By The King himself. And The Sheriffs, Thus Appointed,
Held Their Offices Only During the Pleasure Of The King, And Were
Of Course Mere Tools Of The King; And Their Selection Of Jurors
Was Really A Selection By The King himself. In this Manner The
King usurped the Selection Of The Jurors Who Were To Sit In
Judgment Upon His Own Laws.
Here, Then, Was Another Usurpation, By Which The Common Law Trial
By Jury Was Destroyed, So Far As Related to The County Courts, In
Which The Sheriff'S Presided, And Which Were The Most Important
Courts Of The Kingdom. From This Cause Alone, If There Were No
Other, There Has Not Been A Legal Jury In a County Court In
England, For More Than Five Hundred years.
In Nearly Or Quite All The States Of The United states The Juries
Chapter 6 (Juries Of The Present Day Illegal) Pg 146Are Illegal, For One Or The Other Of The Same Reasons That Make
The Juries In england Illegal.
In Order That The Juries In the United states May Be Legal That
Is, In accordance With The Principles Of The Common Law It Is
Necessary That Every Adult Male Member Of The State Should Have
His Name In the Jury Box, Or Be Eligible As A Juror. Yet This Is
The Case In hardly A Single State.
In New Jersey, Maryland, North Carolina, Tennessee, And
Mississippi, The Jurors Are Required to Be Freeholders. But This
Requirement Is Illegal, For The Reason That The Term Freeholder,
In This Country, Has No Meaning analogous To The Meaning it Had In
The Ancient Common Law.
In Arkansas, Missouri, Indiana, And Alabama, Jurors Are Required
To Be "Freeholders Or Householders." Each Of These Requirements Is
Illegal.
In Florida, They Are Required to Be "Householders."
In Connecticut, Maine, Ohio, And Georgia, Jurors Are Required to
Have The Qualifications Of "Electors."
In Virginia, They Are Required to Have A Property Qualification Of
One Hundred dollars.
In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio,
Indiana, Michigan, And Wisconsin, Certain Civil Authorities Of The
Towns, Cities, And Counties Are Authorized to Select, Once In one,
Two, Or Three Years, A Certain Number Of The People A Small
Number Compared with The Whole From Whom Jurors Are To Be
Taken
When Wanted; Thus Disfranchising all Except, The Few Thus
Selected.
In Maine And Vermont, The Inhabitants, By Vote In town Meeting,
Have A Veto Upon The Jurors Selected by The Authorities Of The
Town.
In Massachusetts, The Inhabitants, By Vote In town Meeting, Can
Strike Out Any Names Inserted by The Authorities, And Insert
Others; Thus Making jurors Elective By The People, And, Of Course,
Representatives Only Of A Majority Of The People.
In Illinois, The Jurors Are Selected, For Each Term Of Court, By
The County Commissioners.
In North Carolina, "The Courts Of Pleas And Quarter Sessions Shall
Select The Names Of Such Persons Only As Are Freeholders, And As
Are Well Qualified to Act As Jurors, &C;.; Thus Giving the Courts
Power To Pack The Juries." (Revised statutes, 147.)
In Arkansas,
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