An Essay On The Trial By Jury by Lysander Spooner (free ebook reader for android TXT) 📕

There,  And That Not For The Service Of Their Persons,  But For The

Service Of Their Fees. But Women,  Infants Within The Age Of

Twenty-One Years,  Deaf,  Dumb,  Idiots,  Those Who Are Indicted or

Appealed of Mortal Felony,  Before They Be Acquitted,  Diseased

Persons,  And Excommunicated persons Are Exempted from Doing

Suit."  Mirror Of Justices,  50   51.

In The Section "Of The Sheriff'S Turns," It Is Said:

"The Sheriff'S By Ancient Ordinances Hold Several Meetings Twice

In The Year In every Hundred; Where All The Freeholders Within The

Hundred are Bound To Appear For The Service Of Their Fees." 

Mirror Of Justices,  50.

The Following statute Was Passed by Edward I.,  Seventy Years After

Magna Carta:

"Forasmuch Also As Sheriffs,  Hundreders,  And Bailiffs Of

Liberties,  Have Used to Grieve Those Which Be Placed under Them,

Putting in assizes And Juries Men Diseased and Decrepit,  And

Having continual Or Sudden Disease; And Men Also That Dwelled not

In The Country At The Time Of The Summons; And Summon Also An

Unreasonable Number Of Jurors,  For To Extort Money From Some Of

Them,  For Letting them Go In peace,  And So The Assizes And Juries

Pass Many Times By Poor Men,  And The Rich Abide At Home By

Reason Of Their Bribes; It Is Ordained that From Henceforth In one

Assize No More Shall Be Summoned than Four And Twenty; And

Old Men Above Three Score And Ten Years,  Being continually Sick, 

Or Being diseased at The Time Of The Summons,  Or Not Dwelling in

That Country,  Shall Not Be Put In juries Of Petit Assizes."   St. 13

Edward I.,  Ch. 38. (1285.)

Although This Command To The Sheriff'S And Other Officers,  Not To

Summon,  As Jurors,  Those Who,  From Age And Disease,  Were

Physically Incapable Of Performing the Duties,  May Not,  Of Itself,

Afford Any Absolute Or Legal Implication,  By Which We Can

Determine Precisely Who Were,  And Who Were Not,  Eligible As Jurors

At Common Law,  Yet The Exceptions Here Made Nevertheless Carry A

Seeming confession With Them That,  At Common Law,  All Male

Adults Were Eligible As Jurors.

But The Main Principle Of The Feudal System Itself,  Shows That All

The Full And Free Adult Male Members Of The State   That Is,  All

Who Were Free Born,  And Had Not Lost Their Civil Rights By Crime,

Or Otherwise   Must,  At Common Law,  Have Been Eligible As Jurors.

What Was That Principle? It Was,  That The State Rested for Support

Upon The Land,  And Not Upon Taxation Levied upon The People

Personally. The Lands Of The Country Were Considered the Property

Of The State,  And Were Made To Support The State In this Way: A

Portion Of Them Was Set Apart To The King,  The Rents Of Which Went

To Pay His Personal And Official Expenditures,  Not Including the

Maintenance Of Armies,  Or The Administration Of Justice. War And

The Administration Of Justice Were Provided for In the Following

Manner. The Freemen,  Or The Free-Born Adult Male Members Of The

State   Who Had Not Forfeited their Political Rights   Were

Entitled to Land Of Right,  (Until All The Land Was Taken Up,) On

Condition Of Their Rendering certain Military And Civil Services,

To The State. The Military Services Consisted in serving

Personally As Soldiers,  Or Contributing an Equivalent In horses,

Provisions,  Or Other Military Supplies. The Civil Services

Consisted,  Among Other Things,  In serving as Jurors (And,  It Would

Appear,  As Witnesses) In the Courts Of Justice. For These Services

They Received no Compensation Other Than The Use Of Their Lands.

In This Way The State Was Sustained; And The King had No Power To

Levy Additional Burdens Or Taxes Upon The People. The Persons

Holding lands On These Terms Were Called freeholders   In later

Times Freemen   Meaning free And Full Members Of The State.

Now,  As The Principle Of The System Was That The Freeholders Held

Their Lands Of The State,  On The Condition Of Rendering these

Military And Civil Services As Rents For Their Lands,  The

Principle Implies That All The Freeholders Were Liable To These

Rents,  And Were Therefore Eligible As Jurors. Indeed,  I Do Not

Know That It Has Ever Been Doubted that,  At Common Law,  All The

Freeholders Were Eligible As Jurors. If All Had Not Been Eligible,

We Unquestionably Should Have Had Abundant Evidence Of The

Exceptions. And If Anybody,  At This Day,  Allege Any Exceptions,

The Burden Will Be On Him To Prove Them. The Presumption Clearly

Is That All Were Eligible.

The First Invasion Which I Find Made,  By The English Statutes,

Upon This Common Law Principle,  Was Made In i285,  Seventy Years

After Magna Carta. It Was Then Enacted as Follows:

"Nor Shall,  Any Be Put In assizes Or Juries,  Though They Ought To

Be Taken In their Own Shire,  That Hold A Tenement Of Less Than The

Value Of Twenty Shillings Yearly. And If Such Assizes And Juries

Be Taken Out Of The Shire,  No One Shall Be Placed in them Who

Holds A Tenement Of Less Value Than Forty Shillings Yearly At The

Least,  Except Such As Be Witnesses In deeds Or Other Writings,

Whose Presence Is Necessary,  So That They Be Able To Travel." 

St. 13 .Edward I.,  Ch. 38. (1285.)

The Next Invasion Of The Common Law,  In this Particular,  Was Made

In 1414,  About Two Hundred years After Magna Carta,  When It Was

Enacted:

"That No Person Shall Be Admitted to Pass In any Inquest Upon

Trial Of The Death Of A Man,  Nor In any Inquest Betwixt Party And

Party In plea Real,  Nor In plea Personal,  Whereof The Debt Or The

Damage Declared amount To Forty Marks,  If The Same Person Have

Not Lands Or Tenements Of The Yearly Value Of Forty Shillings Above

All Charges Of The Same."   2 Henry V.,  St. 2,  Ch. 3. (1414.)

Other Statutes On This Subject Of The Property Qualifications Of

Jurors,  Are Given In the Note. [4]

From These Statutes It Will Be Seen That,  Since 1285,  Seventy

Years After Magna Carta,  The Common Law Right Of All Free British

Subjects To Eligibility As Jurors Has Been Abolished,  And  The

Qualifications Of Jurors Have Been Made A Subject Of Arbitrary

Legislation. In other Words,  The Government Has Usurped the

Authority Of Selecting the Jurors That Were To Sit In judgment

Upon Its Own Acts. This Is Destroying the Vital Principle Of The

Trial By Jury Itself,  Which Is That The Legislation Of The Government

Shall Be Subjected to The Judgment Of A Tribunal,  Taken

Indiscriminately From The Whole People,  Without Any Choice By The

Government,  And Over Which The Government Can Exercise No

Control. If The Government Can Select The Jurors,  It Will,  Of Course,

Select Those Whom It Supposes Will Be Favorable To Its Enactments.

And An Exclusion Of Any Of The Freemen From Eligibility Is A

Selection Of Those Not Excluded.

It Will Be Seen,  From The Statutes Cited,  That The Most Absolute

Authority Over The Jury Box   That Is,  Over The Right Of The

People To Sit In juries   Has Been Usurped by The Government; That

The Qualifications Of Jurors Have Been Repeatedly Changed,  And

Made To Vary From A Freehold Of Ten Shillings Yearly,  To One Of

"Twenty Pounds By The Year At Least Above Reprises." They Have

Also Been Made Different,  In the Counties Of Southampton,  Surrey,

And Sussex,  From What They Were In the Other Counties; Different

In Wales From What They Were In england; And Different In the City

Of London,  And In the County Of Middlesex,  From What They Were In

Any Other Part Of The Kingdom.

But This Is Not All. The Government Has Not Only Assumed

Arbitrarily To Classify The People,  On The Basis Of Property,  But

It Has Even Assumed to Give To Some Of Its Judges Entire And

Absolute Personal Discretion In the Selection Of The Jurors To Be

Impaneled in criminal Cases,  As The Following statutes Show.

"Be It Also Ordained and Enacted by The Same Authority,  That All

Panels Hereafter To Be Returned,  Which Be Not At The Suit Of Any

Party,  That Shall Be Made And Put In afore Any Justice Of Gaol

Delivery Or Justices Of Peace In their Open Sessions To Inquire

For The King,  Shall Hereafter Be Reformed by Additions And Taking

Out Of Names Of Persons By Discretion Of The Same Justices Before

Whom Such Panel Shall Be Returned; And The Same Justices Shall

Hereafter Command The Sheriff,  Or His Ministers In his Absence,  To

Put Other Persons In the Same Panel By Their Discretions; And That

Panel So Hereafter To Be Made,  To Be Goodand Lawful.  This Act To

Endure Only To The Next Parliament "   11 Henry Vii.,  Ch. 24,  Sec.

6. (1495.)

This Act Was Continued in force By 1 Henry Viii,  Ch. 11,  (1509,)

To The End Of The Then Next Parliament.

It Was Reenacted,  And Made Perpetual,  By 3 Henry Viii.,  Ch. 12.

(1511.)

These Acts Gave Unlimited authority To The King'S' Justices To

Pack Juries At Their Discretion; And Abolished the Last Vestige Of

The Common Law Right Of The People To Sit As Jurors,  And Judge Of

Their Own Liberties,  In the Courts To Which The Acts Applied.

Yet,  As Matters Of Law,  These Statutes Were No More Clear

Violations Of The Common Law,  The Fundamental And Paramount

"Law Of The Land," Than Were Those Statutes Which Affixed the

Property Qualifications Before Named; Because,  If The King,  Or The

Government,  Can Select The Jurors On The Ground Of Property,  It

Can Select Them On Any Other Ground Whatever.

Any Infringement Or Restriction Of The Common Law Right Of The

Whole Body Of The Freemen Of The Kingdom To Eligibility As Jurors,

Was Legally An Abolition Of The Trial By Jury Itself. The Juries

No Longer Represented "The Country," But Only A Part Of The

Country; That Part,  Too,  On Whose Favor The Government Chose To

Rely For The Maintenance Of Its Power,  And Which It Therefore