An Essay On The Trial By Jury by Lysander Spooner (best love novels of all time TXT) ๐
- Author: Lysander Spooner
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Into Execution.
Doing A Thing By Law, Or According To Law, Is Only Carrying The Law
Into Execution. And Punishing A Man By, Or According To, The
Sentence Or Judgment Of His Peers, Is Only Carrying That Sentence Or
Judgment Into Execution.
If These Reasons Could Leave Any Doubt That The Word Per Is To Be
Translated According To, That Doubt Would Be Removed By The Terms
Of An Antecedent Guaranty For The Trial By Jury, Granted By The
Emperor Conrad, Of Germany, [17] Two Hundred Years Before
Magna Carta. Blackstone Cites It As Follows: (3 Blackstone, 350.)
"Nemo Beneficium Suum Perdat, Nisi Secundum Consuetu-Dinem
Antecessorum Nostrorum, Et Judicium Parium Suorum." That Is, No
One Shall Lose His Estate, [18] Unless According To ("Secundum")
The Custom (Or Law) Of Our Ancestors, And (According To) The
Sentence (Or Judgment) Of His Peers.
The Evidence Is Therefore Conclusive That The Phrase Per Judicium
Parian Suorum Means According To The Sentence Of His Peers; Thus
Implying Hat The Jury, And Not The Government, Are To Fix The
Sentence.
If Any Additional Proof Were Wanted That Juries Were To Fix The
Sentence, It Would Be Found In The Following Provisions Of Magna
Carta, Viz.:
"A Freeman Shall Not Be Amerced For A Small Crime, (Delicto,) But
According To The Degree Of The Crime; And For A Great Crime In
Proportion To The Magnitude Of It, Saving To Him His Contenement;
[19] And After The Same Manner A Merchant, Saving To Him His
Merchandise. And A Villein Shall Be Amerced After The Same
Manner, Aving To Him His Waynage, [20] If He Fall Under Our Mercy;
And None Of The Aforesaid Amercements Shall Be Imposed, (Or
Assessed, Ponatur,) But By The Oath Of Honest Men Of The
Neighborhood. Earls And Barons Shall Not Be Amerced But By Their
Peers, And According To The Degree Of Their Crime." [21]
Pecuniary Punishments Were The Most Common Punishments At
That Day, And The Foregoing Provisions Of Magna Carta Show That
The Amount Of Those Punishments Was To Be Fixed By The Jury.
Fines Went To The King, And Were A Source Of Revenue; And If The
Amounts Of The Fines Had Been Left To Be Fixed By The King, He
Would Have Had A Pecuniary Temptation To Impose Unreasonable
And Oppressive Ones. So, Also, In Regard To Other Punishments Than
Fines. If It Were Left To The King To Fix The Punishment, He Might
Often Have Motives To Inflict Cruel And Oppressive Ones. As It Was
The Object Of The Trial By Jury To Protect The People Against All
Possible Oppression From The King, It Was Necessary That The Jury,
And Not The King, Should Fix The Punishments. [22]
"Legale."
The Word "Legale," In The Phrase "Per Legale Judicium Parium
Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 24Suorum,"Doubtless Means Two Things.1. That The Sentence Must Be
Given In A Legal Manner; That Is, By The Legal Number Of Jurors,
Legally Empanelled And Sworn To Try The Cause; And That They Give
Their Judgment Or Sentence After A Legal Trial, Both In Form And
Substance, Has Been Had. 2. That The Sentence Shall Be For A Legal
Cause Or Offence. If, Therefore, A Jury Should Convict And Sentence A
Man, Either Without Giving Him A Legal Trial, Or For An Act That Was
Not Really And Legally Criminal, The Sentence Itself Would Not Be
Legal; And Consequently This Clause Forbids The King To Carry Such A
Sentence Into Execution; For The Clause Guarantees That He Will
Execute No Judgment Or Sentence, Except It Be Legale Judicium,A
Legal Sentence. Whether A Sentence Be A Legal One, Would Have To
Be Ascertained By The King Or His Judges, On Appeal, Or Might Be
Judged Of Informally By The King Himself.
The Word "Legale"Clearly Did Not Mean That The Judicium Parium
Suorum (Judgment Of His Peers) Should Be A Sentence Which Any
Law (Of The King) Should Require The Peers To Pronounce; For In That
Case The Sentence Would Not Be The Sentence Of The Peers, But Only
The Sentence Of The Law, (That Is, Of The King); And The Peers Would
Be Only A Mouthpiece Of The Law, (That Is, Of The King,) In Uttering
It.
"Per Legem Terrae."
One Other Phrase Remains To Be Explained, Viz., "Per Legem Terrae,"
"By The Law Of The Land."
All Writers Agree That This Means The Common Law.Thus, Sir
Matthew Hale Says:
"The Common Law Is Sometimes Called, By Way Of Eminence, Lex
Terrae,As In The Statute Of Magna Carta,Chap. 29, Where Certainly
The Common Law Is Principally Intended By Those Words, Aut Per
Legem Terrae;As Appears By The Exposition Thereof In Several
Subsequent Statutes; And Particularly In The Statute Of 28 Edward
Iii., Chap. 3, Which Is But An Exposition And Explanation Of That
Statute. Sometimes It Is Called Lex Angliae,As In The Statute Of
Merton, Cap. 9, "Olurnus Leqes Angliae Mutari,"&C;., (We Will That
The Laws Of England Be Not Changed). Sometimes It Is Called Lex Et
Consuetudo Regni(The Law And Custom Of The Kingdom); As In All
Commissions Of Oyer And Terminer; And In The Statutes Of 18
Edward I., Cap. , And De Quo Warranto,And Divers Others. But Most
Commonly It Is Called The Common Law, Or The Common Law Of
England; As In The Statute Articuli Super Chartas,Cap. 15, In The
Statute 25 Edward Iii., Cap. 5, (4,) And Infinite More Records And
Statutes." 1 Hale's History Of The Common Law, 128.
This Common Law, Or "Law Of The Land," The King Was Sworn To
Maintain.This Fact Is Recognized By A Statute Made At Westminster,
In 1346, By Edward Iii., Which Commences In This Manner:
"Edward, By The Grace Of God, &C;., &C;., To The Sheriff Of
Stafford, Greeting: Because That By Divers Complaints Made To Us,
Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 25We Have Perceived That The Law Of The Land, Which We By Oath Are
Bound Fo Maintain,"&C;. St. 20 Edward Iii
The Foregoing Authorities Are Cited To Show To The Unprofessional
Reader, What Is Well Known To The Profession, That Legem Terrae, The
Law Of The Land,Mentioned In Magna Carta, Was The Common,
Ancient, Fundamental Law Of The Land, Which The Kings Were Bound
By Oath To Observe; And That It Did Not Include Any Statutes Or Laws
Enacted By The King Himself, The Legislative Power Of The Nation.
If The Term Legem Terraehad Included Laws Enacted By The King
Himself, The Whole Chapter Of Magna Carta, Now Under Discussion,
Would Have Amounted To Nothing As A Protection To Liberty; Because
It Would Have Imposed No Restraint Whatever Upon The Power Of The
King. The King Could Make Laws At Any Time, And Such Ones As He
Pleased. He Could, Therefore, Have Done Anything He Pleased, By
The Law Of The Land,As Well As In Any Other Way, If His Own Laws Had
Been "The Law Of The Land."If His Own Laws Had Been "The Law Of The
Land," Within The Meaning Of That Term As Used In Magna Carta, This
Chapter Of Magna Carta Woold Have Been Sheer Nonsense,
Inasmuch As The Whole Purpot Of It Would Have Been Simply That
"No Man Shall Be Arrested, Imprisoned, Or Deprived Of His Freehold,
Or His Liberties, Or Free Customs, Or Outlawed, Or Exiled, Or In Any
Manner Destroyed (By The King); Nor Shall The King Proceed Against
Him, Nor Send Any One Againist Him With Force And Arms, Unless By
The Judgment Of His Peers, Or Uness The King Shall Please To Do So."
This Chapter Of Magna Carta Would, Therefore, Have Imposed Not
The Slightest Restraint Upon The Power Of The King, Or Afforded The
Slightest Protection To The Liberties Of The People, If The Laws Of The
King Had Been Embraced In Theterm Legem Terrae. But If Legem
Terrae Was The Common Law, Which The King Was Sworn To
Maintain, Then A Real Restriction Was Laid Upon His Power, And A Real
Guaranty Given To The People For Their Liberties.
Such, Then, Being The Meaning Of Legem Terrae, The Fact Is
Established That Magna Carta Took An Accused Person Entirely Out
Of The Hands Of The Legislative Power, That Is, Of The King; And
Placed Him In The Power And Under The Protection Of His Peers, And
The Common Law Alone; That, In Short, Magna Carta Suffered No
Man To Be Punished For Violating Any Enactment Of The Legislative
Power, Unless The Peers Or Equals Of The Accused. Freely Consented
To It, Or The Common Law Authorized It; That The Legislative Power,
Of Itself, Was Wholly Incompetent To Require The Conviction Or
Punishment Of A Man For Any Offence Whatever.
Whether Magna Carta Allowed Of Any Other Trial Than By Jury.
The Question Here Arises, Whether "Legem Terrae Did Not Allow Of
Some Other Mode Of Trial Than That By Jury.
The Answer Is, That, At The Time Of Magna Carta, It Is Not Probable,
(For The Reasons Given In The Note,) That Legem Terrae Authorized, In
Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 26Criminal Cases, Any Other Trial Than The Trial By Jury; But, If It Did, It
Certainly Authorized None But The Trial By Battle, The Trial By Ordeal,
And The Trial By Compurgators. These Were The Only Modes Of Trial,
Except By Jury, That Had Been Knownin England, In Criminal Cases,
For Some Centuries Previous To Magna Carta. All Of Them Had
Become Nearly Extinct At The Time Of Magna Carta, And It Is Not
Probable That They Were Included In "Legem Terrae," As That Term Is
Used In That Instrument. But If They Were Included In It, They Have
Now Been Long Obsolete, And Were Such As Neither This Nor Any
Future Age Will Ever Return To. [23]
For All Practical Puposes Of The Present Day, Therefore, It May Be
Asserted That Magna Carta Allows No Trial Whatever But Trial By
Jury.
Whether Magna Carta Allowed Sentence To Be Fixed Otherwise Than
By The Jury.
Still Another Question Arises On The Words Legem Terrae, Viz.,
Whether, In Cases Where The Question Of Guilt Was Determined By
The Jury, The Amount
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