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

Into Execution.

Doing A Thing By Law,  Or According To Law,  Is Only Carrying The Law

Into Execution. And Punishing A Man By,  Or According To,  The

Sentence Or Judgment Of His Peers,  Is Only Carrying That Sentence Or

Judgment Into Execution.

If These Reasons Could Leave Any Doubt That The Word Per Is To Be

Translated According To,  That Doubt Would Be Removed By The Terms

Of An Antecedent Guaranty For The Trial By Jury,  Granted By The

Emperor Conrad,  Of Germany,   [17] Two Hundred Years Before

Magna Carta. Blackstone Cites It As Follows:   (3 Blackstone,  350.)

"Nemo Beneficium Suum Perdat,  Nisi Secundum Consuetu-Dinem

Antecessorum Nostrorum,  Et Judicium Parium Suorum." That Is,  No

One Shall Lose His Estate,   [18] Unless According To ("Secundum")

The Custom (Or Law) Of Our Ancestors,  And (According To) The

Sentence (Or Judgment) Of His Peers.

The Evidence Is Therefore Conclusive That The Phrase Per Judicium

Parian Suorum Means According To The Sentence Of His Peers; Thus

Implying Hat The Jury,  And Not The Government,  Are To Fix The

Sentence.

If Any Additional Proof Were Wanted That Juries Were To Fix The

Sentence,  It Would Be Found In The Following Provisions Of Magna

Carta,  Viz.:

"A Freeman Shall Not Be Amerced For A Small Crime,  (Delicto,) But

According To The Degree Of The Crime; And For A Great Crime In

Proportion To The Magnitude Of It,  Saving To Him His Contenement;

[19] And After The Same Manner A Merchant,  Saving To Him His

Merchandise. And A Villein Shall Be Amerced After The Same

Manner,  Aving To Him His Waynage,   [20] If He Fall Under Our Mercy;

And None Of The Aforesaid Amercements Shall Be Imposed,  (Or

Assessed,  Ponatur,) But By The Oath Of Honest Men Of The

Neighborhood. Earls And Barons Shall Not Be Amerced But By Their

Peers,  And According To The Degree Of Their Crime." [21]

Pecuniary Punishments Were The Most Common Punishments At

That Day,  And The Foregoing Provisions Of Magna Carta Show That

The Amount Of Those Punishments Was To Be Fixed By The Jury.

Fines Went To The King,  And Were A Source Of Revenue; And If The

Amounts Of The Fines Had Been Left To Be Fixed By The King,  He

Would Have Had A Pecuniary Temptation To Impose Unreasonable

And Oppressive Ones. So,  Also,  In Regard To Other Punishments Than

Fines. If It Were Left To The King To Fix The Punishment,  He Might

Often Have Motives To Inflict Cruel And Oppressive Ones. As It Was

The Object Of The Trial By Jury To Protect The People Against All

Possible Oppression From The King,  It Was Necessary That The Jury,

And Not The King,  Should Fix The Punishments. [22]

"Legale."

The Word "Legale," In The Phrase "Per Legale Judicium Parium

Suorum,"Doubtless Means Two Things.1. That The Sentence Must Be

Given In A Legal Manner; That Is,  By The Legal Number Of Jurors,

Legally Empanelled And Sworn To Try The Cause; And That They Give

Their Judgment Or Sentence After A Legal Trial,  Both In Form And

Substance,  Has Been Had. 2. That The Sentence Shall Be For A Legal

Cause Or Offence. If,  Therefore,  A Jury Should Convict And Sentence A

Man,  Either Without Giving Him A Legal Trial,  Or For An Act That Was

Not Really And Legally Criminal,  The Sentence Itself Would Not Be

Legal; And Consequently This Clause Forbids The King To Carry Such A

Sentence Into Execution; For The Clause Guarantees That He Will

Execute No Judgment Or Sentence,  Except It Be Legale Judicium,A

Legal Sentence. Whether A Sentence Be A Legal One,  Would Have To

Be Ascertained By The King Or His Judges,  On Appeal,  Or Might Be

Judged Of Informally By The King Himself.

The Word "Legale"Clearly Did Not Mean That The Judicium Parium

Suorum (Judgment Of His Peers) Should Be A Sentence Which Any

Law (Of The King) Should Require The Peers To Pronounce; For In That

Case The Sentence Would Not Be The Sentence Of The Peers,  But Only

The Sentence Of The Law,  (That Is,  Of The King); And The Peers Would

Be Only A Mouthpiece Of The Law,  (That Is,  Of The King,) In Uttering

It.

"Per Legem Terrae."

One Other Phrase Remains To Be Explained,  Viz.,  "Per Legem Terrae,"

"By The Law Of The Land."

All Writers Agree That This Means The Common Law.Thus,  Sir

Matthew Hale Says:

"The Common Law Is Sometimes Called,  By Way Of Eminence,  Lex

Terrae,As In The Statute Of Magna Carta,Chap. 29,  Where Certainly

The Common Law Is Principally Intended By Those Words,  Aut Per

Legem Terrae;As Appears By The Exposition Thereof In Several

Subsequent Statutes; And Particularly In The Statute Of 28 Edward

Iii.,  Chap. 3,  Which Is But An Exposition And Explanation Of That

Statute. Sometimes It Is Called Lex Angliae,As In The Statute Of

Merton,  Cap. 9,  "Olurnus Leqes Angliae Mutari,"&C;.,  (We Will That

The Laws Of England Be Not Changed). Sometimes It Is Called Lex Et

Consuetudo Regni(The Law And Custom Of The Kingdom); As In All

Commissions Of Oyer And Terminer; And In The Statutes Of 18

Edward I.,  Cap.  ,  And De Quo Warranto,And Divers Others. But Most

Commonly It Is Called The Common Law,  Or The Common Law Of

England; As In The Statute Articuli Super Chartas,Cap. 15,  In The

Statute 25 Edward Iii.,  Cap. 5,  (4,) And Infinite More Records And

Statutes."   1 Hale's History Of The Common Law,  128.

This Common Law,  Or "Law Of The Land," The King Was Sworn To

Maintain.This Fact Is Recognized By A Statute Made At Westminster,

In 1346,  By Edward Iii.,  Which Commences In This Manner:

"Edward,  By The Grace Of God,  &C;.,  &C;.,  To The Sheriff Of

Stafford,  Greeting: Because That By Divers Complaints Made To Us,

We Have Perceived That The Law Of The Land,  Which We By Oath Are

Bound Fo Maintain,"&C;. St. 20 Edward Iii

The Foregoing Authorities Are Cited To Show To The Unprofessional

Reader,  What Is Well Known To The Profession,  That Legem Terrae,  The

Law Of The Land,Mentioned In Magna Carta,  Was The Common,

Ancient,  Fundamental Law Of The Land,  Which The Kings Were Bound

By Oath To Observe; And That It Did Not Include Any Statutes Or Laws

Enacted By The King Himself,  The Legislative Power Of The Nation.

If The Term Legem Terraehad Included Laws Enacted By The King

Himself,  The Whole Chapter Of Magna Carta,  Now Under Discussion,

Would Have Amounted To Nothing As A Protection To Liberty; Because

It Would Have Imposed No Restraint Whatever Upon The Power Of The

King. The King Could Make Laws At Any Time,  And Such Ones As He

Pleased. He Could,  Therefore,  Have Done Anything He Pleased,  By

The Law Of The Land,As Well As In Any Other Way,  If His Own Laws Had

Been "The Law Of The Land."If His Own Laws Had Been "The Law Of The

Land," Within The Meaning Of That Term As Used In Magna Carta,  This

Chapter Of Magna Carta Woold Have Been Sheer Nonsense,

Inasmuch As The Whole Purpot Of It Would Have Been Simply That

"No Man Shall Be Arrested,  Imprisoned,  Or Deprived Of His Freehold,

Or His Liberties,  Or Free Customs,  Or Outlawed,  Or Exiled,  Or In Any

Manner Destroyed (By The King); Nor Shall The King Proceed Against

Him,  Nor Send Any One Againist Him With Force And Arms,  Unless By

The Judgment Of His Peers,  Or Uness The King Shall Please To Do So."

This Chapter Of Magna Carta Would,  Therefore,  Have Imposed Not

The Slightest Restraint Upon The Power Of The King,  Or Afforded The

Slightest Protection To The Liberties Of The People,  If The Laws Of The

King Had Been Embraced In Theterm Legem Terrae. But If Legem

Terrae Was The Common Law,  Which The King Was Sworn To

Maintain,  Then A Real Restriction Was Laid Upon His Power,  And A Real

Guaranty Given To The People For Their Liberties.

Such,  Then,  Being The Meaning Of Legem Terrae,  The Fact Is

Established That Magna Carta Took An Accused Person Entirely Out

Of The Hands Of The Legislative Power,  That Is,  Of The King; And

Placed Him In The Power And Under The Protection Of His Peers,  And

The Common Law Alone; That,  In Short,  Magna Carta Suffered No

Man To Be Punished For Violating Any Enactment Of The Legislative

Power,  Unless The Peers Or Equals Of The Accused. Freely Consented

To It,  Or The Common Law Authorized It; That The Legislative Power,

Of Itself,  Was Wholly Incompetent To Require The Conviction Or

Punishment Of A Man For Any Offence Whatever.

Whether Magna Carta Allowed Of Any Other Trial Than By Jury.

The Question Here Arises,  Whether "Legem Terrae Did Not Allow Of

Some Other Mode Of Trial Than That By Jury.

The Answer Is,  That,  At The Time Of Magna Carta,  It Is Not Probable,

(For The Reasons Given In The Note,) That Legem Terrae Authorized,  In

Criminal Cases,  Any Other Trial Than The Trial By Jury; But,  If It Did,  It

Certainly Authorized None But The Trial By Battle,  The Trial By Ordeal,

And The Trial By Compurgators. These Were The Only Modes Of Trial,

Except By Jury,  That Had Been Knownin England,  In Criminal Cases,

For Some Centuries Previous To Magna Carta. All Of Them Had

Become Nearly Extinct At The Time Of Magna Carta,  And It Is Not

Probable That They Were Included In "Legem Terrae," As That Term Is

Used In That Instrument. But If They Were Included In It,  They Have

Now Been Long Obsolete,  And Were Such As Neither This Nor Any

Future Age Will Ever Return To. [23]

For All Practical Puposes Of The Present Day,  Therefore,  It May Be

Asserted That Magna Carta Allows No Trial Whatever But Trial By

Jury.

Whether Magna Carta Allowed Sentence To Be Fixed Otherwise Than

By The Jury.

Still Another Question Arises On The Words Legem Terrae,  Viz.,

Whether,  In Cases Where The Question Of Guilt Was Determined By

The Jury,  The Amount