An Essay On The Trial By Jury by Lysander Spooner (free novel reading sites TXT) ๐
- Author: Lysander Spooner
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Of Magna Carta, And Pretends That After All It Only Required that
Felonies Should He Tried before The King'S Justices, On Account
Of Their Superior Iearning; And That It Permitted all Lesser
Offenses To Be Tried before Inferior Officers, (Meaning of Course
The King'S Inferior Officers.) 2 Inst., 30.
And Thus This Chapter Of Magna Carta, Which, According to His Own
Definition Of The Word Balivus, Applies To All Officers Of The
King; And Which, According to The Common And True Definition Of
The Term "Pleas Of The Crown," Applies To All Criminal Cases
Without Distinction, And Which, Therefore, Forbids Any Officer Or
Minister Of The King to Preside In a Jury Trial In any Criminal
Case Whatsoever, He Coolly And Gratuitously Interprets Into A
Mere Senseless Provision For Simply Restricting the Discretion Of
The King in giving names To His Own Officers Who Should Preside
At The Trials Of Particular Offences; As If The King, Who Made
And Unmade All His Officers By A Word, Could Not Defeat The Whole
Object Of The Prohibition, By Appointing such Individuals As He
Pleased, To Try Such Causes As He Pleased, And Calling them By
Such Names As He Pleased, If He Were But Permitted to Appoint And
Name Such Officers At All; And As If It Were Of The Least
Importance What Name An Officer Bore, Whom The King might
Appoint To A Particular Duty. [4]
Coke Evidently Gives This Interpretation Solely Because, As He
Was Giving a General Commentary On Magna Carta, He Was Bound
To
Give Some Interpretation Or Other To Every Chapter Of It; And For
This Chapter He Could Invent, Or Fabricate, (For It Is A Sheer
Fabrication,) No Interpretation Better Suited to His Purpose Than
This. It Seems Never To Have Entered his Mind, (Or If It Did, He
Intended that It Should Never Enter The Mind Of Anybody Else,)
That The Object Of The Chapter Could Be To Deprive The King of
The Power Of Putting his Creatures Into Criminal Courts, To Pack,
Cheat, And Browbeat Juries, And Thus Maintain His Authority By
Procuring the Conviction Of Those Who Should Transgress His Laws,
Or Incur His Displeasure.
Chapter 7 (Illegal Judges) Pg 155
This Example Of Coke Tends To Show How Utterly Blind, Or How
Utterly Corrupt, English Judges, (Dependent Upon The Crown And
The Legislature), Have Been In regard To Everything in magna
Carta, That Went To Secure The Liberties Of The People, Or Limit
The Power Of The Government.
Coke'S Interpretation Of This Chapter Of Magna Carta Is Of A
Piece With His Absurd And Gratuitous Interpretation Of The Words
"Nec Super Eum Ibimus, Nec Super Eum Mittemus," Which Was
Pointed
Out In a Former Article, And By Which He Attempted to Give A
Judicial Power To The King and His Judges, Where Magna Carta Had
Given It Only To A Jury. It Is Also Of A Piece With His Pretence
That There Was A Difference Between Fine And Amercement, And That
Fines Might Be Imposed by The King, And That Juries Were Required
Only For Fixing amercements.
These Are Some Of The Innumerable Frauds By Which The English
People Have Been Cheated out Of The Trial By Jury.
Ex Uno Disce Omnes. From One Judge Learn The Characters Of All.
[6]
I Give In the Note Additional And Abundant Authorities For The
Meaning ascribed to The Word Bailiff. The Importance Of The
Principle Involved will Be A Sufficient Excuse For Such An
Accumulation Of Authorities As Would Otherwise Be Tedious And
Perhaps Unnecessary. [7]
The Foregoing interpretation Of The Chapter Of Magna Carta Now
Under Discussion, Is Corroborated by Another Chapter Of Magna
Carta, Which Specially Provides That The King'S Justices Shall
"Go Through Every County" To "Take The Assizes" (Hold Jury
Trials) In three Kinds Of Civil Actions, To Wit, "Novel
Disseisin, Mort De Ancestor, And Darrein Presentment;" But Makes
No Mention Whatever Of Their Holding jury Trials In criminal Cases,
An Omission Wholly Unlikely To Be Made, If It Were Designed
They Should Attend The Trial Of Such Causes. Besides, The Here
Spoken Of (In John'S Charter) Does Not Allow These Justices To
Sit Alone In jury Trials, Even In civilactions; But Provides That
Four Knights, Chosen By The County, Shall Sit With Them To Keep
Them Honest. When The King'S Justices Were Known To Be So
Corrupt And Servile That The People Would Not Even Trust Them
To Sit Alone, In jury Trials, In civil Actions, How Preposterous Is
It To Suppose That They Would Not Only Suffer Them To Sit, But To
Sit Alone, In criminal Ones.
It Is Entirely Incredible That Magna Carta, Which Makes Such
Careful Provision In regard To The King'S Justices Sitting in
Civil Actions, Should Make No Provision Whatever As To Their
Sitting in criminal Trials, If They Were To Be Allowed to Sit In
Them At All. Yet Magna Carta Has No Provision Whatever On The
Subject. [10]
Chapter 7 (Illegal Judges) Pg 156
But What Would Appear To Make This Matter Ahsolute1Y Certain Is,
That Unless The Prohibition That "No Bailiff, &C;., Of Ours Shall
Hold Pleas Of Our Crown," Apply To All Officers Of The King,
Justices As Well As Others, It Would Be Wholly Nugatory For Any
Practical Or Useful Purpose, Because The Prohibition Could Be
Evaded by The King, At Any Time, By Simply Changing the Titles Of
His Officers. Instead Of Calling them "Sheriffs, Coroners,
Constables And Bailiffs," He Could Call Them "Justices," Or
Anything else He Pleased; And This Prohibition, So Important To
The Liberty Of The People, Would Then Be Entirely Defeated. The
King also Could Make And Unmake "Justices" At His Pleasure; And
If He Could Appoint Any Officers Whatever To Preside Over Juries
In Criminal Trials, He Could Appoint Any Tool That He Might At
Any Time Find Adapted to His Purpose. It Was As Easy To Make
Justices Of Jeffreys And Scroggs, As Of Any Other Material; And
To Have Prohibited all The King'S Officers, Except His Justices,
From Presiding in criminal Trials, Would Therefore Have Been Mere
Fool'S Play.
We Can All Perhaps Form Some Idea, Though Few Of Us Will Be
Likely To Form Any Adequate Idea, Of What A Different Thing the
Trial By Jury Would Have Been In practice, And Of What Would Have
Been The Difference To The Liberties Of England, For Five Hundred
Years Last Past, Had This Prohibition Of Magna Carta, Upon The
King'S Officers Sitting in the Trial Of Criminal Cases, Been
Observed.
The Principle Of This Chapter Of Magna Carta, As Applicable To
The Governments Of The United states Of America, Forbids That Any
Officer Appointed either By The Executive Or Legislative Power,
Or Dependent Upon Them For Their Salaries, Or Responsible To Them
By Impeachment, Should Preside Over A Jury In criminal Trials. To
Have The Trial A Legal (That Is, A Common Law) And True Trial By
Jury, The Presiding officers Must Be Chosen By The People, And Be
Entirely Free From All Dependence Upon, And All Accountability
To, The Executive And Legislative Branches Of The Government.
[12]
[1] The Proofs Of This Principle Of The Common Law Have Already
Been Given On Page 120, Note.
There Is Much Confusion And Contradiction Among Authors As To
The Manner In which Sheriffs And Other Officers Were Appointed; Some
Maintaining that They Were Appointed by The King, Others That
They Were Elected by The People. I Imagine That Both These
Opinions Are Correct, And That Several Of The King'S Officers
Bore The Same Official Names As Those Chosen By The People; And
That This Is The Cause Of The Confusion That Has Arisen On The
Subject.
It Seems To Be A Perfectly Well Established fact That, At Common
Law, Several Magistrates, Bearing the Names Of Aldermen, Sheriff,
Stewards, Coroners And Bailiffs, Were Chosen By The People; And
Chapter 7 (Illegal Judges) Pg 157Yet It Appears, From Magna Carta Itself, That Some Of The King'S
Officers (Of Whom He Must Have Had Many) Were Also Called
"Sheriffs, Constables, Coroners, And Bailiffs."
But Magna Carta, In various Instances, Speaks Of Sheriffs And
Bailiffs As "Our Sheriff'S And Bailiffs;" Thus Apparently
Intending to Recognize The Distinction Between Officers Of The
King, Bearing those Names, And Other Officers, Bearing the Same
Official Names, But Chosen By The People. Thus It Says That "No
Sheriff Or Bailiff Of Ours, Or Any Other (Officer), Shall Take
Horses Or Carts Of Any Freeman For Carriage, Unless With The
Consent Of The Freeman Himself." John'S Charter, Ch. 36.
In A Kingdom Subdivided into So Many Counties, Hundreds,
Tithings, Manors, Cities And Boroughs, Each Having a Judicial Or
Police Organization Of Its Own, It Is Evident That Many Of The
Officers Must Have Been Chosen By The People, Else The Government
Could Not Have Mainlined its Popular Character. On The Other
Hand, It Is Evident That The King, The Executive Power Of The
Nation, Must Have Had Large Numbers Of Officers Of His Own In
Every Part Of The Kingdom. And It Is Perfectly Natural That These
Different Sets Of Officers Should, In many Instances, Bear The
Same Official Names; And, Consequently That The King, When
Speaking of His Own Officers, As Distinguished, From Those Chosen
By The People, Should Call Them "Our Sheriffs, Bailiffs," &C;, As
He Does In magna Carta.
I Apprehend That Inattention To These Considerations Has Been The
Cause Of All The Confusion Of Ideas That Has Arisen On This
Subject, A Confusion Very Evident In the Following paragraph
From Dunham, Which May Be Given As An Illustration Of That Which
Is Exhibited by Others On The Same Points.
"Subordinate To The Ealdormen Were The Gerefas, The Sheriffs, Or
Reeves, Of Whom There Were Several In every Shire, Or County.
There Was One In every Borough, As A Judge. There Was One At
Every Gate, Who Witnessed purchases Outside The Walls; And There
Was One, Higher Than Either, The High Sheriff, Who Was Probably
The Reeve Of The Shire. This Last Appears To Have Been Appointed
By The King. Their Functions Were To Execute The Decrees Of The
King, Or Ealdormen, To Arrest Prisoners, To Require Bail For
Their Appearance At The Sessions, To Collect Fines Or Penalties
Levied by The Court Of The Shire, To Preserve The Public Peace,
And To Preside In a Subordinate Tribunal Of Their Own."
Durham'S Middle Ages, Sec. 2, B. 2, Ch. 1. - 57 Lardner'S Cab.
Cyc., P 41.
The Confusion Of Duties Attributed to These Officers Indicates
Clearly Enough That Different Officers, Bearing the Same Official
Names, Must Have Had Different Duties, And Have Derived their
Authority From Different Sources, To Wit, The King, And The
People.
[2] Darrein Presentement Was An Inquest To Discover Who
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