An Essay on the Trial by Jury Part 17

If it still be said that juries would disagree, as to what was natural justice, and that one jury would decide one way, and another jury another; the answer is, that such a thing is hardly credible, as that twelve men, taken at random from the people at large, should _unanimously_ decide a question of natural justice one way, and that twelve other men, selected in the same manner, should _unanimously_ decide the same question the other way, _unless they were misled by the justices_. If, however, such things should sometimes happen, from any cause whatever, the remedy is by appeal, and new trial.

[Footnote 73: Judges do not even live up to that part of their own maxim, which requires jurors to try the matter of fact. By dictating to them the laws of evidence,--that is, by dictating what evidence they may hear, and what they may not hear, and also by dictating to them rules for weighing such evidence as they permit them to hear,--they of necessity dictate the conclusion to which they shall arrive. And thus the court really tries the question of fact, as well as the question of law, in every cause. It is clearly impossible, in the nature of things, for a jury to try a question of fact, without trying every question of law on which the fact depends.]

[Footnote 74: Most disagreements of juries are on matters of fact, which are admitted to be within their province. We have little or no evidence of their disagreements on matters of natural justice. The disagreements of _courts_ on matters of law, afford little or no evidence that juries would also disagree on matters of law--that is, _of justice_; because the disagreements of courts are generally on matters of _legislation_, and not on those principles of abstract justice, by which juries would be governed, and in regard to which the minds of men are nearly unanimous.]

[Footnote 75: This is the principle of all voluntary a.s.sociations whatsoever. No voluntary a.s.sociation was ever formed, and in the nature of things there never can be one formed, for the accomplishment of any objects except those in which all the parties to the a.s.sociation are agreed. Government, therefore, must be kept within these limits, or it is no longer a voluntary a.s.sociation of all who contribute to its support, but a mere tyranny established by a part over the rest.

All, or nearly all, voluntary a.s.sociations give to a majority, or to some other portion of the members less than the whole, the right to use some _limited_ discretion as to the means to be used to accomplish the ends in view; but _the ends themselves to be accomplished_ are always precisely defined, and are such as every member necessarily agrees to, else he would not voluntarily join the a.s.sociation.

Justice is the object of government, and those who support the government, must be agreed as to the justice to be executed by it, or they cannot rightfully unite in maintaining the government itself.]

[Footnote 76: Jones on Bailments, 133.]

[Footnote 77: Kent, describing the difficulty of construing the written law, says:

"Such is the imperfection of language, and the want of technical skill in the makers of the law, that statutes often give occasion to the most perplexing and distressing doubts and discussions, arising from the ambiguity that attends them. It requires great experience, as well as the command of a perspicuous diction, to frame a law in such clear and precise terms, as to secure it from ambiguous expressions, and from all doubts and criticisms upon its meaning."--_Kent_, 460.

The following extract from a speech of Lord Brougham, in the House of Lords, confesses the same difficulty:

"There was another subject, well worthy of the consideration of government during the recess,--the expediency, _or rather the absolute necessity_, of some arrangement for the preparation of bills, not merely private, but public bills, _in order that legislation might be consistent and systematic, and that the courts might not have so large a portion of their time occupied in endeavoring to construe acts of Parliament, in many cases unconstruable, and in most cases difficult to be construed_."--_Law Reporter_, 1848, p. 525.]

[Footnote 78: This condemnation of written laws must, of course, be understood as applying only to cases where principles and rights are involved, and not as condemning any governmental arrangements, or instrumentalities, that are consistent with natural right, and which must be agreed upon for the purpose of carrying natural law into effect.

These things may be varied, as expediency may dictate, so only that they be allowed to infringe no principle of justice. And they must, of course, be written, because they do not exist as fixed principles, or laws in nature.]

CHAPTER VI.

JURIES OF THE PRESENT DAY ILLEGAL.

It may probably be safely a.s.serted that there are, at this day, no legal juries, either in England or America. And if there are no legal juries, there is, of course, no legal trial, nor "judgment," by jury.

In saying that there are probably no legal juries, I mean that there are probably no juries appointed in conformity with the principles of the _common law_.

The term _jury_ is a technical one, derived from the common law; and when the American const.i.tutions provide for the trial by jury, they provide for the _common law_ trial by jury; and not merely for any trial by jury that the government itself may chance to invent, and call by that name. It is the _thing_, and not merely the _name_, that is guarantied. Any legislation, therefore, that infringes any _essential principle_ of the _common law_, in the selection of jurors, is unconst.i.tutional; and the juries selected in accordance with such legislation are, of course, illegal, and their judgments void.

It will also be shown, in a subsequent chapter,[79] that since Magna Carta, the legislative power in England (whether king or parliament) has never had any const.i.tutional authority to infringe, by legislation, any essential principle of the common law in the selection of jurors. All such legislation is as much unconst.i.tutional and void, as though it abolished the trial by jury altogether. In reality it does abolish it.

What, then, are the _essential principles_ of the common law, controlling the selection of jurors?

They are two.

1. That _all_ the freemen, or adult male members of the state, shall be eligible as jurors.[80]

Any legislation which requires the selection of jurors to be made from a less number of freemen than the whole, makes the jury selected an illegal one.

If a part only of the freemen, or members of the state, are eligible as jurors, the jury no longer represent "the country," but only a part of "the country."

If the selection of jurors can be restricted to any less number of freemen than the whole, it can be restricted to a very small proportion of the whole; and thus the government be taken out of the hands of "the country," or the whole people, and be thrown into the hands of a few.

That, at common law, the whole body of freemen were eligible as jurors is sufficiently proved, not only by the reason of the thing, but by the following evidence:

1. Everybody must be presumed eligible, until the contrary be shown. We have no evidence, that I am aware of, of a prior date to Magna Carta, to _disprove_ that all freemen were eligible as jurors, unless it be the law of Ethelred, which requires that they be elderly[81] men. Since no specific age is given, it is probable, I think, that this statute meant nothing more than that they be more than twenty-one years old. If it meant anything more, it was probably contrary to the common law, and therefore void.

2. Since Magna Carta, we have evidence showing quite conclusively that all freemen, above the age of twenty-one years, were eligible as jurors.

The _Mirror of Justices_, (written within a century after Magna Carta,) in the section "_Of Judges_"--that is, _jurors_--says:

"All those who are not forbidden by law may be judges (jurors). To women it is forbidden by law that they be judges; and thence it is, that feme coverts are exempted to do suit in inferior courts. On the other part, a villein cannot be a judge, by reason of the two estates, which are repugnants; persons attainted of false judgments cannot be judges, nor infants, nor any under the age of twenty-one years, nor infected persons, nor idiots, nor madmen, nor deaf, nor dumb, nor parties in the pleas, nor men excommunicated by the bishop, nor criminal persons. * * And those who are not of the Christian faith cannot be judges, nor those who are out of the king's allegiance."--_Mirror of Justices_, 59-60.

In the section "_Of Inferior Courts_," it is said:

"From the first a.s.semblies came consistories, which we now call courts, and that in divers places, and in divers manners; whereof the sheriffs held one monthly, or every five weeks, according to the greatness or largeness of the shires. And these courts are called county courts, _where the judgment is by the suitors_, if there be no writ, and is by warrant of jurisdiction ordinary. The other inferior courts are the courts of every lord of the fee, to the likeness of the hundred courts. * * There are other inferior courts which the bailiffs hold in every hundred, from three weeks to three weeks, _by the suitors of the freeholders of the hundred. All the tenants within the fees are bounden to do their suit 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 sheriffs 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 pa.s.sed 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 a.s.sizes 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 a.s.sizes and juries pa.s.s many times by poor men, and the rich abide at home by reason of their bribes; it is ordained that from henceforth in one a.s.size 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 pet.i.t a.s.sizes."--_St. 13 Edward I._, ch. 38. (1285.)

Although this command to the sheriffs 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 freeborn adult male members of the state--who had not forfeited their political rights--were ent.i.tled 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 1285, seventy years after Magna Carta. It was then enacted as follows:

"Nor shall any be put in a.s.sizes 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 a.s.sizes 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 pa.s.s 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.[82]

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 Suss.e.x, 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 Middles.e.x, from what they were in any other part of the kingdom.

But this is not all. The government has not only a.s.sumed arbitrarily to cla.s.sify the people, on the basis of property, but it has even a.s.sumed to give to some of its judges entire and absolute personal discretion in the selection of the jurors to be impanelled 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 good and lawful_. This act to endure only to the next Parliament."--_11 Henry VII._, ch. 24, sec. 6. (1495.)