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

Tyrannical Practices That Prevailed.

We Are Told Also That John Himself "Had Dispossessed Several

Great Men Without Any Judgment Of Their Peers,  Condemned Others

To Cruel Deaths,  * * Insomuch That His Tyrannical Will Stood

Instead Of A Law."   Echard's History Of England,  106.

Now All These Things Were Very Unnecessary And Foolish,  If His

Laws Were Binding Upon Juries; Because,  In That Ease,  He Could

Have Procured The Conviction Of These Men In A Legal Manner,  And

Thus Have Saved The Necessity Of Such Usurpation. In Short,  If

The Laws Of The King Had Been Binding Upon Juries,  There Is No

Robbery,  Vengeance,  Or Oppression,  Which He Could Not Have

Accomplished Through The Judgments Of Juries. This Consideration

Is Sufficient,  Of Itself,  To Prove That The Laws Of The King Were

Of No Authority Over A Jury,  In Either Civil Or Criminal Cases,

Unless The Juries Regarded The Laws As Just In Themselves.

[3] By The Magna Carta Of Henry Iii.,  This Is Changed To Once A

Year.

[4] From The Provision Of Magna Carta,  Cited In The Text,  It Must

Be Inferred That There Can Be No Legal Trial By Jury,  In Civil

Eases,  If Only The King's Justices Preside; That,  To Make The

Trial Legal,  There Must Be Other Persons,  Chosen By The People,

To Sit With Them; The Object Being To Prevent The Jury's Being

Deceived By The Justices. I Think We Must Also Infer That The

King's Justices Could Sit Only In The Three Actions Specially

Mentioned. We Cannot Go Beyond The Letter Of Magria Carta,  In

Making Innovations Upon The Common Law,  Which Required All

Presiding Officers In Jury Trials To Be Elected By The People.

[5] ["The Earls,  Sheriffs,  And Head-Boroughs Were Annually

Elected In The Full Folcmote,  (People's Meeting)." Introduction

To Gilbert's History Of The Common Pleas,  P. 2,  Note.

"It Was The Especial Province Of The Earldomen Or Earl To Attend

The Shyre-Meeting,  (The County Court,) Twice A Year,  And There

Officiate As The County Judge In Expounding The Secular Laws,  As

Appears By The Fifth Of Edgar's Laws."   Same,  P. 2,  Note.

"Every Ward Had Its Proper Alderman,  Who Was Chosen,  And Not

Imposed By The Prince."   Same,  P. 4,  Text.

"As The Aldermen,  Or Earls,  Were Always Chosen" (By The People)

"From Among The Greatest Thanes,  Who In Those Times Were

Generally More Addicted To Arms Than To Letters,  They Were But

Ill-Qualified For The Administration Of Justice,  And Performing

The Civil Duties Of Their Office."   3 Henry's History Of Great

Britain,  343.

"But None Of These Thanes Were Annually Elected In The Full

Folcmote,  (People's Meeting,) As The Earls,  Sheriffs,  And

Head-Boroughs Were; Nor Did King Alfred (As This Author Suggests)

Deprive The People Of The Election Of Those Last Mentioned

Magistrates And Nobles,  Much Less Did He Appoint Them Himself." 

Introd. To Gilbert's Hist. Com. Pleas,  P. 2,  Note.

"The Sheriff Was Usually Not Appointed By The Lord,  But Elected

By The Freeholders Of The District."   Political Dictionary,  Word

Sheriff.

"Among The Most Remarkable Of The Saxon Laws We May Reckon

* * The Election Of Their Magistrates By The People,  Originally Even

That Of Their Kings,  Till Dear-Bought  Experience Evinced The

Convenience And Necessity Of Establishing An Hereditary

Succession To The Crown. But That (The Election) Of All

Subordinate Magistrates,  Their Military Officers Or Heretochs,

Their Sheriffs,  Their Conservators Of The Peace,  Their Coroners,

Their Portreeves,  (Since Changed Into Mayors And Bailiffs,) And

Even Their Tithing-Men And Borsholders At The Last,  Continued,

Some,  Till The Norman Conquest,  Others For Two Centuries After,

And Some Remain To This Day."   4 Blackstone,  418.

"The Election Of Sheriffs Was Left To The People,  According To

Ancient Usage."   St. West. 1,  C. 27.   Crabbe's History Of

English Law,  181.

The Following Objections Will Be Made To The Doctrines And The

Evidence Presented In The Preceding Chapters.

1. That It Is A Maxim Of The Law,  That The Judges Respond To The

Question Of Law,  And Juries Only To The Question Of Fact.

The Answer To This Objection Is,  That,  Since Magna Carta,  Judges

Have Had More Than Six Centuries In Which To Invent And

Promulgate Pretended Maxims To Suit Themselves; And This Is One

Of Them. Instead Of Expressing The Law,  It Expresses Nothing But The

Ambitious And Lawless Will Of The Judges Themselves,  And Of Those

Whose Instruments They Are.[1]

2. It Will Be Asked,  Of What Use Are The Justices,  If The Jurors

Judge Both Of Law And Fact?

The Answer Is,  That They Are Of Use,  1. To Assist And Enlighten

The Jurors,  If They Can,  By Their Advice And Information; Such

Advice And Information To Be Received Only For What They May

Chance To Be Worth In The Estimation Of The Jurors.  2. To Do

Anything That May Be Necessary In Regard,  To Granting Appeals And

New Trials.

3. It Is Said That It Would Be Absurd That Twelve Ignorant Men

Should Have Power To Judge Of The Law,  While Justices Learned In

The Law Should Be Compelledto Sit By And See The Law Decided

Erroneously.

One Answer To This Objection Is,  That The Powers Of Juries Are Not

Granted To Them On The Supposition That They Know The Law Better

Than The Justices; But On The Ground That The Justices Are

Untrustworthy,  That They Are Exposed To Bribes,  Are Themselves

Fond Of Power And Authority,  And Are Also The Dependent And

Subservient Creatures Of The Legislature; And That To Allow Them

To Dictate The Law,  Would Not Only Expose The Rights Of Parties To

Be Sold For Money,  But Would Be Equivalent To Surrendering All The

Property,  Liberty,  And Rights Of The People,  Unreservedly Into The

Hands Of Arbitrary Power,  (The Legislature,) To Be Disposed Of At

Its Pleasure. The Powers Of Juries,  Therefore,  Not Only Place A

Curb Upon The Powers Of Legislators And Judges,  But Imply Also An

Imputation Upon Their Integrity And Trustworthiness: And These Are

The Reasons Why Legislators And Judges Have Formerly Entertained

The Intensest Hatred Of Juries,  And,  So Fast As They Could Do It

Without Alarming The People For Their Liberties,  Have,  By

Indirection,  Denied,  Undermined,  And Practically Destroyed Their

Power. And It Is Only Since All The Real Power Of Juries Has Been

Destroyed,  And They Have Become Mere Tools In The Hands Of

Legislators And Judges,  That They Have Become Favorites With Them.

Legislators And Judges Are Necessarily Exposed To All The

Temptations Of Money,  Fame,  And Power,  To Induce Them To

Disregard Justice Between Parties,  And Sell The Rights,  And Violate The

Liberties Of The People. Jurors,  On The Other Hand,  Are Exposed To

None Of These Temptations. They Are Not Liable To Bribery,  For

They Are Unknown To The Parties Until They Come Into The Jury-Box.

They Can Rarely Gain Either Fame,  Power,  Or Money,  By Giving

Erroneous Decisions. Their Offices Are Temporary,  And They Know

That When They Shall Have Executed Them,  They Must Return To The

People,  To Hold All Their Own Rights In Life Subject To The

Liability Of Such Judgments,  By Their Successors,  As They

Themselves Have Given An Example For. The Laws Of Human Nature

Do Not Permit The Supposition That Twelve Men,  Taken By Lot From The

Mass Of The People,  And Acting Under Such Circumstances,  Will All

Prove Dishonest. It Is A Supposable Case That They May Not Be

Sufficiently Enlightened To Know And Do Their Whole Duty,  In All

Cases Whatsoever; But That They Should All Prove Dishonest,  Is Not

Within The Range Of Probability. A Jury,  Therefore,  Insures To Us  

What No Other Court Does   That First And Indispensable Requisite

In A Judicial Tribunal,  Integrity.

4. It Is Alleged That If Juries Are Allowed To Judge Of The Law,

They Decide The Law Absolutely; That Their Decision Must

Necessarily Stand,  Be It Right Or Wrong; And That This Power Of

Absolute Decision Would Be Dangerous In Their Hands,  By Reason Of

Their Ignorance Of The Law.

One Answer Is,  That This Power,  Which Juries Have Of Judging Of

The Law,  Is Not A Power Of Absolute Decision In All Cases.  For

Example,  It Is A Power To Declare Imperatively That A Man's

Property,  Liberty,  Or Life,  Shall Not Be Taken From Him; But It Is

Not A Power To Declare Imperatively That They Shall Be Taken From

Him.

Magna Carta Does Not Provide That The Judgments Of The Peers Shall

Be Executed; But Only That No Other Than Their Judgments Shall

Ever Be Executed,  So Far As To Take A Party's Goods,  Rights,  Or

Person,  Thereon.

A Judgment Of The Peers May Be Reviewed,  And Invalidated,  And A

New Trial Granted. So That Practically A Jury Has No Absolute

Power To Take A Party's Goods,  Rights,  Or Person. They Have Only

An Absolute Veto Upon Their Being Taken By The Government. The

Government Is Not Bound To Do Everything That A Jury May Adjudge.

It Is Only Prohibited From Doing Anything   (That Is,  From Taking

A Party's Goods,  Rights,  Or Person)   Unless A Jury Have First

Adjudged It To Be Done.

But It Will,  Perhaps,  Be Said,  That If An Erroneous Judgment Of

One Jury Should Be Reaffirmed By Another,  On A New Trial,  It Must

Then Be Executed. But Magna Carta Does Not Command Even This 

Although It Might,  Perhaps,  Have Been Reasonably Safe For It To

Have Done So   For If Two Juries Unanimously Affirm The Same

Thing,  After All The Light And Aid That Judges And Lawyers Can

Afford Them,  That Fact Probably Furnishes As Strong A Presumption

In Favor Of The Correctness Of Their Opinion,  As Can Ordinarily Be

Obtained In Favor Of A Judgment,  By Any Measures Of A Practical

Character For The Administration Of Justice. Still,  There Is

Nothing In Magna Carta That Compels The Execution Of Even A

Second Judgment Of A Jury. The Only Injunction Of Magna Carta

Upon The Government,  As To What It Shall Do,  On This Point,  Is That It

Shall "Do Justice And Right," Without Sale,  Denial,  Or Delay. But

This Leaves The Government All Power Of Determining What Is

Justice And Right,  Except That It