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

"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 Of Punishment May Not Have Been Fixed by

Legem Terrae,  The Common Law,  Instead Of Its Being fixed by The

Jury.

I Think We Have No Evidence Whatever That,  At The Time Of Magna

Carta,  Or Indeed at Any Other Time,  Lex Terrae,  The Common Law,

Fixed the Punishment In cases Where The Question Of Guilt Was Tried

By A Jury; Or,  Indeed,  That It Did In any Other Case. Doubtless Certain

Punishments Were Common And Usual For Certain Offences; But I Do

Not Think It Can Be Shown That The Common Law,   The  Lex Terrae, 

Which The King was Sworn To Maintain,  Required any One Specific

Punishment,  Or Any Precise Amount Of Punishment,  For Any One

Specific Offence. If Such A Thing be Claimed,  It Must Be Shown,  For

It Cannot Be Presumed. In fact,  The Contrary Must Be Presumed,

Because,  In the Nature Of Things,  The Amount Of Punishment Proper

To Be Inflicted on Any Particular Case,  Is A Matter Requiring the

Exercise Of Discretion At The Time,  In order To Adapt It To The Moral

Quality Of The Offence,  Which Is Different In each Case,  Varying with

The Mental And Moral Constitutions Of The Offenders,  And The

Circumstances Of Temptation Or Provocation. And Magna Carta

Recognizes This Principle Distinctly,  As Has Before Been Shown,  In

Providing that Freemen,  Merchants,  And Villeins,  "Shall Not Be

Amerced for A Small Crime,  But According to The Degree Of The

Crime; And For A Great Crime In proportion To The Magnitude Of It,"

And That "None Of The Aforesaid Amercements Shall Be Imposed (Or

Assessed) But By The Oaths Of Honest Men Of The Neighborhood;"

And That "Earl And Barons Shall Not Be Amerced but By Their Peers,

And According to The Quality Of The Offence."

All This Implies That The Moral Quality Of The Offence Was To Be

Judged of At The Rial,  And That The Punishment Was To Be Fixed by

The Discretion Of The Peers,  Or Jury,  And Not By Any Such Unvarying

Rule As A Common Law Rule Would Be.

I Think,  Therefore,  It Must Be Conceded that,  In all Cases,  Tried by A

Jury,  Magna Carta Intended that The Punishment Should Be Fixed by

The Jury,  And Not By The Common Law,  For These Several Reasons.

1. It Is Uncertain Whether The Common Law Fixed the Punishment Of

Any Offence Whatever.

2. The Words  "Per Judicium Parium Suorum," According to The

Sentence Of His Peers,   Imply That The Jury Fixed the Sentence In

Some  Cases Tried by Them; And If They Fixed the Sentence In some

Cases,  It Must Be Presumed they Did In all,  Unless The Contrary Be

Clearly Shown.

3. The Express Provisions Of Magna Carta,  Before Adverted to,  That

No Amercements,  Or Fines,  Should Be Imposed upon. Freemen,

Merchants,  Or Villeins,  "But By The Oath Of Honest Men Of The

Neighborhood," And "According to The Degree Of The Crime," And

That "Earls And Barons Shout Not Be Amerced but By Their Peers,  And

According to The Quality Of The Offence,"  Proves That,  At Least,  There

Was No Common Law Fixing the Amount Of  Fines,  Or,  If There Were,

That It Was To Be No Longer In force. And If There Was No Common

Law Fixing the Amount Of Fines,  Or If It Was To Be No Longer In force,

It Is Reasonable To Infer,  (In The Absence Of All Evidence To The

Contrary,) Either That The Common Law Did Not Fix The Amount Of

Any Other Punishment,  Or That It Was To Be No Longer In force For

That Purpose. [25]

Under The Saxon Laws,  Fines,  Payable To The Injured party,  Seem To

Have Been The Common Punishments For All Offences. Even Murder

Was Punishable By A Fine Payable To The Relatives Of The Deceased.

The Murder Of The King even Was Punishable By Fine. When A

Criminal Was Unable To Pay His One,  His Relatives Often Paid It For

Him. But If It Were Not Paid,  He Was Put Out Of The Protection Of The

Law,  And The Injured parties,  (Or,In The Case Of Murder,  The Kindred

Of The Deceased,)Were Allowed to Inflict Such Punishment As They

Pleased. And If The Relatives Of The Criminal Protected him,  It Was

Lawful To Take Vengeance On Them Also. Afterwards The Custom

Grew Up Of Exacting fines Also To The King as A Punishment For

Offences.  [26]

And This Latter Was,  Doubtless,  The Usual Punishment At The Time Of

Magna Carta,  As Is Evidenced by The Fact That For Many Years

Immediately Following magna Carta,  Nearly Or Quite All Statutes

That Prescribed any Punishment At All,  Prescribed that The Offender

Should "Be Grievously  Amerced," Or "Pay A Great Fine To The King,"

Or A "Grievous Ransom,"     With The Alternative In some Cases

(Perhaps Understood In all) Of Imprisonment,  Banishment,  Or

Outlawry,  In case Of Non-Payment. [27]

Judging,  Therefore,  From The Special Provisions In magna Carta,

Requiring fines,  Or Amercements,  To Be Imposed only By Juries,

(Without Mentioning any Other Punishments;) Judging,  Also,  From

The Statutes Which Immediately Followed magna Carta,  It Is

Probable That,  The Saxon Custom Of Punishing all,  Or Nearly All,

Offences By Fines,  (With The Alternative To The Criminal Of Being

Imprisoned,  Banished,  Or Outlawed,  And Exposed to Private

Vengeance,  In case Of Non-Payment,) Continued until The Time Of

Magna Carta; And That In providing expressly That Fines Should Be

Fixed by The Juries,  Magna Carta Provided for Nearly Or Quite All

The Punishments That Were Expected to Be Inflicted; That If There

Were To Be Any Others,  They Were To Be Fixed by The Juries; And

Consequently That Nothing was Left To Be Fixed by "Legem Terrae."

But Whether The Common Law Fixed the Punishment Of Any

Offences,  Or Not,  Is A Matter Of Little Or No Practical Importance At

This Day; Because We Have No Idea Of Going back