An Essay On The Trial By Jury by Lysander Spooner (free novel reading sites TXT) ๐
- Author: Lysander Spooner
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Presented the Last Person To A Church; Mort De Ancestor, Whether
The Last Possessor Was Seized of Land In demesne Of His Own Fee;
And Novel Disseisin, Whether The Claimant Had Been Unjustly
Disseized of His Freehold.
[3] He Has No Power To Do It, Either With, Or Without, The King'S
Command. The Prohibition Is Absolute, Containing no Such
Qualification As Is Here Interpolated, Viz., "Without The King'S
Command." If It Could Be Done With The King'S Command, The King
Would Be Invested with Arbitrary Power In the Matter.
[4] The Absurdity Of This Doctrine Of Coke Is Made More Apparent
By The Fact That, At That Time, The "Justices" And Other Persons
Appointed by The King to Hold Courts Were Not Only Dependent Upon
The King for Their Offices, And Removable At His Pleasure, But
That The Usual Custom Was, Not To Appoint Them With Any View To
Permanency, But Only To Give Them Special Commissions For Trying
A Single Cause, Or For Holding a Single Term Of A Court, Or For
Making a Single Circuit; Which, Being done, Their Commissions
Expired. The King, Therefore, Could, And Undoubtedly Did, Appoint
Any Individual He Pleased, To Try Any Cause He Pleased, With A
Special View To The Verdicts He Desired to Obtain In the
Particular Cases.
This Custom Of Commissioning particular Persons To Hold Jury
Trials, In criminal Cases, (And Probably Also In civil Ones,) Was
Of Course A Usurpation Upon The Common Law, But Had Been
Practised more Or Less From The Time Of William The Conqueror.
Palgrave Says:
"The Frequent Absence Of William From His Insular Dominions
Occasioned another Mode Of Administration, Which Ultimately
Produced still Greater Changes In the Law. It Was The Practice Of
Appointing justiciars To Represent The King'S Person, To Hold His
Court, To Decide His Pleas, To Dispense Justice On His Behalf, To
Command The Military Levies, And To Act As Conservators Of The
Peace In the King'S Name. [5] .. The Justices Who Were Assigned
In The Name Of The Sovereign, And Whose Powers Were Revocable At
His Pleasure, Derived their Authority Merely From Their Grant...
Some Of Those Judges Were Usually Deputed for The Purpose Of
Relieving the King from The Burden Of His Judicial Functions...
The Number As Well As The Variety Of Names Of The Justices
Appearing in the Early Chirographs Of 'Concords,' Leave Reason
For Doubting whether, Anterior To The Reign Of Henry Iii., (1216
To 1272,) A Court, Whose Members Were Changing at Almost Every
Session, Can Be Said To Have Been Permanently Constituted. It
Seems More Probable That The Individuals Who Composed the
Tribunal Were Selected as Suited the Pleasure Of The Sovereign,
And The Convenience Of The Clerks And Barons; And The History Of
Our Legal Administration Will Be Much Simplified, If We Consider
All Those Courts Which Were Afterwards Denominated the
Exchequer, The King'S Bench, The Common Pleas, And The Chancery,
As Being originally Committees, Selected by The King when Occasion
Required, Out Of A Large Body, For The Despatch Of Peculiar
Chapter 7 (Illegal Judges) Pg 159Branches Of Business, And Which Committees, By Degrees, Assumed
An Independent And Permanent Existence... Justices Itinerant,
Who, Despatched throughout The Land, Decided the ' Pleas Of The
Crown,' May Be Obscurely Traced in the Reign Of The Conqueror;
Not, Perhaps, Appointed with Much Regularity, But Despatched upon
Peculiar Occasions And Emergencies." 1 Palgrave'S Rise And
Progress, &C;., P. 289 To 293.
The Following statute, Passed in 1354, (139 Years After Magna
Carta,) Shows That Even After This Usurpation Of Appointing
"Justices " Of His Own, To Try Criminal Cases, Had Probably
Become Somewhat Established in practice, In defiance Of Magna
Carta, The King was In the Habit Of Granting special Commissions
To Still Other Persons, (Especially To Sheriffs, His Sheriffs,
No Doubt,) To Try Particular Cases:
"Because That The People Of The Realm Have Suffered many Evils
And Mischiefs, For That Sheriffs Of Divers Counties, By Virtue Of
Commissions And General Writs Granted to Them At Their Own Suit,
For Their Singular Profit To Gain Of The People, Have Made And
Taken Divers Inquests To Cause To Indict The People At Their
Will, And Have Taken Fine And Ransom Of Them To Their Own Use,
And Have Delivered them; Whereas Such Persons Indicted were Not
Brought Before The King'S Justices To Have Their Deliverance, It
Is Accorded and Established, For To Eschew All Such Evils And
Mischiefs, That Such Commissions And Writs Before This Time Made
Shall Be Utterly Repealed, And That From Henceforth No Such
Commissions Shall Be Granted." St. 28 Edward Iii., Ch. 9,
(1354.)
How Silly To Suppose That The Illegality Of These Commissions To
Try Criminal Eases, Could Have Been Avoided by Simply Granting
Them To Persons Under The Title Of "Justices," Instead Of
Granting them To "Sheriffs." The Statute Was Evidently A Cheat,
Or At Least Designed as Such, Inasmuch As It Virtually Asserts
The Right Of The King to Appoint His Tools, Under The Name Of
"Justices," To Try Criminal Cases, While It Disavows His Right To
Appoint Them Under The Name Of "Sheriffs."
Millar Says: "When The King'S Bench Came To Have Its Usual
Residence At Westminster, The Sovereign Was Induced to Grant
Special Commissions, For Trying particular Crimes, In such Parts
Of The Country As Were Found Most Convenient; And This Practice
Was Gradually Modeled into A Regular Appointment Of Certain
Commissioners, Empowered, At Stated seasons, To Perform Circuits
Over The Kingdom, And To Hold Courts In particular Towns, For The
Trial Of All Sorts Of Crimes. These Judges Of The Circuit,
However, Never Obtained an Ordinary Jurisdiction, But Continued,
On Every Occasion, To Derive Their Authority From Two Special
Commissions: That Of Oyer And Terminer, By Which They Were
Appointed to Hear And Determine All Treasons, Felonies And
Misdemeanors, Within Certain Districts; And That Of Gaol
Delivery, By Which They Were Directed to Try Every Prisoner
Confined in the Gaols Of The Several Towns Falling under Their
Chapter 7 (Illegal Judges) Pg 160Inspection." Millar'S Hist. View Of Eng. Gov., Vol. 2, Ch. 7,
P. 282.
The Following extract From Gilbert Shows To What Lengths Of
Usurpation The Kings Would Sometimes Go, In their Attempts To Get
The Judicial Power Out Of The Hands Of The People, And Entrust It
To Instruments Of Their Own Choosing:
"From The Time Of The Saxons," (That Is, From The Commencement
Of The Reign Of William The Conqueror,) "Till The Reign Of Edward
The First, (1272 To 1307,) The Several County Courts And Sheriffs
Courts Did Decline In their Interest And Authority. The Methods
By Which They Were Broken Were Two-Fold. First, By Granting
Commissions To The Sheriffs By Writ Of Justicies, Whereby The
Sheriff Had A Particular Jurisdiction Granted him To Be Judge Of
A Particular Cause, Independent Of The Suitors Of The County
Court," (That Is, Without A Jury;) "And These Commissions Were
After The Norman Form, By Which (According to Which) All Power Of
Judicature Was Immediately Derived from The King." Gilbert On
The Court Of Chancery, P. L.
The Several Authorities Now Given Show That It Was The Custom Of
The Norman Kings, Not Only To Appoint Persons To Sit As Judges In
Jury Trials, In criminal Cases, But That They Also Commissioned
Individuals To Sit In singular And Particular Eases, As Occasion
Required; And That They Therefore Readily Could, And Naturally
Would, And Therefore Undoubtedly Did, Commission Individuals
With A Special View To Their Adaptation Or Capacity To Procure Such
Judgments As The Kings Desired.
The Extract From Gilbert Suggests Also The Usurpation Of The
Norman Kings, In their Assumption That They, (And Not The People,
As By The Common Law,) Were The Fountains Of Justice. It Was Only
By Virtue Of This Illegal Assumption That They Could Claim To
Appoint Their Tools To Hold Courts.
All These Things Show How Perfectly Lawless And Arbitrary The
Kings Were, Both Before And After Magna Carta, And How Necessary
To Liberty Was The Principle Of Magna Carta And The Common Law,
That No Person Appointed by The King should Hold Jury Trials In
Criminal Cases.
[5] In this Extract, Palgrave Seems To Assume That The King
Himself Had A Right To Sit As Judge, In jury Trials, In the
County Courts, In both Civil And Criminal Cases. I Apprehend He
Had No Such Power At The Common Law, But Only To Sit In the Trial
Of Appeals, And In the Trial Of Peers, And Of Civil Suits In
Which Peers Were Parties, And Possibly In the Courts Of Ancient
Demesne.
[6] The Opinions And Decisions Of Judges And Courts Are
Undeserving of The Least Reliance, (Beyond The Intrinsic Merit Of
The Arguments Offered to Sustain Them,) And Are Unworthy Even To
Be Quoted as Evidence Of The Law, When Those Opinions Or
Chapter 7 (Illegal Judges) Pg 161Decisions Are Favorable To The Power Of The Government, Or
Unfavorable To The Liberties Of The People. The Only Reasons That
Their Opinions, When In favor Of Liberty, Are Entitled to Any
Confidence, Are, First, That All Presumptions Of Law Are In favor
Of Liberty; And, Second, That The Admissions Of All Men, The
Innocent And The Criminal Alike, When Made Against Their Own
Interests, Are Entitled to Be Received as True, Because It Is
Contrary To Human Nature For A Man To Confess Anything but Truth
Against Himself.
More Solemn Farces, Or More Gross Impostures, Were Never
Practised upon Mankind, Than Are All, Or Very Nearly All, Those
Oracular Responses By Which Courts Assume To Determine That
Certain Statutes, In restraint Of Individual Liberty, Are Within
The Constitutional Power Of The Government, And Are Therefore
Valid And Binding upon The People.
The Reason Why These Courts Are So Intensely Servile And Corrupt,
Is, That They Are Not Only Parts Of, But The Veriest Creatures
Of, The Very Governments Whose Oppressions They Are Thus Seeking
To Uphold. They Receive Their Offices And Salaries From, And Are
Impeachable And
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