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

Tenements,  Or Hereditaments,  To The Clear Yearly Value Of Four

Pounds At The Least."   27 Elizabeth,  Ch. 6. (1585.)

In 1664-5 It Was Enacted "That All Jurors (Other Than Strangers

Upon Trials Per Medietatem Linquae) Who Are To Be Returned for The

Trials Of Issues Joined in any Of (His) Majesty'S Courts Of King'S

Bench,  Common Pleas,  Or The Exchequer,  Or Before Justices Of

Assize,  Nisi Prius,  Oyer And Terminer,  Gaol Delivery,  Or General

Or Quarter Sessions Of The Peace From And After The Twentieth Day

Of April,  Which Shall Be In the Year Of Our Lord One Thousand Six

Hundred and Sixty-Five,  In any County Of This Realm Of England,

Shall Every Of Them Then Have,  In their Own Name,  Or In trust For

Them,  Within The Same County,  Twenty Pounds,  By The Year,  At

Least,  Above Reprises,  In their Own Or Their Wives Right,  Of

Freehold Lands,  Or Of Ancient Demesne,  Or Of Rents In fee,

Fee-Tail,  Or For Life. And That In every County Within The

Dominion Of Wales Every Such Juror Shall Then Have,  Within The

Some,  Eight Pounds By The Year,  At The Least,  Above Reprises,  In

Manner Aforesaid. All Which Persons Having such Estate As

Aforesaid Are Hereby Enabled and Made Liable To Be Returned and

Serve As Jurors For The Trial Of Issues Before The Justices

Aforesaid,  Any Law Or Statute To The Contrary In any Wise

Notwithstanding,"   16 And 17 Charles Ii.,  Ch. 5. (1664-5,)

By A Statute Passed in 1692,  Jurors In england Are To Have Landed

Estates Of The Value Of Ten Pounds A Year,  And Jurors In wales To

Have Similar Estates Of The Realm Of Six Pounds A Year.   4 And 5

William And Mary,  Ch. 24,  Sec. 14,  (1692,)

By The Same Statute,  (Sec. 18,) Persons May Be Returned to Serve

Upon The Tales In any County Of England,  Who Shall Have Within The

Same County,  Five Pounds By The Year,  Above Reprises,  In the

Manner Aforesaid.

By St. 3 George Ii.,  Ch. 25,  Sec. 10,  20,  No One Is To Be A Juror

In London,  Who Shall Not Be "An Householder Within The Said City,

And Have Lands,  Tenements,  Or Personal Estate,  To The Value Of One

Hundred pounds."

By Another Statute,  Applicable Only To The County Of Middlesex,  It

Is Enacted,  "That All Leaseholders,  Upon Leases Where The Improved

Rents Or Value Shall Amount To Fifty Pounds Or Upwards Per Annum,

Over And Above All Ground Rents Or Other Reservations Payable By

Virtue Of The Said Leases,  Shall Be Liable And Obliged to Serve

Upon Juries When They Shall Be Legally Summoned for That

Purpose.,"   4 George Ii.,  Ch. 7,  Sec,  3. (1731.)

[5] A Mark Was Thirteen Shillings And Four Pence.

[6] Suppose These Statutes,  Instead Of Disfranchising all Whose

Freeholds Were Of Less Than The Standard Value Fixed by The

Statutes,  Had Disfranchised all Whose Freeholds Were Of Greater

Value Than The Same Standard   Would Anybody Ever Have Doubted

That Such Legislation Was Inconsistent With The English

Constitution; Or That It Amounted to An Entire Abolition Of The

Trial By Jury? Certainly Not. Yet It Was As Clearly Inconsistent

With The Common Law,  Or The English Constitution,  To Disfranchise

Those Whose Freeholds Fell Below Any Arbitrary Standard Fixed by

The Government,  As It Would Have Been To Disfranchise All Whose

Freeholds Rose Above That Standard.

[7] Lingard Says: "These Compurgators Or Jurors * * Were

Sometimes * * Drawn By Lot."   1 Lingard'S History Of England, 

P. 300.

] Chapter 4,  P. 120,  Note.

[9] Editor'S Note: (The Following was Not In spooner'S Addition)

With The Ratification Of Article Xix  Of Amendment To The

Constitution For The United states,  August 20,  1920,  Women Were

Fully Enfranchised with All Rights Of Voting and Jury Service In all States

Of The Union.

It Is A Principle Of Magna Carta,  And Therefore Of The Trial By

Jury,  (For All Parts Of Magna Carta Must Be Construed together,)

That No Judge Or Other Officer Appointed by The King,  Shall

Preside In jury Trials,  In criminal Cases,  Or "Pleas Of The

Crown."

This Provision Is Contained in the Great Charters Of Both John

And Henry,  And Is Second In importance Only To The Provision

Guaranteeing the Trial By Jury,  Of Which It Is Really A Part.

Consequently,  Without The Observance Of This Prohibition,  There

Can Be No Genuine Or Legal   That Is,  Common Law   Trial By Jury.

At The Common Law,  All Officers Who Held Jury Trials,  Whether In

Civil Or Criminal Cases,  Were Chosen By The People. [1]

But Previous To Magna Carta,  The Kings Had Adapted the Practice

Of Sending officers Of Their Own Appointment,  Called justices,

Into The Counties,  To Hold Jury Trials In some Cases; And Magna

Carta Authorizes This Practice To Be Continued so Far As It

Relates To Three Kinds Of Civil Actions,  To Wit: "Novel

Disseisin,  Mort De Ancestor,  And Darrein Presentment;" [2] But

Specially Forbids Its Being extended to Criminal Cases,  Or Pleas

Of The Crown.

This Prohibition Is In these Words:

"Nullus Vicecomes,  Constabularius,  Coronator,  Vel Alii Balivi

Nostri,  Teneant Placita Coronae Nostrae." (No Sheriff,  Constable,

Coroner,  Or Other Our Bailiffs,  Shall Hold Pleas Of Our Crown.) 

John'S Charter,  Ch. 53,  Henry'S Ditto,  Ch. 17.

Some Persons Seem To Have Supposed that This Was A Prohibition

Merely Upon Officers Bearing the Specific Names Of "Sheriffs,

Constables,  Coroners And Bailiffs,"  To Hold Criminal Trials. But

Such Is Not The Meaning. If It Were,  The Name Could Be Changed,

And The Thing retained; And Thus The Prohibition Be Evaded. The

Prohibition Applies (As Will Presently Be Seen) To All Officers

Of The King whatsoever; And It Sets Up A Distinction Between

Officers Of The King,   ("Our Bailiffs,") And Officers Chosen By

The People.

The Prohibition Upon The King'S Justices Sitting in criminal

Trials,  Is Included in the Words "Vel Alii Balivi Nostri," (Or

Other Our Bailiffs.) The Word  Bailif Was Anciently A Sort Of

General Name For Judicial Officers And Persons Employed in and

About The Administration Of Justice. In modern Times Its Use,  As

Applied to The Higher Grades Of Judicial Officers,  Has Been

Superseded by Other Words; And It Therefore Now,  More Generally,

If Not Universally,  Signifies An Executive Or Police Officer,  A

Servant Of Courts,  Rather Than One Whose Functions Are Purely

Judicial.

The Word Is A French Word,  Brought Into England By The Normans.

Coke Says,  "Baylife Is A French Word,  And Signifies An Officer

Concerned in the Administration Of Justice Of A Certain Province;

And Because A Sheriff Hath An Office Concerning the

Administration Of Justice Within His County,  Or Bailiwick,

Therefore Be Called his County Baliva Sua,  (His Bailiwick.)

"I Have Heard Great Question Made What The True Exposition Of

This Word Balivus Is. In the Statute Of Magna Carta,  Cap. 28,  The

Letter Of That Statute Is,  Nullus Balivus De Eaetero Ponat

Aliqnem Ad Legem Manifestam Nec Ad Juramentum Simplici Loquela

Sua Sine Testibus Fidelibus Ad Hoc Inductis." (No Bailiff From

Henceforth Shall Put Any One To His Open Law,  Nor To An Oath {Of

Self-Exculpation) Upon His Own Simple Accusation,  Or Complaint,

Without Faithful Witnesses Brought In for The Same.) "And Some

Have Said That Balivus In this Statute Signifieth Any Judge; For

The Law Must Be Waged and Made Before The Judge. And This Statute

(Say They) Extends To The Courts Of Common Pleas,  King'S Bench,

&C;.,  For They Must Bring with Them Fideles Testes,  (Faithful

Witnesses,) &C;.,  And So Hath Been The Usage To This Day."   1

Coke'S Inst.,  168 B.

Coke Makes Various References,  In his Margin To Bracton,  Fleta,

And Other Authorities,  Which I Have Not Examined,  But Which,  I

Presume,  Support The Opinion Expressed in this Quotation.

Coke Also,  In another Place,  Under The Head Of The Chapter Just

Cited from Magna Carta,  That "No Bailiff Shall Put Any Man To His

Open Law," &C;.,  Gives The Following commentary Upon It,  From The

Mirror Of Justices,  From Which It Appears That In the Time Of

Edward I.,  (1272 To 1307,) This Word Balivus Was Understood To

Include All Judicial,  As Well As All Other,  Officers Of The King.

The Mirror Says: "The Point Which Forbiddeth That No Bailiff Put

A Freeman To His Oath Without Suit,  Is To Be Understood In this

Manner,    That No Justice,  No Minister Of The King,  Nor Other

Steward,  Nor Bailiff,  Have Power To Make A Freeman Make Oath,  (Of

Self-Exculpation,) Without The King'S Command,  [3] Nor Receive

Any Plaint,  Without Witnesses Present Who Testify The Plaint To

Be True."   Mirror Of Justices,  Ch. 5,  Sec. 2,  P. 257.

Coke Quotes This Commentary,  (In The Original French,) And Then

Endorses It In these Words:

"By This It Appeareth,  That Under This Word Balivus,  In this Act,

Is Comprehended every Justice,  Minister Of The King,  Steward,  And

Bailiff."   2 Inst.,  44.

Coke Also,  In his Commentary Upon This Very Chapter Of Magna

Carta,  That Provides That "No Sheriff; Constable; Coroner,  Or

Other Our Bailiffs,  Shall Hold Pleas Of Our Crown," Expresses The

Opinion That It "Is A General Law," (That Is,  Applicable To All

Officers Of The King,) " By Reason Of The Words Vel Alii Balivi

Nostri,  (Or Other Our Bailiffs,) Under Which Words Are

Comprehended all Judges Or Justices Of Any Courts Of Justice.

"And He Cites A Decision In the King'S Bench,  In the 17Th Year Of

Edward I.,  (1289,) As Authority; Which Decision He Calls "A

Notable And Leading judgment."   2 Inst.,  30   1.

And Yet Coke,  In flat Contradiction Of This Decision,  Which He

Quotes With Such Emphasis And Approbation,  And In flat

Contradiction Also Of The Definition He Repeatedly Gives Of The

Word Balivus Showing that It Embraced all Ministers Of The King

Whatsoever,  Whether High Or Low,  Judicial Or Executive,

Fabricates An