An Essay On The Trial By Jury by Lysander Spooner (free novel reading sites TXT) ๐
- Author: Lysander Spooner
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Tenements, Or Hereditaments, To The Clear Yearly Value Of Four
Pounds At The Least." 27 Elizabeth, Ch. 6. (1585.)
In 1664-5 It Was Enacted "That All Jurors (Other Than Strangers
Upon Trials Per Medietatem Linquae) Who Are To Be Returned for The
Trials Of Issues Joined in any Of (His) Majesty'S Courts Of King'S
Bench, Common Pleas, Or The Exchequer, Or Before Justices Of
Assize, Nisi Prius, Oyer And Terminer, Gaol Delivery, Or General
Or Quarter Sessions Of The Peace From And After The Twentieth Day
Of April, Which Shall Be In the Year Of Our Lord One Thousand Six
Hundred and Sixty-Five, In any County Of This Realm Of England,
Shall Every Of Them Then Have, In their Own Name, Or In trust For
Them, Within The Same County, Twenty Pounds, By The Year, At
Least, Above Reprises, In their Own Or Their Wives Right, Of
Freehold Lands, Or Of Ancient Demesne, Or Of Rents In fee,
Fee-Tail, Or For Life. And That In every County Within The
Dominion Of Wales Every Such Juror Shall Then Have, Within The
Some, Eight Pounds By The Year, At The Least, Above Reprises, In
Manner Aforesaid. All Which Persons Having such Estate As
Aforesaid Are Hereby Enabled and Made Liable To Be Returned and
Serve As Jurors For The Trial Of Issues Before The Justices
Aforesaid, Any Law Or Statute To The Contrary In any Wise
Notwithstanding," 16 And 17 Charles Ii., Ch. 5. (1664-5,)
By A Statute Passed in 1692, Jurors In england Are To Have Landed
Estates Of The Value Of Ten Pounds A Year, And Jurors In wales To
Have Similar Estates Of The Realm Of Six Pounds A Year. 4 And 5
William And Mary, Ch. 24, Sec. 14, (1692,)
By The Same Statute, (Sec. 18,) Persons May Be Returned to Serve
Upon The Tales In any County Of England, Who Shall Have Within The
Same County, Five Pounds By The Year, Above Reprises, In the
Manner Aforesaid.
By St. 3 George Ii., Ch. 25, Sec. 10, 20, No One Is To Be A Juror
Chapter 6 (Juries Of The Present Day Illegal) Pg 151In London, Who Shall Not Be "An Householder Within The Said City,
And Have Lands, Tenements, Or Personal Estate, To The Value Of One
Hundred pounds."
By Another Statute, Applicable Only To The County Of Middlesex, It
Is Enacted, "That All Leaseholders, Upon Leases Where The Improved
Rents Or Value Shall Amount To Fifty Pounds Or Upwards Per Annum,
Over And Above All Ground Rents Or Other Reservations Payable By
Virtue Of The Said Leases, Shall Be Liable And Obliged to Serve
Upon Juries When They Shall Be Legally Summoned for That
Purpose.," 4 George Ii., Ch. 7, Sec, 3. (1731.)
[5] A Mark Was Thirteen Shillings And Four Pence.
[6] Suppose These Statutes, Instead Of Disfranchising all Whose
Freeholds Were Of Less Than The Standard Value Fixed by The
Statutes, Had Disfranchised all Whose Freeholds Were Of Greater
Value Than The Same Standard Would Anybody Ever Have Doubted
That Such Legislation Was Inconsistent With The English
Constitution; Or That It Amounted to An Entire Abolition Of The
Trial By Jury? Certainly Not. Yet It Was As Clearly Inconsistent
With The Common Law, Or The English Constitution, To Disfranchise
Those Whose Freeholds Fell Below Any Arbitrary Standard Fixed by
The Government, As It Would Have Been To Disfranchise All Whose
Freeholds Rose Above That Standard.
[7] Lingard Says: "These Compurgators Or Jurors * * Were
Sometimes * * Drawn By Lot." 1 Lingard'S History Of England,
P. 300.
] Chapter 4, P. 120, Note.
[9] Editor'S Note: (The Following was Not In spooner'S Addition)
With The Ratification Of Article Xix Of Amendment To The
Constitution For The United states, August 20, 1920, Women Were
Fully Enfranchised with All Rights Of Voting and Jury Service In all States
Of The Union.
Chapter 7 (Illegal Judges) Pg 152
It Is A Principle Of Magna Carta, And Therefore Of The Trial By
Jury, (For All Parts Of Magna Carta Must Be Construed together,)
That No Judge Or Other Officer Appointed by The King, Shall
Preside In jury Trials, In criminal Cases, Or "Pleas Of The
Crown."
This Provision Is Contained in the Great Charters Of Both John
And Henry, And Is Second In importance Only To The Provision
Guaranteeing the Trial By Jury, Of Which It Is Really A Part.
Consequently, Without The Observance Of This Prohibition, There
Can Be No Genuine Or Legal That Is, Common Law Trial By Jury.
At The Common Law, All Officers Who Held Jury Trials, Whether In
Civil Or Criminal Cases, Were Chosen By The People. [1]
But Previous To Magna Carta, The Kings Had Adapted the Practice
Of Sending officers Of Their Own Appointment, Called justices,
Into The Counties, To Hold Jury Trials In some Cases; And Magna
Carta Authorizes This Practice To Be Continued so Far As It
Relates To Three Kinds Of Civil Actions, To Wit: "Novel
Disseisin, Mort De Ancestor, And Darrein Presentment;" [2] But
Specially Forbids Its Being extended to Criminal Cases, Or Pleas
Of The Crown.
This Prohibition Is In these Words:
"Nullus Vicecomes, Constabularius, Coronator, Vel Alii Balivi
Nostri, Teneant Placita Coronae Nostrae." (No Sheriff, Constable,
Coroner, Or Other Our Bailiffs, Shall Hold Pleas Of Our Crown.)
John'S Charter, Ch. 53, Henry'S Ditto, Ch. 17.
Some Persons Seem To Have Supposed that This Was A Prohibition
Merely Upon Officers Bearing the Specific Names Of "Sheriffs,
Constables, Coroners And Bailiffs," To Hold Criminal Trials. But
Such Is Not The Meaning. If It Were, The Name Could Be Changed,
And The Thing retained; And Thus The Prohibition Be Evaded. The
Prohibition Applies (As Will Presently Be Seen) To All Officers
Of The King whatsoever; And It Sets Up A Distinction Between
Officers Of The King, ("Our Bailiffs,") And Officers Chosen By
The People.
The Prohibition Upon The King'S Justices Sitting in criminal
Trials, Is Included in the Words "Vel Alii Balivi Nostri," (Or
Other Our Bailiffs.) The Word Bailif Was Anciently A Sort Of
General Name For Judicial Officers And Persons Employed in and
About The Administration Of Justice. In modern Times Its Use, As
Applied to The Higher Grades Of Judicial Officers, Has Been
Chapter 7 (Illegal Judges) Pg 153Superseded by Other Words; And It Therefore Now, More Generally,
If Not Universally, Signifies An Executive Or Police Officer, A
Servant Of Courts, Rather Than One Whose Functions Are Purely
Judicial.
The Word Is A French Word, Brought Into England By The Normans.
Coke Says, "Baylife Is A French Word, And Signifies An Officer
Concerned in the Administration Of Justice Of A Certain Province;
And Because A Sheriff Hath An Office Concerning the
Administration Of Justice Within His County, Or Bailiwick,
Therefore Be Called his County Baliva Sua, (His Bailiwick.)
"I Have Heard Great Question Made What The True Exposition Of
This Word Balivus Is. In the Statute Of Magna Carta, Cap. 28, The
Letter Of That Statute Is, Nullus Balivus De Eaetero Ponat
Aliqnem Ad Legem Manifestam Nec Ad Juramentum Simplici Loquela
Sua Sine Testibus Fidelibus Ad Hoc Inductis." (No Bailiff From
Henceforth Shall Put Any One To His Open Law, Nor To An Oath {Of
Self-Exculpation) Upon His Own Simple Accusation, Or Complaint,
Without Faithful Witnesses Brought In for The Same.) "And Some
Have Said That Balivus In this Statute Signifieth Any Judge; For
The Law Must Be Waged and Made Before The Judge. And This Statute
(Say They) Extends To The Courts Of Common Pleas, King'S Bench,
&C;., For They Must Bring with Them Fideles Testes, (Faithful
Witnesses,) &C;., And So Hath Been The Usage To This Day." 1
Coke'S Inst., 168 B.
Coke Makes Various References, In his Margin To Bracton, Fleta,
And Other Authorities, Which I Have Not Examined, But Which, I
Presume, Support The Opinion Expressed in this Quotation.
Coke Also, In another Place, Under The Head Of The Chapter Just
Cited from Magna Carta, That "No Bailiff Shall Put Any Man To His
Open Law," &C;., Gives The Following commentary Upon It, From The
Mirror Of Justices, From Which It Appears That In the Time Of
Edward I., (1272 To 1307,) This Word Balivus Was Understood To
Include All Judicial, As Well As All Other, Officers Of The King.
The Mirror Says: "The Point Which Forbiddeth That No Bailiff Put
A Freeman To His Oath Without Suit, Is To Be Understood In this
Manner, That No Justice, No Minister Of The King, Nor Other
Steward, Nor Bailiff, Have Power To Make A Freeman Make Oath, (Of
Self-Exculpation,) Without The King'S Command, [3] Nor Receive
Any Plaint, Without Witnesses Present Who Testify The Plaint To
Be True." Mirror Of Justices, Ch. 5, Sec. 2, P. 257.
Coke Quotes This Commentary, (In The Original French,) And Then
Endorses It In these Words:
"By This It Appeareth, That Under This Word Balivus, In this Act,
Is Comprehended every Justice, Minister Of The King, Steward, And
Bailiff." 2 Inst., 44.
Chapter 7 (Illegal Judges) Pg 154
Coke Also, In his Commentary Upon This Very Chapter Of Magna
Carta, That Provides That "No Sheriff; Constable; Coroner, Or
Other Our Bailiffs, Shall Hold Pleas Of Our Crown," Expresses The
Opinion That It "Is A General Law," (That Is, Applicable To All
Officers Of The King,) " By Reason Of The Words Vel Alii Balivi
Nostri, (Or Other Our Bailiffs,) Under Which Words Are
Comprehended all Judges Or Justices Of Any Courts Of Justice.
"And He Cites A Decision In the King'S Bench, In the 17Th Year Of
Edward I., (1289,) As Authority; Which Decision He Calls "A
Notable And Leading judgment." 2 Inst., 30 1.
And Yet Coke, In flat Contradiction Of This Decision, Which He
Quotes With Such Emphasis And Approbation, And In flat
Contradiction Also Of The Definition He Repeatedly Gives Of The
Word Balivus Showing that It Embraced all Ministers Of The King
Whatsoever, Whether High Or Low, Judicial Or Executive,
Fabricates An
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