An Essay On The Trial By Jury by Lysander Spooner (best free novels .TXT) 📕

Redemption Was Taken Away,  And All Persons Guilty Of Larceny

Above The Value Off Twelve Pence Were Directed To Be Hanged,

Which Law Continues In Force To This Day."   4 Blackstone,  238

I Give This Statement Of Blackstone,  Because The Latter Clause May

Seem To Militate With The Idea,  Which The Former Clause

Corroborates,  Viz.,  That At The Time Of Magna Carta,  Fines Were The

Usual Punishment Of Offenses. But I Think There Is No Probability

That A Law So Unreasonable In Itself,  (Unreasonable Even After

Making All Allowance For The Difference In The Value Of Money,)

And So Contrary To Immemorial Custom,  Could And Did Obtain Any

General Or Speedy Acquiescence Among A People Who Cared Little

For The Authority Of Kings.

Maddox,  Writing Of The Period From William The Conqueror To

John,  Says: "The Amercement In Criminal And Common Pleas,

Which Were Wont To Be Imposed During This First Period And

Afterwards,  Were Of So Many Several Sorts,  That It Is Not Easy To

Place Them Under Distinct Heads. Let Them,  For Methods' Sake,  Be

Reduced To The Heads Following: Amercements For Or By Reason Of

Murders And Manslaughters,  For Misdemeanors,  For Disseisins,  For

Recreancy,  For Breach Of Assize,  For Defaults,  For Non-Appearance,

For False Judgment,  And For Not Making Suit,  Or Hue And Cry. To

Them May Be Added Miscellaneous Amercements,  For Trespasses Of

Divers Kinds."   1 Maddox' History Of The Exchequer,  542.

[28] Coke,  In His Exposition Of The Words Legem Terrae,  Gives Quite

In Detail The Principles Of The Common Law Governing Arrests,  And

Takes It For Granted That The Words "Nisi Per Legem Terre" Are

Applicable To Arrests,  As Well As To The Indictment,  &C.   2 Inst.,  51,

52.

[29] I Cite The Above Extract From Mr. Hallam Solely For The Sake Of

His Authority For Rendering The Word Vel By And; And Not By Any

Means For The Purpose Of Indorsing The Opinion He Suggests,  That

Legem Terrae Authorized "Judgments By Default Or Demurrer,*'

Without The Intervention Of A Jury. He Seems To Imagine That Lex

Terrae,  The Common Law,  At The Time Of Magna Carta,  Included

Everything,  Even To The Practice Of Courts,  That Is,  At This Day,  Called

By The Name Of Common Law; Whereas Much Of What Is Now

Called Common Law Has Grown Up,  By Usurpation,  Since The Time

Of Magna Carta,  In Palpable Violation Of The Authority Of That

Charter. He Says,  "Certainly There Are Many Legal Procedures,

Besides Trial By Jury,  Through Which A Party's Goods Or Person May

Be Taken." Of Course There Are Now Many Such Ways,  In Which A

Party's Goods Or Person Are Taken,  Besides By The Judgment Of A

Jury; But The Question Is,  Whether Such Takings Are Not In Violation

Of Magna Carta.

He Seems To Think That,  In Cases Of "Judgment By Default Or

Demurrer," There Is No Need Of A Jury,  And Thence To Infer That

Legem Terrae May Not Have Required A Jury In Those Cases. But This

Opinion Is Founded On The Erroneous Idea That Juries Are Required

Only For Determining Contested Facts,  And Not For Judging Of The

Law. In Case Of Default,  The Plaintif Must Present A Prima Facie Case

Before He Is Entitled To A Judgment; And Magna Carta,  (Supposing It

To Require A Jury Trial In Civil Cases,  As Mr. Hallam Assumes That It

Does,) As Much Requires That This Prima Facie Case,  Both Law And

Fact,  Be Made Out To The Satisfaction Of A Jury,  As It Does That A

Contested Case Shall Be.

As For A Demurrer,  The Jury Must Try A Demurrer (Having The Advice

And Assistance Of The Court,  Of Course) As Much As Any Other Matter

Of Law Arising In A Case.

Mr. Hallam Evidently Thinks There Is No Use For A Jury,  Except

Where There Is A "Trial"   Meaning Thereby A Contest On Matters Of

Fact. His Language Is,  That "There Are Many Legal Procedures,

Besides Trial By Jury,  Through Which A Party's Goods Or Person May

Be Taken." Now Magna Carta Says Nothing Of Trial By Jury; But Only

Of The Judgment,  Or Sentence,  Of A Jury. It Is Only By Inference That

We Come To The Conclusion That There Must Be A Trial By Jury. Since

The Jury Alone Can Give The Judgment,  Or Sentence,  We Infer That

They Must Try The Case; Because Otherwise They Would Be

Incompetent,  And Would Have No Moral Right,  To Give Judgment.

They Must,  Therefore,  Examine The Grounds,  (Both Of Law And Fact,)

Or Rather Try The Grounds,  Of Every Action Whatsoever,  Whether It Be

Decided On "Default,  Demurrer," Or Otherwise,  And Render Their

Judgment,  Or Sentence,  Thereon,  Before Any Judgment Can Be A Legal

One,  On Which "To Take A Party's Goods Or Person." In Short,  The

Principle Of Magna Carta Is,  That No Judgment Can Be Valid Against

A Party's Goods Or Person,  (Not Even A Judgment For Costs,) Except A

Judgment Rendered By A Jury. Of Course A Jury Must Try Every

Question,  Both Of Law And Fact,  That Is Involved In The Rendering Of

That Judgment. They Are To Have The Assistance And Advice Of The

Judges,  So Far As They Desire Them; But The Judgment Itself Must Be

Theirs,  And Not The Judgment Of The Court.

As To "Process Of Attachment For Contempt," It Is Of Course Lawful

For A Judge,  In His Character Of A Peace Officer,  To Issue A Warrant

For The Arrest Of A Man Guilty Of A Contempt,  As He Would For The

Arrest Of Any Other Offender,  And Hold Him To Bail,  (Or,  In Default Of

Bail,  Commit Him To Prison,) To Answer For His Offence Before A

Jury. Or He May Order Him Into Custody Without A Warrant When The

Offence Is Committed In The Judge's Presence.

But There Is No Reason Why A Judge Should Have The Power Of

Punishing,  For Contempt,  Any More Than For Any Other Offence. And

It Is One Of The Most Dangerous Powers A Judge Can Have,  Because It

Gives Him Absolute Authority In A Court Of Justice,  And Enables Him

To Tyrannize As He Pleases Over Parties,  Counsel,  Witnesses,  And

Jurors. If A Judge Have Power To Punish For Contempt,  And To

Determine For Himself What Is A Contempt,  The Whole Administration

Of Justice (Or Injustice,  If He Choose To Make It So) Is In His Hands.

And All The Rights Of Jurors,  Witnesses,  Counsel,  And Parties,  Are

Held Subject To His Pleasure,  And Can Be Exercised Only Agreeably

To His Will. He Can Of Course Control The Entire Proceedings In, 

And Consequently The Decision Of,  Every Cause,  By Restraining And

Punishing Every One,  Whether Party,  Counsel,  Witness,  Or Juror, 

Who Presumes To Offer Anything Contrary To His Pleasure. 

This Arbitrary Power,  Which Has Been Usurped And Exercised By

Judges To Punish For Contempt,  Has Undoubtedly Had Much To Do In

Subduing Counsel Into Those Servile,  Obsequious,  And Cowardly

Habits,  Which So Universally Prevail Among Them,  And Which Have

Not Only Cost So Many Clients Their Rights,  But Have Also Cost The

People So Many Of Their Liberties.

If Any Summary,  Punishment For Contempt Be Ever Necessary,  (As It

Probably Is Not,) Beyond Exclusion For The Time Being From The

Court-Room,  (Which Should Be Done,  Not As A Punishment,  But For

Self-Protection,  And The Preservation Of Order,) The Judgment For It

Should Be Given By The Jury,  (Where The Trial Is Before A Jury,) And

Not By The Court,  For The Jury,  And Not The Court,  Are Really The

Judges. For The Same Reason,  Exclusion From The Court-Room Should

Be Ordered Only By The Jury,  In Cases When The Trial Is Before A Jury,

Because They,  Being The Real Judges And Triers Of The Cause,  Are

Entitled,  If Anybody,  To The Control Of The Court-Room. In Appeal

Courts,  Where No Juries Sit,  It May Be Necessary   Not As A

Punishment,  But For Self-Protection,  And The Maintenance Of Order 

That The Court Should Exercise The Power Of Excluding A Person,  For

The Time Being,  From The Court-Room; But There Is No Reason Why

They Should Proceed To Sentence Him As A Criminal,  Without His

Being Tried By A Jury.

If The People Wish To Have Their Rights Respected And Protected In

Courts Of Justice,  It Is Manifestly Of The Last Importance That They

Jealously Guard The Liberty Of Parties,  Counsel,  Witnesses,  And

Jurors,  Against All Arbitrary Power On The Part Of The Court.

Certainly Mr. Hallam May Very Well Say That "One May Doubt

Whether These (The Several Eases He Has Mentioned) Were In

Contemplation Of The Framers Of Magna Carta "  That Is,  As

Exceptions To The Rule Requiring That All Judgmcnts,  That Are To Be

Enforced "Against A Party's Goods Or Person,",  Be Rendered By A Jury.

Again,  Mr. Hallam Says,  If The Word Vel,  Be Rendered By And,,  "The

Meaning Will Be,  That No Person Shall Be Disseized,  &C.,  Except

Upon A Lawful Cause Of Action.",  This Is True; But It Does Not Follow

That Any Cause Of Action,  Founded On Statute Only,,  Is Therefore A

"Lawful,  Cause Of Action," Within The Meaning Of Legem Terrae,  ,  Or

The Common Law.,  Within The Meaning Of The Legem Terrae,  Of

Magna Carta,  Nothing But A Common Law,  Cause Of Action Is A

"Lawful",  One.

If Any Evidence,  Extraneous To The History And Language Of Magna

Carta,  Were Needed. To Prove That,  By That Chapter Which

Guaranties The Trial By