An Essay On The Trial By Jury by Lysander Spooner (best love novels of all time TXT) ๐
- Author: Lysander Spooner
Book online ยซAn Essay On The Trial By Jury by Lysander Spooner (best love novels of all time TXT) ๐ยป. Author Lysander Spooner
Legem Terrae, The Common Law, Instead Of Its Being Fixed By The
Jury.
I Think We Have No Evidence Whatever That, At The Time Of Magna
Carta, Or Indeed At Any Other Time, Lex Terrae, The Common Law,
Fixed The Punishment In Cases Where The Question Of Guilt Was Tried
By A Jury; Or, Indeed, That It Did In Any Other Case. Doubtless Certain
Punishments Were Common And Usual For Certain Offences; But I Do
Not Think It Can Be Shown That The Common Law, The Lex Terrae,
Which The King Was Sworn To Maintain, Required Any One Specific
Punishment, Or Any Precise Amount Of Punishment, For Any One
Specific Offence. If Such A Thing Be Claimed, It Must Be Shown, For
It Cannot Be Presumed. In Fact, The Contrary Must Be Presumed,
Because, In The Nature Of Things, The Amount Of Punishment Proper
To Be Inflicted On Any Particular Case, Is A Matter Requiring The
Exercise Of Discretion At The Time, In Order To Adapt It To The Moral
Quality Of The Offence, Which Is Different In Each Case, Varying With
The Mental And Moral Constitutions Of The Offenders, And The
Circumstances Of Temptation Or Provocation. And Magna Carta
Recognizes This Principle Distinctly, As Has Before Been Shown, In
Providing That Freemen, Merchants, And Villeins, "Shall Not Be
Amerced For A Small Crime, But According To The Degree Of The
Crime; And For A Great Crime In Proportion To The Magnitude Of It,"
And That "None Of The Aforesaid Amercements Shall Be Imposed (Or
Assessed) But By The Oaths Of Honest Men Of The Neighborhood;"
And That "Earl And Barons Shall Not Be Amerced But By Their Peers,
And According To The Quality Of The Offence."
All This Implies That The Moral Quality Of The Offence Was To Be
Judged Of At The Rial, And That The Punishment Was To Be Fixed By
The Discretion Of The Peers, Or Jury, And Not By Any Such Unvarying
Rule As A Common Law Rule Would Be.
Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 27
I Think, Therefore, It Must Be Conceded That, In All Cases, Tried By A
Jury, Magna Carta Intended That The Punishment Should Be Fixed By
The Jury, And Not By The Common Law, For These Several Reasons.
1. It Is Uncertain Whether The Common Law Fixed The Punishment Of
Any Offence Whatever.
2. The Words "Per Judicium Parium Suorum," According To The
Sentence Of His Peers, Imply That The Jury Fixed The Sentence In
Some Cases Tried By Them; And If They Fixed The Sentence In Some
Cases, It Must Be Presumed They Did In All, Unless The Contrary Be
Clearly Shown.
3. The Express Provisions Of Magna Carta, Before Adverted To, That
No Amercements, Or Fines, Should Be Imposed Upon. Freemen,
Merchants, Or Villeins, "But By The Oath Of Honest Men Of The
Neighborhood," And "According To The Degree Of The Crime," And
That "Earls And Barons Shout Not Be Amerced But By Their Peers, And
According To The Quality Of The Offence," Proves That, At Least, There
Was No Common Law Fixing The Amount Of Fines, Or, If There Were,
That It Was To Be No Longer In Force. And If There Was No Common
Law Fixing The Amount Of Fines, Or If It Was To Be No Longer In Force,
It Is Reasonable To Infer, (In The Absence Of All Evidence To The
Contrary,) Either That The Common Law Did Not Fix The Amount Of
Any Other Punishment, Or That It Was To Be No Longer In Force For
That Purpose. [25]
Under The Saxon Laws, Fines, Payable To The Injured Party, Seem To
Have Been The Common Punishments For All Offences. Even Murder
Was Punishable By A Fine Payable To The Relatives Of The Deceased.
The Murder Of The King Even Was Punishable By Fine. When A
Criminal Was Unable To Pay His One, His Relatives Often Paid It For
Him. But If It Were Not Paid, He Was Put Out Of The Protection Of The
Law, And The Injured Parties, (Or,In The Case Of Murder, The Kindred
Of The Deceased,)Were Allowed To Inflict Such Punishment As They
Pleased. And If The Relatives Of The Criminal Protected Him, It Was
Lawful To Take Vengeance On Them Also. Afterwards The Custom
Grew Up Of Exacting Fines Also To The King As A Punishment For
Offences. [26]
And This Latter Was, Doubtless, The Usual Punishment At The Time Of
Magna Carta, As Is Evidenced By The Fact That For Many Years
Immediately Following Magna Carta, Nearly Or Quite All Statutes
That Prescribed Any Punishment At All, Prescribed That The Offender
Should "Be Grievously Amerced," Or "Pay A Great Fine To The King,"
Or A "Grievous Ransom," With The Alternative In Some Cases
(Perhaps Understood In All) Of Imprisonment, Banishment, Or
Outlawry, In Case Of Non-Payment. [27]
Judging, Therefore, From The Special Provisions In Magna Carta,
Requiring Fines, Or Amercements, To Be Imposed Only By Juries,
(Without Mentioning Any Other Punishments;) Judging, Also, From
Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 28The Statutes Which Immediately Followed Magna Carta, It Is
Probable That, The Saxon Custom Of Punishing All, Or Nearly All,
Offences By Fines, (With The Alternative To The Criminal Of Being
Imprisoned, Banished, Or Outlawed, And Exposed To Private
Vengeance, In Case Of Non-Payment,) Continued Until The Time Of
Magna Carta; And That In Providing Expressly That Fines Should Be
Fixed By The Juries, Magna Carta Provided For Nearly Or Quite All
The Punishments That Were Expected To Be Inflicted; That If There
Were To Be Any Others, They Were To Be Fixed By The Juries; And
Consequently That Nothing Was Left To Be Fixed By "Legem Terrae."
But Whether The Common Law Fixed The Punishment Of Any
Offences, Or Not, Is A Matter Of Little Or No Practical Importance At
This Day; Because We Have No Idea Of Going Back To Any Common
Law Punishments Of Six Hundred Years Ago, If, Indeed, There Were
Any Such At That Time. It Is Enough For Us To Know And This Is What
Is Material For Us Know That The Jury Fixed The Punishments, In All
Cases, Unless They Were Fixed By The Common Law; That Magna
Carta Allowed No Punishments To Be Prescribed By Statute That Is,
By The Legislative Power Nor In Any Other Manner By The King, Or
His Judges, In Any Case Whatever; And, Consequently, That All
Statutes Prescribing Particular Punishmnts For Particular Offences,
Or Giving The King's Judges Any Authority To Fix Punishments, Were
Void.
If The Power To Fix Punishments Had Been Left In The Hands Of The
King, It Would Have Given Him A Power Of Oppression, Which Was
Liable To Be Greatly Abused; Which There Was No Occasion To Leave
With Him; And Which Would Have Been Incongruous With The Whole
Object Of This Chapter Of Magna Carta; Which Object Was To Take All
Discretionary Or Arbitrary Power Over Individuals Entirely Out Of The
Hands Of The King, And His Laws, And Entrust It Only To The Common
Law, And The Peers, Or Jury That Is, The People. What Lex Terrae
Did Authorize.
But Here The Question Arises, What Then Did Legem Terrae" Authorize
The King, (That Is, The Government,) To Do In The Case Of An Accused
Person, If It Neither Authorized Any Other Trial Than That By Jury, Nor
Any Other Punishments Than Those Fixed By Juries?
The Answer Is, That, Owing To The Darkness Of History On The Point,
It Is Probably Wholly Impossible, At This Day, To State, With Any
Certainty Or Precision, Anything Whatever That The Legem Terrae Of
Magna Carta Did Authorize The King, (That Is, The Government,) To
Do, (If, Indeed, It Authorized Him To Do Anything,) In The Case Of
Criminals, Other Than To Have Them, Tried And Sentenced By Their
Peers, For Common Law Crimes; And To Carry That Sentence Into
Execution.
The Trial By Jury Was A Part Of Legem Terrae, And We Have The Means
Of Knowing What The Trial By Jury Was. The Fact That The Jury Were
To Fix The Sentence, Implies That They Were To Try The Accused;
Otherwise They Could Not Know What Sentence, Or Whether Any
Sentence, Ought To Be Inflicted Upon Him. Hence It Follows That The
Jury Were To Judge Of Everything Involved In The Trial; That Is, They
Chapter 2 (The Trial By Jury As Defined By Magna Carta) Section 2 Pg 29Were To Judge Of The Nature Of The Offence, Of The Admissibility And
Weight Of Testimony, And Of Everything Else Whatsoever That Was Of
The Essence Of The Trial. If Anything Whatever Could Be Dictated To
Them, Either Of Law Or Evidence, The Sentence Would Not Be Theirs,
But Would Be Dictated To Them By The Power That Dictated To Them
The Law Or Evidence. The Trial Nd Sentence, Then, Were Wholly In The
Hands Of The Jury.
We Also Have Sufficient Evidence Of The Nature Of The Oath
Administered To Jurors In Criminal Cases. It Was Simply, That They
Would Neither Convict The Innocent, Nor Acquit The Guilty. This Was
The Oath In The Saxon Times, And Probably Continued To Be Until
Magna Carta.
We Also Know That, In Case Of Conviction, The Sentence Of The Jury
Was Not Necessarily Final; That The Accused Had The Right Of Appeal
To The King And His Judges, And To Demand Either A New Trial, Or An
Acquittal, If The Trial Or Conviction Had Been Against Law. So Much,
Therefore, Of The Legem Terrae Of Magna Carta, We Know With
Reasonable Certainty.
We Also Know That Magna Carta Provides That "No Bailiff (Balivus)
Shall Hereafter Put Any Man To His Law, (Put Him On Trial,) On His
Single Testimony, Without Credible Witnesses Brought To Support It."
Coke Thinks "That Under This Word Balivus, In This Act, Is
Comprehended Every Justice, Minister Of The King, Steward Of The
King, Steward And Bailiff." (2 Inst. 44.) And In Support Of This Idea
He Quotes From A Very Ancient Law Book, Called The Mirror Of
Justices, Written In The Time Of Edward I., Within A Century After
Magna Carta. But Whether This Were Really A Common Law
Principle, Or Whether The Provision Grew Out Of That Jealousy Of The
Government Which, At The Time Of Magna Carta, Had Reached Its
Height, Cannot Perhaps Now Be Determined.
We Also Know That, By Magna Carta, Amercements, Or Fines, Could
Not Be Imposed To The Ruin Of The Criminal; That, In The Case Of A
Freeman,
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