 Chapter 3, Part 6 of an essay on the trial by Jerry. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Read by Beth Ann. Trial by Jerry by Lysander Spooner. Chapter 3, Part 6. Section 6, The Coronation Oath. That the legislation of the king was of no authority over a jury is further proved by the oath taken by the kings at their coronation. This oath seems to have been substantially the same from the time of the Saxon kings down to the 17th century as will be seen from the authorities hereafter given. The purport of the oath is that the king swears to maintain the law of the land, that is, the common law. In other words, he swears to concede and preserve to the English people the laws and customs conceded to them by the ancient, just, and pious English kings, and especially the laws, customs, and liberties conceded to the clergy and people by the illustrious king Edward, and the just laws and customs which the common people have chosen. Klaus Wuguls Allegiet. These are the same laws and customs which were called by the general name of the law of the land or the common law and with some slight additions were embodied in Magna Carta. This oath not only forbids the king to enact any statutes contrary to the common law, but it proves that his statutes could be of no authority over their consciences of a jury. Since it has already been sufficiently shown, it was one part of this very common law itself, that is, of the ancient laws, customs, and liberties mentioned in the oath, that the jury should judge of all questions that came before them according to their own consciences independently of the legislation of the king. It was impossible that this right of the jury could subsist consistently with any right on the part of the king to impose any authoritative legislation upon them. His oath, therefore, to maintain the law of the land or the ancient laws, customs, and liberties, was equivalent to an oath that he would never assume to impose laws upon juries as imperative rules of decision or take from them the right to try all cases according to their own consciences. It is also an admission that he had no constitutional power to do so if he should ever desire it. This oath, then, is conclusive proof that his legislation was of no authority with a jury and that they were under no obligation whatever to enforce it unless it coincided with their own ideas of justice. The ancient coronation oath is printed with the statutes of the realm. Volume 1, page 168, and is as follows. Note, the following is a copy of the original. The following is a copy of the original. The following is a copy of the original. The following is a copy of the original. The following is a copy of the original. The following is a copy of the original. The following is a copy of the original. There are no different types of writings and tools that are used in this content Certe eas ese protegendas, et ad honorem dei corroborandas, cuas wugles i leget, secundum vireis tuas, et respondeat rex, concedo et prometo. End footnote. Translation. Form of the oath of the King of England on his coronation. The Archbishop of Canterbury, to whom of right and custom of the Church of Canterbury, ancient and approved, it pertains to anoint and crown the Kings of England on the day of the coronation of the King, and before the King is crowned, shall propound the underwritten questions to the King. The laws and customs conceded to the English people by the ancient, just, and pious English kings. Will you concede and preserve to the same people with the confirmation of an oath? And especially the laws, customs, and liberties conceded to the clergy and people by the illustrious King Edward, and the King shall answer, I do concede and will preserve them and confirm them by my oath. Will you preserve to the Church of God the clergy and the people entire peace and harmony in God according to your powers? And the King shall answer, I will. In all your judgments, will you cause equal and right justice and discretion to be done in mercy and truth according to your powers? And the King shall answer, I will. Do you concede that the just laws and customs, which the common people have chosen, shall be preserved, and do you promise that they shall be protected by you and strengthened to the honor of God according to your powers? And the King shall answer, I concede and promise. The language used in the last of these questions, do you concede that the just laws and customs, which the common people have chosen, shall be preserved, etc., is worthy of special notice as showing that the laws, which were to be preserved, were not necessarily all the laws which the King enacted, but only such of them as the common people had selected or approved. And how had the common people made known their approbation or selection of these laws, plainly, in no other way than this, that the juries composed of the common people had voluntarily enforced them? The common people had no other legal form of making known their approbation of particular laws. The word concede, too, is an important word. In the English statues it is usually translated grant, as if with an intention to indicate that the laws and customs and liberties of the English people were mere privileges granted to them by the King, whereas it should be translated concede to indicate simply an acknowledgment on the part of a King that such were the laws, customs, and liberties which had been chosen and established by the people themselves and of right belong to them and which he was bound to respect. I will now give some authorities to show that the foregoing oath has, in substance, been the coronation oath from the times of William the Conqueror, 1066, down to the time of James I and probably until 1688. It will be noticed in the quotation from Kellum that he says this oath, or the oath of William the Conqueror, is in sense and substance the very same with that which the Saxon Kings used to take at their coronations. Hale says, Yet the English were very zealous for them, that is, for the laws of Edward the Confessor, no less or otherwise than they are at this time for the Great Charter, insomuch that they were never satisfied till the said laws were reinforced and mingled for the most part with the coronation oath of King William the First and some of his successors. Hale's history of the common law, 157. Also, William, on his coronation, had sworn to govern by the laws of Edward the Confessor, some of which had been reduced into writing, but the greater part consisted of the immemorial customs of the realm. Ditto, page 202, note L. Kellum says, Thus stood the laws of England at the entry of William the First, and it seemed plain that the laws, commonly called the laws of Edward the Confessor, were at that time the standing laws of the kingdom, and considered the great rule of their rights and liberties, and that the English were so zealous for them that they were never satisfied till the said laws were reinforced and mingled for the most part with the coronation oath. Accordingly, we find that this great conqueror, at his coronation on the Christmas Day, seceding his victory, took an oath at the altar of St. Peter Westminster in sense and substance the very same with that which the Saxon kings used to take their coronations. And at Barclamstead, in the fourth year of his reign, in the presence of Launfrank, Archbishop of Canterbury, for the quieting of the people, he swore that he would involubly observe the good and approved ancient laws which had been made by the devout and pious kings of England, his ancestors, and chiefly by King Edward. And we are told that the people then departed in good humour. Kellam's preliminary discourse to the laws of William the Conqueror, see also First Hail's history of the common law, 186. Krabs says that William the Conqueror solemnly swore that he would observe the good and approved laws of Edward the Confessor, Krabs' history of the English law, page 43. The successors of William, up to the time of Magna Carta, probably all took the same oath. According to the custom of the kingdom, although there may be no historical accounts extent of the oath of each separate king, but history tells us especially that Henry the First, Stephen, and Henry II confirmed these ancient laws and customs. It appears also that the barons desired of John, what he afterwards granted by Magna Carta, that the laws and liberties of King Edward, with other privileges granted to the kingdom and Church of England, might be confirmed as they were contained in the Charters of Henry the First, further alleging that at the time of his absolution he promised by his oath to observe these very laws and liberties, Eckerd's history of England, page 105 to 106. It would appear from the following authorities that since Magna Carta the form of the coronation oath has been to maintain the law of the land, meaning that law is embodied in Magna Carta, or perhaps it is more probable that the ancient form has been still observed, but that, as its substance and purport were to maintain the law of the land, this latter form of expression has been used in the instances here cited for motives of brevity and convenience. This supposition is the more probable from the fact that I find no statute prescribing a change in the form of the oath until 1688. That Magna Carta was considered as embodying the law of the land, or common law, is shown by a statute passed by Edward the First, wherein he grants, or concedes, that the Charter of Liberties and the Charter of the Forest shall be kept in every point without breach, and that our justices, sheriffs and mayors, and other ministers, which, under us, have the laws of our land to guide, shall allow their said Charters pleaded before them in judgment in all their points, that is to wit the great Charter as the common law, and the Charter of the Forest, or the wealth of the realm. Note, it would appear from the text that the Charter of Liberties and the Charter of the Forest were sometimes called laws of the land. End footnote. And we will, that if any judgment can be given from henceforth contrary to the points of the Charter of the Forest said by the justices, or by any other ministers that hold pleas before them against the points of the Charters, it shall be undone and holden for naught. 25 Edward the First, Chapter 1 and 2, 1297 Blackstone also says, it is agreed by all our historians that the great Charter of King John was, for the most part, compiled from the ancient customs of the realm, or the laws of Edward the Confessor, by which they usually mean the old common law which was established under our Saxon princes. Blackstone's introduction to the Charters. See Blackstone's Law Tracks, 289. Crabb says, it is admitted on all hands that it, Magna Carta, contains nothing but what was confirmatory of the common law, and the ancient usage of the realm, and is, properly speaking, only an enlargement of the Charter of Henry the First and his successors, crabs history of the English law, page 127. That the coronation oath of the King subsequent to Magna Carta was, in substance, if not in form, to maintain this law of the land, or common law, is shown by a statute of Edward the Third commencing as follows, Edward by the grace of God, etc., etc., to Sheriff of Stafford, greeting, because that by diverse complaints made to us, we have perceived that the law of the land which we by oath are bound to maintain, etc., Statute 20, Edward III, 1346. The following extract from Lord Summoner's tract on Grand Jury shows that the coronation oath continued the same as late as 1616, 400 years after Magna Carta. He says, King James, in his speech to the judges in the Star Chamber, Anno 1616, told them that he had, after many years, resolved to renew his oath, made it his coronation concerning justice, and the promise therein contained for maintaining the law of the land, and in the next page, Safe One says, I was sworn to maintain the law of the land, and therefore had been perjured if I had broken it. God is my judge, I never intended it. Summers on Grand Jury, page 82. In 1688 the coronation oath was changed by act of parliament, and the king was made to swear. To govern the people of this kingdom of England and the dominions therein too belonging, according to the statutes in parliament agreed on, and the laws and customs of the same. Statute 1, William and Mary, Chapter 6, 1688. The effect and legality of the oath will thereafter be considered, for the present it is sufficient to show, as has been already sufficiently done, that from the Saxon times until at least as lately as 1616 the coronation oath has been, in substance, to maintain the law of the land or the common law, meaning thereby the ancient Saxon customs as embodied in the laws of Alfred, of Edward the Confessor, and finally in Magna Carta. It may here be repeated that this oath plainly proves the statutes of the king were of no authority over juries, if inconsistent with their ideas of right, because it was one part of the common law that the juries should try all causes according to their own consciences. Any legislation of the king to the contrary, not withstanding. Note, as the ancient coronation oath given in the text has come down from the Saxon times, the following remarks of Paul Grave will be pertinent in connection with the oath, as illustrating the fact that, in those times, no special authority attached to the laws of the king. The imperial botanical moat was not a legislative assembly in the strict sense of the term, for the whole Anglo-Saxon empire. Promigating his edicts amidst his peers and prelates, the king uses the language of command, but the theoretical prerogative is modified by usage, and the practice of the constitution required that the law should be accepted by the legislatures, courts, of the several kingdoms. The Basilicas speaks in the tone of prerogative. Edgar does not merely recommend, he commands, that the law shall be adopted by all the people, whether English, Danes, or Britons, in every part of his empire. Let this statute be observed, he continues, by Earl Ozlak, and all the host to dwell under his government, and let it be transmitted by writ to the Earl Alderman of the other subordinate states, and yet, in defiance of this positive injunction, the laws of Edgar were not accepted in Mercia until the reign of Canute the Dane. It might be said that the course so adopted may have been an exception to the general rule, but in the scanty and imperfect annals of Anglo-Saxon legislation, we shall be able to find so many examples of similar proceedings that this mode of enactment must be considered as dictated by the constitution of the empire. Edward was the supreme lord of the Northumbrians, but more than a century elapsed before they obeyed his decrees. The laws of the glorious Athelstain had no effect in Kent, County, the dependent appanage of his crown, until sanctioned by the Whitten of the Shire, County Court, and the power of Canute himself, the king of all England, does not seem to have compelled the Northumbrians to receive his code until the reign of the confessor, when sex acceptance became a part of the compact upon the accession of a new Earl. Legislation constituted but a small portion of the ordinary business transacted by the imperial Whitten of Gamote. The wisdom of the assembly was shown in avoiding unnecessary change. Consisting principally of traditionary usages and ancestral customs, the law was upheld by opinion. The people considered their jurisprudence as a part of their inheritance. Their privileges and their duties were closely conjoined. Most frequently, the statutes themselves were only affirmances of ancient customs or declaratory enactments. In the Anglo-Saxon Commonwealth, therefore, the legislative functions of the Whitten of Gamote were of far less importance than the other branches of its authority. The members of the Whitten of Gamote were the paris kioria, peers of the court, of the kingdom. How far on these occasions their opinion or their equity controlled the power of the crown cannot be ascertained. But the form of inserting their names in the testing clause was retained under the Anglo-Norman reigns, and the sovereign, who submitted his charter to the judgment of the proceress, professed to be guided by the opinion which they gave. As the paris of the empire, the Whitten of Gamote decided the disputes between great vassals of the crown, the jurisdiction exercised in the parliament of Edward I, when the barony of a Lord Marcher became the subject of litigation, is entirely analogous to the proceedings thus adopted by the great council of Edward, the son of Alfred, the Anglo-Saxon king. In this assembly the king, the prelates, the dukes, the eraldamen, and the optimates passed judgment upon all great offenders. The sovereign could not compel the obedience of the different nations composing the Anglo-Saxon empire. Hence it became more necessary for him to conciliate their opinions if he solicited any service from a vassal prince or a vassal state beyond the ordinary terms of the compact. Still more so when he needed the support of a free burg or city. And we may view the assembly, the Whitten of Gamote, as partaking of the character of a political congress in which the leisuremen of the crown, or the communities protected by the vassalists, sovereign, were asked or persuaded to relieve the exigencies of the state or to consider those measures which might be required for the common will. The sovereign was compelled to parlay with his dependence. It may be doubted whether any one member of the empire had power to legislate for any other member. The regulus of Cumbria was unaffected by the vote of Earl of East Angliae if he chose to stand out against it. These dignitaries constituted a congress in which the sovereign could treat more conveniently and effectually with his vassals than by separate negotiations. But the determinations of the Whitten bound those only who were present or who concurred in the proposition, and a vassal denying his assent to the grant might assert that the engagement which he had contracted with his superior did not involve any pecuniary subsidy, but only rendered him liable to perform service in the field. First Paul greys rise in progress of the English commonwealth 637-642. End of chapter 3, part 6. Chapter 4 of an essay on the trial by jury. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Read by Beth Ann. Trial by jury, chapter 4. The rights and duties of juries in civil suits. The evidence already given in the preceding chapters proves that the rights and duties of jurors in civil suits were angently the same as in criminal ones. That the laws of the king were of no obligation upon the consciences of the jurors, any further than the laws were seen by them to be just. That very few laws were enacted applicable to civil suits. That when a new law was enacted, the nature of it could have been known to the jurors only by report, and was very likely not to be known to them at all. That nearly all the law involved in civil suits was unwritten. That there was usually no one in attendance upon juries who could possibly enlighten them unless it were sheriffs, stewards, and bailiffs who were unquestionably too ignorant and untrustworthy to instruct them authoritatively. That the jurors must therefore necessarily have judged for themselves of the whole case, and that, as a general rule, they could judge of it by no law but the law of nature, or the principles of justice as they existed in their own minds. The ancient oath of jurors in civil suits, vis, that they would make known the truth according to their consciences, implies that the jurors were above the authority of all legislation. The modern oath in England, vis, that they will well and truly try the issue between the parties and a true verdict give according to the evidence, implies the same thing. If the laws of the king had been binding upon a jury, they would have been sworn to try the case according to law, or according to the laws. The ancient rites in civil suits, as given in Glanville, written the half century before Manicarta to it, summon twelve free and legal men, or sometimes twelve knights, to be in court, prepared upon their oaths to declare whether a or b have the greater right to the land in question, indicates that the jurors judged in the whole matter on their consciences only. The language of Manicarta, already discussed, establishes the same point, for, although some of the words, such as outlawed and exiled, would apply only to criminal cases, nearly the whole chapter applies as well to civil as to criminal suits. For example, how could the payment of a debt ever be enforced against an unwilling debtor, if he could neither be arrested in prison nor deprived of his freehold, and if the king could neither proceed against him nor send anyone against him by force or arms, yet Manicarta as much forbids that any of these shall be done against a debtor as against a criminal, except according to, or in execution of, a judgment of his peers or the law of the land, a provision which, it has been shown, gave the jury the free and absolute right to give or withhold judgment, according to their consciences, irrespective of all legislation. The following provisions in the Manicarta of John illustrate the custom of referring the most important matters of a civil nature, even where the king was a party, to the determination of the peers or of 12 men, acting by no rules but their own consciences. These examples at least show that there is nothing improbable or unnatural in the idea that juries should try all civil suits according to their own judgments, independently of all laws of the king. CHAPTER 65 If we have deceased or dispossessed the Welsh of any lands, liberties, or other things without the legal judgment of their peers, they shall be immediately restored to them, and if any dispute arises upon this head, the matter shall be determined in the marches. BY THE JUDGEMENT OF THEIR PEARTS, etc. NOTE MARCHES The Limits or Boundaries Between England and Wales CHAPTER 68 We shall treat with Alexander King of Scots concerning the restoring of his sisters and hostages and rights and liberties in the same form and manner as we shall do to the rest of our barons of England, unless by the engagements which his father William, late King of Scots, hath entered into with us. It ought to be otherwise, and this shall be left to the determination of his peers in our court. CHAPTER 56 All evil customs concerning forest, warrens, and foresters, warreners, sheriffs, and other officers, rivers and their keepers, shall fortwith be inquired into in each county. BY TWELVE NIGHTS OF THE SAME SHIRE, CHOSEN BY THE MOST CREDIBLE PERSONS IN THE SAME COUNTY, AND UPON OTHE, AND WITHIN FORTY DAYS AFTER THE SET INQUEST, BE EARLY ABOLISHED, SO AS NEVER TO BE RESTORED. THERE IS SUBSTANTIALLY THE SAME REASON WHY A JURY Ought to judge of the justice of laws, and hold all unjust laws invalid in civil suits as in criminal ones. That reason is the necessity of guardian against the tyranny of the government. Nearly the same oppressions can be practiced in civil suits as in criminal ones. For example, individuals may be deprived of their liberty and robbed of their property by judgments rendered in civil suits as well as in criminal ones. If the laws of the king were imperative upon a jury in civil suits, the king might enact laws giving one man's property to another, or confiscating it to the king himself, and authorizing civil suits to obtain possession of it. Thus, a man might be robbed of his property at the arbitrary pleasure of the king. In fact, all the property of the kingdom would be placed at the arbitrary disposal of the king through the judgments of juries in civil suits if the laws of the king were imperative upon a jury in such suits. Note that the kings would have had no scruples to enact laws for the special purpose of plundering the people by means of the judgments of juries if they could have got juries to acknowledge the authority of their laws is evident from the audacity with which they plunder them without any judgments of juries to authorize them. It is not necessary to occupy space here to give details as to these robberies, but only some evidence of the general fact. Hollam says that, for the first three reigns of the Norman kings, the intolerable exactions of tribute, the repine of prevance, the iniquity of royal courts, are continually in the mouths of the historians. God sees the wretched people, says the Saxon chronicler, most unjustly oppressed. First they are despoiled of their possessions and then butchered. This was a grievous year, 1124. Whoever had any property lost it by heavy taxes and unjust decrees. Second middle ages, 435 to 6. In the seceding reign of John, all the rapacious exactions usual to these Norman kings were not only redoubled but mingled with outrages of tyranny still more intolerable. In 1207 John took a seventh of the movables of lay and spiritual persons, all murmuring but none daring to speak against it. Ditto, 446. In Hume's account of extortions of those times, the following paragraph occurs. But the most barefaced acts of tyranny and oppression were practiced against the Jews, who were entirely out of the protection of the law, and were abandoned to the immeasurable rapacity of the king and his ministers. Besides many other indignities, to which they were continually exposed, it appears that they were once all thrown into prison and the sum of 66,000 marks extracted for their liberty. At other times, Isaac, the Jew, paid alone 5,100 marks. Brun, 3,000 marks. Jurinette, 2,000 marks. Bennett, 500. At another, Lycorica, widow of David, the Jew of Oxford, was required to pay 6,000 marks. Hume's history of England appendix two. Further accounts of the extortions and oppressions of the kings may be found in Hume's history appendix two, and in Hallam's Middle Ages, vol. 2, page 435 to 446. By Magna Carta, John bound himself to make restitution for some of the spoilsations he had committed upon individuals, without the legal judgment of their peers. See Magna Carta of John, chapter 60, 61, 65, and 66. One of the great charges, on account of which the nation rose against John, was that he plundered individuals of their property without legal judgment of their peers. Now it was evidently very weak and short-sighted in John to expose himself to such charges, if his laws were really obligatory upon the peers. Because in that case, he could have enacted any laws that were necessary for his purpose, and then, by civil suits, abroad the case is before juries for their judgment, and those have accomplished all his robberies in a perfectly legal manner. There would evidently have been no sense in these complaints that he deprived men of their property without legal judgment of their peers if his laws had been binding upon the peers, because he could then have made the same spoilsations as well with the judgment of the peers as without it. The judgment of the peers in the matter would have been only a ridiculous and useless formality if they were to exercise no discretion or conscience of their own, independently of the laws of the king. It may here be mentioned in passing that the same would be true in criminal matters if the king's laws were obligatory upon juries. As an illustration of what cheering the kings was sometimes practice, Hume says, It appears from the great charter itself that not only John, a tyrannical prince, and Richard, a violent one, but their father Henry, under whose reign the prevalence of gross abuses is the least to be suspected, were accustomed, from their sole authority, without the process of law, to imprison, banish, and attain to the freemen of their kingdom. The provision, also, in the sixty-fourth chapter of Mycarta, that all unjust and illegal fines and all immersements imposed unjustly and contrary to the law of the land shall be entirely forgiven, etc. And the provision, in chapter sixty-one, that the king will cause full justice to be administered in regard to all those things of which any person has, without legal judgment of his peers, been dispossessed or deprived, either by king Henry, our father, or our brother, King Richard, indicate the tyrannical practices that prevailed. We are told also that John himself had dispossessed several great men without any judgment of their peers, condemned others to cruel deaths, in so much that his tyrannical will stood instead of a law. Eckerd's History of England, 106. Now all these things were very unnecessary and foolish if his laws were binding upon juries, because in that case he could have procured the conviction of these men in a legal manner, and thus have saved the necessity of such usurpation. In short, if the laws of the king have been binding upon juries, there is no robbery, vengeance, or oppression which he could not have accomplished to the judgments of juries. This consideration is sufficient, of itself, to prove that the laws of the king were of no authority over a jury in either civil or criminal cases, unless the juries regarded the laws as just in themselves. End, footnote. Furthermore, it would be absurd and inconsistent to make a jury paramount to legislation in criminal suits, and subordinate to it in civil suits, because an individual, by resisting the execution of a civil judgment, founded upon an unjust law, could give rise to a criminal suit in which the jury would be bound to hold the same law invalid, so that, if an unjust law were binding upon a jury in civil suits, a defendant, by resisting the execution of that judgment, could, in effect, convert the civil action into a criminal one in which the jury would be paramount to the same legislation, to which, in the civil suit, they were subordinate. In other words, in the criminal suit, the jury would be obliged to justify the defendant in resisting a law which, in the civil suit, they had said he was bound to submit to. To make this point plain to the most common mind, suppose a law being enacted that the property of A shall be given to B. B brings the civil action to obtain possession of it. If the jury in this civil suit are bound to hold the law obligatory, they render a judgment in favor of B, that he be put in possession of the property, thereby declaring that A is bound to submit to a law depriving him of his property. But when the execution of the judgment comes to be attempted, that is, when the sheriff comes to take the property for the purpose of delivering it to B, A, acting as he has a natural right to do in defense of his property, resists and kills the sheriff. He is thereupon indicted for murder. On this trial his plea is that in killing the sheriff, he was simply exercising his natural right of defending his property against an unjust law. The jury, not being bound in a criminal case by the authority of an unjust law, judged the act on its merits and acquitted the defendant. Thus declaring that he was not bound to submit to the same law which the jury in the civil suit had by their judgment declared that he was bound to submit to. Here is a contradiction between the two judgments. In the civil suit the law is declared to be obligatory upon A. In the criminal suit the same law is declared to be of no obligation. It would be a solicism and absurdity in government to allow such consequences as these. Besides, it would be practically impossible to maintain government on such principles. For no government could enforce its civil judgments unless it could support them by criminal ones in the case of resistance. A jury must therefore be paramount to legislation in both civil and criminal cases, or in neither. If they are paramount in neither, they are no protection to liberty. If they are paramount in both, then all legislation goes only for what it may chance to be worth in the estimation of a jury. Another reason why Magna Carta makes the discretion and consciences of juries paramount to all legislation in civil suits is that if legislation were binding upon the jury, the jurors by reason of their being unable to read as jurors in those days were, and also by reason of many of the statutes being unwritten, or at least not so many copies written as that juries could be supplied with them, would have been necessitated, at least in those courts in which the king's justice is sat, to take the word of those justices as to what the laws of the king really were. In other words, they would have been necessitated to take the law from the court, as jurors do now. Now there are two reasons why, as we may rationalize oppose, the people did not wish juries to take their laws from the king's judges. Now there were two reasons why, as we may rationalize oppose, the people did not wish juries to take their law from the king's judges. One was that in that day, the people probably had sense enough to see what we at this day have not sense enough to see, although we have the evidence of it every day before our eyes, that those judges being dependent upon the legislative power of the king, being appointed by it, paid by it, and removable by it at pleasure would be mere tools of that power and would hold all its legislation obligatory whether it were just or unjust. This was one reason, doubtless, why Magna Carta made juries in civil suits paramount to all instructions of the king's judges. The reason was precisely the same as that for making them paramount to all instructions of judges in criminal suits, this that the people did not choose to subject their rights of property and all other rights involved in civil suits to the operation of such laws as the king might please to enact. It was seen that to allow the king's judges to dictate the law to the jury would be equivalent to making the legislation of the king imperative upon the jury. Another reason why the people did not wish juries in civil suits to take their law from the king's judges doubtless was that knowing the dependence of the judges upon the king and knowing that the king would, of course, tolerate no judges who were not subservient to his will, they necessarily inferred that the king's judges would be as corrupt in the administration of justice as was the king himself or as he wished them to be. And how corrupt that was may be inferred from the following historical facts. Hume says, It appears that the ancient kings of England put themselves entirely upon the footing of the barbarous Eastern princes whom no man must approach without a present who sell all their good offices and who intrude themselves into every business that they may have a pretense for extorting money. Even justice was avowedly bought and sold. The king's court itself, though the supreme judicature of the kingdom was open to none that brought not presence to the king, the bribes given for expedition, delay, suspension, and doubtless for the perversion of justice were entered in the public registers of the royal revenue and remained as monuments of the perpetual iniquity and tyranny of the times. The barons of the exchequer, for instance, the first nobility of the kingdom were not ashamed to insert as an article in their records that the county of Norfolk paid a sum that they might be fairly dealt with, the borough of Yarmouth, that the king's charters, which they have for their liberties might not be violated, Richard's son of Gilbert, or his debt from the Jews. Serlo, son of Terlaviston, that he might be permitted to make his defense in case he were accused of a certain homicide. Walter de Burton, for free law, if accused of wounding another. Robert de Essert, for having an inquest to find whether Roger, the butcher, and Wace and Humphrey accused him of robbery and theft out of envy and ill will or not. William Buhurst, for having an inquest to find whether he was accused of the death of one Godwin, out of ill will or for just cause. I have selected these few instances from a great number of the like kind, which Maddox had selected from a still greater number, preserved in the ancient roles of the Exchequer. Sometimes a party litigant offered the king a certain portion, a half, a third, a fourth, payable out of the debts which he, as the executor of justice, should assist in recovering. Theophania de Westerland agreed to pay half of two hundred and twelve marks that she might recover that sum against James de Fugleston. Solomon the Jew engaged to pay one mark out of every seven that he should recover against Hugh de La Hose. Nicholas Morrell promised to pay sixty pounds that the Earl of Flanders might be restrained to pay him three hundred and forty-three pounds which the Earl had taken from him. And these sixty pounds were to be paid out of the first money that Nicholas should recover from the Earl. Hume appendix two. In the reign of Henry II the best and most just of these, the Norman princes, Peter of Bois, a judicious and even elegant writer of that age, gives a pathetic description of the venality of justice and the oppressions of the poor, and he scruples not to complain to the king himself of these abuses. We may judge what the case would be under the government of worse princes. Hume appendix two. Carte says the crown exercised in those days an exorbitant and inconvenient power ordering the justices of the king's court in suits without lands to turn out, put, and keep in possession which of the litigants they pleased to send contradictory orders and take large sums of money from each, to respite proceedings, to direct sentences, and the judges acting by their commission conceived themselves bound to observe such orders to the great delay, interruption, and preventing of justice. At least this was John's practice. Carte's History of England Volume 1, page 832 Hume says but of all the abuses that deformed the Anglo-Saxon government, none was so flagetious as the sell of judicial redress. The king, we are often told is the fountain of justice but in those ages it was one which gold alone could unseal. Men fined, paid fines to have right done them to sue in a certain court to impede a certain person to have restitution of land which they had recovered at law. From the sell of that justice which every citizen has a right to demand it was an easy transition to withhold or deny it. Fines were received for the king's help against the adverse suitor, that is for the perversion of justice or for delay. Sometimes they were paid by opposite parties and of course for opposite ends. Second Middle Ages 438 In allusion to the provision of Magna Carta on this subject Hume says a law which enacts that justice shall neither be sold, denied nor delayed stamps with infamy that government under which it had become necessary. Second Middle Ages 451 Lindgard speaking of the times of Henry II say 1184 says it was universally understood that money possessed greater influence than justice in the royal courts and instances are on record in which one party has made the king a present to accelerate and the other by a more valuable offer has succeeded in retarding a decision. But besides the fines paid to the sovereigns the judges often extracted presents for themselves and loud complaints existed against their banality in injustice. Second Lindgard 231 In the narrative of the cost and charges which I Richard Johnstay bestowed in recovering the lands of William, my uncle some 50 years before Magna Carta are the following items. To Ralph the king's physician I gave 36 marks and one half to the king 100 marks to the queen one mark of gold the result is thus stated at last thanks to our lord the king and by the judgment of his court my uncle's land was a judge to me. Second Paul Graves rise in progress of the English Commonwealth page 9 and 24 Paul Graves also says the precious ore was cast into the scales of justice even when held by the most conscientious of our Anglo-Saxon kings a single case will exemplify the practices which were veiled. Ulfrich the heir of Alowen the Black seeks to set aside the death bed bequest by which his kinsmen bestowed four rich and fertile manners upon Saint Benedict. Ulfrich the claimant was supported by extensive and powerful connections and Abbott Ulfwayne the defendant was well aware that there would be danger in the discussion of the dispute in public or before the folk moat people's meeting or county court or in other words that the thanes of the shire would do their best to give a judgment in favor of their compere the plea being removed into the royal court the Abbott acted with that prudence which so often calls forth the praises of the monastic scribe he gladly emptied 20 marks of gold into the sleeve of the confessor Edward and five marks of gold presented to Edith the fair encouraged her aid to the bishop and to exercise her gentle influence in his favor Ulfrich with equal wisdom withdrew from prosecuting the hopeless cause in which his opponent might possess an advocate in the royal judge and a friend in the king's consort both parties therefore found it desirable to come to an agreement first Paul Grace rise in progress et cetera page 650 but Magna Carta has another provision for the trial of civil suits that obviously had its origin in the corruption of the king's judges the provision is that four knights to be chosen in every county by the people of the county shall sit with the king's judges in the common pleas in jury trials the sizes on the trial of three certain kinds of suits that were among the most important that were tried at all the reason for this provision undoubtedly was that the corruption and subserviency of the king's judges were so well known that the people would not even trust them to sit alone in a jury trial of any considerable importance the provision is this chapter 22 of John's Charter common pleas shall not follow our court that shall be holding in some certain place trials upon the writ of novel deceison and of Mordancester and of Darren presentment shall be taken but in their proper counties and after this manner we, or if we should be out of our realm, our chief justiciary shall send two justiceries through every county four times a year who with four knights chosen out of every shire by the people shall hold the sizes juries in the county on the day and at the place appointed note by the Magna Carta of Henry III this is changed to once a year in footnote it would be very unreasonable to suppose the king's judges were allowed to dictate the law to the juries when the people would not even suffer them to sit alone in jury trials but themselves chose four men to sit with them to keep them honest note from the provision of Magna Carta cited in the text it must be inferred that there can be no legal trial by jury in civil cases if only the king's justice presides that to make the trial legal there must be other persons chosen by the people to sit with them the object being to prevent the juries being deceived by the justices I think we must also infer that the king's justices could sit only in the three actions especially mentioned we cannot go beyond the letter of Magna Carta in making innovations upon the common law which required all presiding officers in jury trials to be elected by the people in footnote this practice of sending the king's judges to the counties to preside at jury trials was introduced by the Norman kings under the Saxons it was not so no officer of the king was allowed to preside at a jury trial but only magistrates chosen by the people note the Earl's sheriffs and head burles were annually elected in the full folk moat people's meeting introduction to Gilbert history of the common police page 2 note it was the special province of the Earl de Men or Earl to attend the Shire meeting the county court twice a year and there officiate as the county judge in expounding the secular laws as appears by the 5th of Edgar's laws same page 2 note every ward had its proper alderman who was chosen and not imposed by the prince same page 4 text as the alderman or Earl's were always chosen by the people from among the greatest things who in those times were generally more addicted to arms than to mutters were ill qualified for the administration of justice and performing the civil duties of their office 3rd Henry's history of Great Britain 343 but none of these things were annually elected to the full folk moat people's meeting as the Earl's sheriffs and head burles were nor did King Alfred as the author suggests deprived the people of the election of those last mentioned magistrates and nobles much less did he appoint them himself introduction to Gilbert's histories common please page 2 note among the most remarkable of the Saxon laws we may reckon the election of their magistrates by the people originally even that of their kings till dear bot experience invents the convenience and necessity of establishing a hereditary succession to the crown but that the election of all subordinate magistrates their military officers or hair talks their sheriffs their conservators of the peace their coroners their portrays since changed into mayors and bailiffs and even their tithing men and bore shoulders at the last continued some till the Norman conquest and others for two centuries after and some remain to this day 4th Blackstone 413 the election of sheriffs was left to the people according to ancient usage Statute West 1 Chapter 27 Crabs History of the English Law 181 and footnote but the following chapter of John's Charter which immediately secedes the one just quoted and refers to the same suits affords very strong not to say conclusive proof that juries judged the law in civil suits that is made the law so far as they're deciding according to their own notions of justice could make the law Chapter 23 and if on the county day the aforesaid assizes cannot be taken so many nights and freeholders shall remain of those who shall have been present on said day as that the judgments may be rendered by them whether the business be more or less the meaning of this chapter is that so many of the civil suits as could not be tried on the day when the king's justices were present should be tried afterwards and the four nights before mentioned and the freeholders that is the jury it must be admitted of course that the juries in these cases judged the matters of law as well as fact unless it be presumed that the knights dictated the law to the jury a thing of which there is no evidence at all as a final proof on this point there is a statute enacted 70 years from Manacara which although it is contrary to the common law and therefore void is nevertheless good evidence in as much as it contains an acknowledgement on the part of the king himself that juries had a right to judge of the whole matter law and fact in the civil suits the provision is this it is ordained that the justices assigned to take the assizes shall not compel the jurors to say precisely whether it be de season or not so that they do show the truth of the deed and seek aid of the justices but if they will of their own accord say that it is de season or not their verdict shall be admitted at their own peril 15 Edward I Chapter 3 1285 the question of de season or not was a question of law as well as fact this statute therefore admits that the law as well as the fact was in the hands of the jury the statute is nevertheless void because the king had no authority to give jurors a dispensation from the obligation imposed upon them by their oaths and the law the land that they should make known the truth according to their own consciences this they were bound to do and there was no power in the king to absolve them from the duty and the attempt of the king must absolve them and authorize them to throw the case into the hands of the judges for decision was simply an illegal and unconstitutional attempt to overturn the law of the land which he was sworn to maintain and gather power into his own hands through his judges he had just as much constitutional power to enact that the jurors should not be compelled to declare the facts but that they might leave them to be determined by the king's judges as he had to enact that they should not be compelled to declare the law but might leave it to be decided by the king's judges it was as much the legal duty of the jury to decide the law as to decide the fact that no law of the king could affect their obligation to do either and this statute is only one example of the numberless contrivances and usurpations which have been resorted to for the purpose of destroying the original and genuine trial by jury End of Chapter 4 Chapter 5, Part 1 of an essay on the trial by jury This is a Libber Box recording All Libber Box recordings are in the public domain For more information or to volunteer please visit LibberVox.org Read by Beth Ann Trial by jury by Lysander Spooner Chapter 5, Part 1 Objections answered The following objections will be made to the doctrines and the evidence presented in the preceding chapters First that it is a maxim of the law that the judges respond to the question of law and juries only to the question of fact The answer to this objection is that since Magna Carta judges have had more than 6 centuries in which to invent and promulgate protected maxims to suit themselves and this is one of them Instead of expressing the law it expresses nothing but the ambitions and lawless will of the judges themselves and of those whose instruments they are Note 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 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 End footnote Second it will be asked are the justices if the jurors judge both of law and fact The answer is that they are of use One to assist and enlighten the jurors if they can by their advice and information Such advice and information to be received only for what they may chance to be worth in the estimation of the jurors Two to do anything that may be necessary in regard to granting appeals and new trials Third it is said that it would be absurd that twelve ignorant men should have power to judge the law while justices learned in the law should be compelled to sit by and see the law decided erroneously One answer to this objection is that the powers of juries are not granted to them on the supposition that they know the law better than the justices but on the ground that the justices are untrustworthy and are exposed to bribes and are themselves fond of power and authority and are also the dependent and subservient creatures of the legislature and that to allow them to dictate the law would not only expose the rights of parties to be sold for money but would be equivalent to surrendering all the property, liberty and rights of the people unreservedly into the hands of arbitrary power the legislature to be disposed of at its pleasure the powers of juries therefore not only plays a curb upon the powers of legislators and judges but imply also an imputation upon their integrity and trustworthiness and these are the reasons why legislators and judges have formally entertained the intensest hatred of juries and so fast as they could do it without alarming the people for their liberties have by indirection denied, undermined and practically destroyed their power and it is only since all the real power of juries has been destroyed and they have become mere tools in the hands of legislators and judges that they have become favorites with them legislators and judges are necessarily exposed to all the temptations of money, fame and power to induce them to disregard justice between parties and sell the rights and violate the liberties of the people jurors on the other hand are exposed to none of these temptations they are not liable to bribery for they are unknown to the parties until they come into the jury box they can rarely gain either fame, power or money by giving erroneous decisions their offices are temporary and they know that when they shall have executed them they must return to the people to hold all their own rights in life subject to the liability of such judgments by their successors as they themselves have given an example for the laws of human nature do not permit the supposition that 12 men taken by lot from the mass of the people and acting under such circumstances will all prove dishonest it is a supposable case that they may not be sufficiently enlightened to know and do their whole duty in all cases whatsoever but that they should all prove dishonest is not within the range of probability therefore ensures to us what no other court does that first an indispensable requisite in a judicial tribunal integrity fourth it is alleged that if juries are allowed to judge of the law they decide the law absolutely that their decision must necessarily stand be it right or wrong and that this power of absolute decision would be dangerous in their hands by reason of their ignorance of the law one answer is that this power which juries have of judging of the law is not a power of absolute decision in all cases for example it is a power to declare imperatively that a man's property, liberty, or life shall not be taken from him but it is not a power to declare imperatively that they shall be taken from him Magna Carta does not provide that the judgments of the peers shall be executed but only that no other than their judgments shall ever be executed so far as to take a party's goods rights or person there on a judgment of the peers may be reviewed and invalidated in a new trial granted so that practically a jury has no absolute power to take a party's goods rights or person they have only an absolute veto upon their being taken by the government the government is not bound to do everything that a jury may judge it is only prohibited from doing anything that is, from taking a party's goods rights or person unless a jury have first a judged it to be done but it will perhaps be said that if an erroneous judgment of one jury should be reaffirmed by another on a new trial it must then be executed but Magna Carta does not command even this although it might perhaps have been reasonably safe for it to have done so for of two juries unanimously affirm the same thing after all the light and aid that judges and lawyers can afford them that fact probably furnishes a strong of presumption in favor of the correctness of their opinion as can ordinarily be obtained in favor of a judgment by any measures of practical character for the administration of justice still there is nothing in Magna Carta that compels the execution of even a second judgment of a jury the only injunction of Magna Carta upon the government as to what it shall do on this point is that it shall do justice and right without sell, denial or delay but this leaves the government all power determining what is justice and right except that it shall not consider anything as justice and right so far as to carry it into execution against the goods, rights or person of a party unless it be something which a jury have sanctioned if the government had no alternative but to execute all judgments of a jury indiscriminately the power of juries would unquestionably be dangerous for there is no doubt that they may sometimes give hasty and erroneous judgments but when it is considered that their judgments can be reviewed and new trials granted this danger is for all practical purposes obviated if it be said that juries may successively give erroneous judgments and that new trials cannot be granted indefinitely the answer is that so far as Magna Carta is concerned there is nothing to prevent the granting of new trials indefinitely if the judgments of juries are contrary to justice and right so that Magna Carta does not require any judgment whatever to be executed so far as to take a party's goods, rights or person thereon unless it be concurred in by both court and jury nevertheless we may for the sake of the argument suppose the existence of a practical if not legal necessity for executing some judgment or other in cases where juries persist in disagreeing with the courts in such cases the principle of Magna Carta unquestionably is that the uniform judgments of successive juries shall prevail over the opinion of the court and the reason of this principle is obvious that it is the will of the country and not the will of the court or the government that must determine what laws to be established in a forest at the concurrent judgment of successive juries given in opposition to all the reasoning which judges and lawyers can offer to the contrary must necessarily be presumed to be a true exposition of the will of the country than are the opinions of the judges but it may be said that unless jurors submit to the control of the court in matters of law they may disagree among themselves and never come to any judgment and thus justice fell to be done such a case is perhaps possible but if possible it can occur but rarely because although one jury may disagree a succession of juries are not likely to disagree that is un-matters of natural law or abstract justice note most discriminants of juries are un-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 and footnote if such a thing should occur it would almost certainly be owing to the attempt of the court to mislead them it is hardly possible that any other cause should be adequate to produce such an effect because justice comes very near to being a self-evident principle the mind perceives it almost intuitively if in addition to this the court be uniformly on the side of justice it is not a reasonable supposition that a succession of juries should disagree about it if therefore a succession of juries do disagree on the law of any case the presumption is not that justice fails of being done but that injustice is prevented that injustice which would be done if the opinion of the court were suffered to control the jury for the sake of argument however it may be admitted to be possible that justice should sometimes fail at being done through the disagreements of jurors notwithstanding all the light which judges and lawyers can throw upon the question in issue if it be asked what provision the trial by jury makes for such cases the answer is it makes none and justice must fail at being done from the want of its being made sufficiently intelligible under the trial by jury that the trial by jury justice can never be done that is by a judgment that shall take a party's goods, rights or person until that justice can be made intelligible or perceptible to the minds of all the jurors or at least until it obtain the voluntary assent of all an assent which ought not to be given until the justice itself shall become perceptible to all the principles of the trial by jury and are these first that in criminal cases the accused is presumed innocent second that in civil cases possession is presumptive proof of property or in other words every man is presumed to be the rightful proprietor of what he has in his possession third that these presumptions shall be overcome in a court of justice only by evidence the sufficiency of which the justice of which are satisfactory to the understanding and consciousness of all the jurors these are the bases on which the trial by jury places the property, liberty and rights of every individual but someone will say if these are the principles of the trial by jury then it is plain that justice most often fail to be done admitting for the sake of argument that this may be true the compensation for it is that positive injustice will also often fail to be done whereas otherwise it would be done frequently the very precautions used to prevent injustice being done may often have the effect to prevent justice being done but are we therefore to take no precautions against injustice by no means all will agree the question that arises does the trial by jury or explained involves such extreme and unnecessary precautions against injustice as to interpose unnecessary obstacles to the doing of justice many of different minds may very likely answer this question differently according as they have more or less confidence in the wisdom and justice of legislators the integrity and independence of judges and the intelligence of jurors this much however may be said in favor of these precautions is that the history of the past as well as our constant present experience prove how much injustice may and certainly will be done systematically and continually for the want of these precautions that is while the law is authoritatively made and expounded by legislators and judges on the other hand we have no such evidence how much justice may fail to be done by reason of these precautions that is by reason of the law being left to the judgments and contenses of jurors we can determine the former point that is how much positive injustice is done under the first of these two systems because the system is in full operation but we cannot determine how much justice would fail to be done under the latter system because we have in modern times had no experience of the use of the precautions themselves in ancient times when these precautions were nominally enforced such was the tyranny of kings and such the poverty, ignorance and inability of concert and resistance on the part of the people that the system had no full or fair operation it nevertheless under all these disadvantages impressed itself upon the understandings and embedded itself in the hearts of the people so as no other system of civil liberty has ever done but this view of the two systems compares only the injustice done and the justice admitted to be done in the individual cases of judged without looking beyond them and some persons might on first thought argue that if justice failed of being done under the one system oftener than positive injustices were done under the other the balance was in favor of the latter system but such a weighing of the two systems against each other gives no true idea of their comparative merits or demerits for possibly in this view alone the balance would not be very great in favor of either do you compare or rather to contrast the two we must consider that under the jury system the values to do justice would be only rare in exceptional cases and would be only either to the intrinsic difficulty of the questions or to the fact that the parties had transacted their business in a manner unintelligible to the jury and the effects would be confined to the individual or individuals interested in the particular suits no permanent law would be established thereby destructive of the rights of the people in other like cases and the people at large would continue to enjoy all their natural rights as before but under the other system whenever an unjust law is enacted by the legislature and the judge imposed it upon the jury as authoritative and they give a judgment in accordance therewith the authority of the laws thereby established and the whole people are thus brought under the yoke of that law because they then understand against them in future if they presume to exercise their rights or refuse to comply with the exactions of the law in this manner all unjust laws are established and made operative against the rights of the people the difference then between the two systems is this under the one system a jury at distant intervals would not enforce any positive injustice but only fail of enforcing justice in a dark and difficult case or in consequence of the parties not having transacted their business in a manner intelligible to a jury and the plaintiff with this fail obtaining what was rightfully due him and there the matter would end for evil though not for good for thenceforth parties warned of the danger of losing their rights would be careful to transact their business in a more clear and intelligible manner under the other system the system of legislative and judicial authority positive injustice is not only done in every suit arising under unjust laws that is men's property liberty or lives are not only unjustly taken on those particular judgments but the rights of the whole people are struck down by the authority of the laws thus enforced by the stripping tyranny at once put in operation but there is another ample and conclusive answer to the argument that justice would often fail to be done if jurors were allowed to be governed by their own conferences instead of the direction of the justices in matters of law that answer is this legitimate government can be formed only by the voluntary association of all who contribute to its support as a voluntary association it can have for its objects only those things in which the members of the association are all agreed if therefore there be any justice in regard to which all the parties of the government are not agreed the objects of the association do not extend to it this is the principle of all voluntary associations whatsoever no voluntary association 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 association are agreed government therefore must be kept within these limits or it is no longer a voluntary association of all who contribute to its support but a mere tyranny established by part over the rest all or nearly all voluntary associations 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 association 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 end foot note if any of the members wish more than this if they claim to have acquired a more extended knowledge of justice than is common to all and wish to have their pretend discoveries carried into effect in reference to themselves they must either form a separate association for that purpose or be content to wait until they can make their views intelligible to the people at large they cannot claim or expect the whole people shall practice the folly of taking on trust their pretended superior knowledge and of committing blindly into their hands all their own interests, liberties and rights to be disposed of on principles the justness of which the people themselves cannot comprehend a government of the whole therefore must necessarily confine itself to the administration of such principles of law as all the people who contribute to the support of the government can comprehend and see the justice of and it can be confined within these limits only by allowing the jurors who represent all the parties to the compact to judge of the law and the justice of the law in all cases whatsoever and if any justice be left undone under these circumstances it is the justice for which the nature of the association does not provide which the association does not undertake to do and which as an association is under no obligation to do the people at large the unlearned and common people have certainly an indisputable right to associate for the establishment and maintenance of such a government as they themselves see the justice of and feel the need of for the promotion of their own interest and the safety of their own rights without at the same time surrendering all their property liberty and rights into the hands of men who, under the pretense of a superior and incomprehensible knowledge of justice may dispose of such property liberties and rights in a manner to suit their own selfish and dishonest purposes if a government were to be established and supported solely by that portion of the people who they claim to superior knowledge there would be some consistency in their saying that the common people should not be received as jurors with power to judge of the justice of the laws but so long as the whole people or all the male adults are presumed to be voluntary parties to the government and voluntary contributors to its support there is no consistency in refusing any one of them more than to another the right to sit as juror with full power to decide for himself or there any law that is proposed to be enforced in any particular case be within the objects of the association the conclusion therefore is that in a government form of voluntary association or in the theory of voluntary association and voluntary support as all the North American governments are no law can rightfully be enforced by the association in its corporate capacity against the goods, rights, or person of any individual except it be such as all the members of the association agree that it may enforce to enforce any other law to the extent of taking a man's goods, rights, or person would be making some of the parties to the association accomplices in what they regard as acts of injustice it would also be making them consent to what they regard as the destruction of their own rights these are things which no legitimate system or theory of government can require of any of the parties to do the mode adopted by the trial by jury for ascertaining whether all the parties to the government do approve of a particular law is to take 12 minute random from the whole people and accept their unanimous decision as representing the opinions of the whole even this mode is not theoretically accurate for theoretical accuracy would require that every man who was a party to the government should individually give his consent to the enforcement of every law in every separate case but such a thing would be impossible in practice the consent of 12 men is therefore taken instead with the privilege of appeal and in case of error found by the appeal court a new trial to guard against possible mistakes this system it is assumed will ascertain the sense of the whole people the country with sufficient accuracy for all practical purposes and with as much accuracy as is predictable without too great inconvenience and expense end of chapter 5 part 1 chapter 5 part 2 of an essay on the trial by jury this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org read by Bethanne trial by jury by Lysander Spooner chapter 5 part 2 objections answered 5 another objection that will perhaps be made to allowing jurors to judge of the law and the justice of the law is that the law would be uncertain if by this objection it is meant that the law would be uncertain to the minds of the people at large so that they would not know what the juries would sanction and what condemn and would not therefore know practically what the juries were under the law the objection is thoroughly baseless and false no system of law that was ever devised could be so entirely intelligible and certain to the minds of the people at large as this compared with it the complicated systems of law that are compounded of the law of nature of constitutional grants of innumerable and incessantly changing legislative enactments and of countless and contradictory judicial decisions with no uniform principle of reason or justice running through them are among the blindest of all the mazes in which unsophisticated minds were ever bewildered and lost the uncertainty of the law under these systems has become a proverb so great is this uncertainty that nearly all men learned as well as unlearned their enemy instead of resorting to it for protection they usually go into courts of justice so called only as men go into battle when there is no alternative left for them and even then they go into them as men go into dark labyrinths and caverns with no knowledge of their own but trusting wholly to their guides yet less fortunate than other adventurers with no confidence even in their guides for the reason that the guides themselves know little of the mazes they are threatening they know the mode and place of entrance but what they will meet with on their way and what will be the time, mode or place or condition of their exit whether they will emerge into a prison or not whether wholly naked and destitute or not whether with their reputations luck to them or in time or eternity experienced and honest guides rarely ventured to predict was there ever such fatuity as that of a nation of men madly bent on building up such labyrinths as these for no other purpose than that of exposing all their rights of reputation property, liberty and life to the hazards of being lost in them instead of being content to live in the light of the open day of their own understandings what honest unsophisticated men ever found himself involved in a lawsuit that he did not desire of all things that his cause might be judged of on principles of natural justice as those principles were understood by plain men like himself he would then feel that he could foresee the result these plain men are the men who pay the taxes and support the government why should they not have such an administration of justice as they desire and can understand if the jurors were to judge of the law and the justice of the law there would be something like certainty in the administration of justice and in the popular knowledge of the law and men would govern themselves accordingly there would be something like certainty because every man has himself something like definite and clear opinions and also knows something of the opinions of his neighbors on matters of justice and he would know that no statute unless it were so clearly justice to command the unanimous assent of 12 men who should be taken at random from the whole community could be enforced so as to take from him his reputation, property, liberty or life what greater certainty can men require or need as to the laws under which they are to live if a statute were enacted by a legislature then in order to know what was its true interpretation whether it were constitutional and whether it would be enforced would not be under the necessity of waiting for years until some suit had arisen and been carried through all the stages of judicial proceeding to a final decision he would need only to use his own reason as to its meaning and its justice and then talk with his neighbors on the same points unless he found them nearly unanimous with his reputation and approbation of it he would conclude that juries would not unite in enforcing it and that it would consequently be a dead letter and he would be safe in coming to this conclusion there would be something like certainty in the administration of justice and in the popular knowledge of the law for the further reason that there would be little legislation and men's rights would be left to stand almost solely upon the law of nature or what was once called in England the common law before so much legislation and usurpation had become incorporated into the common law in other words upon the principles of natural justice of the certainty of this law of nature or the ancient English common law I may be excused for repeating here what I have said on another occasion natural law so far from being uncertain when compared with statutory constitutional law is the only thing that gives any certainty at all to a very large portion of our statutory and constitutional law the reason is this the words in which statutes and constitutions are written are susceptible of so many different meanings meanings widely different from often directly opposed to each other in their bearing upon men's rights that unless there were some rules for interpretation for determining which of these various and opposite meanings are the true ones there could be no certainty at all as through the meaning of the statutes and constitutions themselves judges could make almost anything they should please out of them hence the necessity of a rule of interpretation and this rule is that the language of statutes and constitutions shall be construed as nearly as possible consistently with natural law the rule assumes what is true that natural law is a thing certain in itself also that it is capable of being learned it assumes furthermore that it actually is understood by the legislators and judges who make and interpret the written law of necessity therefore it assumes further that they, the legislators and judges are incompetent to make and interpret the written law unless they previously understand the natural law applicable to the same subject it also assumes that the people must understand the natural law before they can understand the written law it is a principle perfectly familiar to lawyers and one that must be perfectly obvious to every other man that will reflect a moment that as a general rule no one can know what the written law is until he knows what it ought to be that men are liable to be constantly misled by the various and conflicting senses of the same words unless they perceive the true legal sense in which the words ought to be taken and this true legal sense is a sense that is most nearly consistent with natural law of any that the words bear consistently with the laws of language and appropriately to the subjects to which they are applied though the words contain the law the words themselves are not the law or the words themselves the law each single written law would be liable to embrace many different laws to wit as many different laws as there were different senses in which each and all the words were capable of being taken take for example the constitution of the united states by adopting one or another sense of the single word free the whole instrument is changed yet the word free is capable of some 10 or 20 different senses so that by changing the sense of that single word some 10 or 20 different constitutions could be made out of that same written instrument but there are we will suppose a thousand other words in the constitution each of which is capable of from 2 to 10 different senses so that by changing the sense of only a single word at a time several thousands of different constitutions would be made but this is not all variations could also be made by changing the senses of two or more words at a time and these variations could be run through all the changes and combinations of senses that these thousand words are capable of we see then that it is no more than a literal truth that out of that single instrument as it now stands without altering the location of a single word might be formed by construction and interpretation more different constitutions than figures can well estimate but each written law in order to be a law must be taken only in some one definite and distinct sense and that definite and distinct sense must be selected from the almost infinite variety of senses which its words are capable of how is this selection to be made it can be only by the aid of that perception of natural law or natural justice which men naturally possess such then is a comparative certainty of the natural and the written law nearly all the certainty there is in the latter so far as it relates to principles is based upon and derived from the still greater certainty of the former in fact nearly all the uncertainty of the laws under which we live which are a mixture of natural and written laws arises from the difficulty of misconstruing or rather from the facility of misconstruing the written law while natural law has nearly or quite the same certainty as mathematics on this point Sir William Jones one of the most learned judges that have ever lived learned in Asiatic as well as European law says and the fact should be kept forever in mind as one of the most important of all truths it is pleasing to remark the similarity or rather the identity of those conclusions which pure unbiased reason in all ages and nations seldom fails to draw in such juridical inquiries as are not fettered and manacled by positive institutions Jones on bailments 133 in short the simple fact the written law must be interpreted by the natural is of itself a sufficient confession of the superior certainty of the latter the written law then even where it can be construed consistently with the natural introduces labor and obscurity instead of shedding them out and this must always be the case because words do not create ideas but only recall them and the same word may recall many different ideas the reason nearly all abstract principles can be seen by the single mind more clearly than they can be expressed by words to another this is owing to the imperfection of language and the different senses meanings and shades of meaning which different individuals attach to the same words in the same circumstances note 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 dictation to frame a law in such clear and precise terms as to secure it from ambiguous expressions and from all doubts upon its meaning Kent 460 the following extract from a speech of Lord Broome 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 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 page 525 end footnote where the written law cannot be consistently with the natural there is no reason why it should ever be enacted at all it may indeed be sufficiently plain and certain to be easily understood but its certainty and plainness aren't but a poor compensation for its injustice doubtless a law forbidding men to drink water on pain of death might be made so intelligible to cut off all discussionist to its meaning equivalent for the right to drink water the principle is the same in regard to all unjust laws few persons could reasonably feel compensated for the arbitrary destruction of their rights by having the order for their destruction made known beforehand in terms so distinct and unequivocal as to admit of neither mistake nor evasion yet this is all the compensation that such laws offer whether therefore written laws correspond with or differ from the natural they are to be condemned in the first case they are useless repetitions introducing labor and obscurity in the latter case they are positive violations of men's rights there would be substantially the same reason in enacting mathematics by statute that there is an enacting natural law whenever the natural law is sufficiently men's minds to justify its being enacted it is sufficiently certain to need no enactment on the other hand until it be thus certain there is danger of doing injustice by enacting it it should therefore be left open to be discussed by anybody who may be disposed to question it and to be judged of by the proper tribunal the judiciary note this condemnation of written laws must of course be understood as applying only to the 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 principles of justice and they must of course be written because they do not exist as fixed principles or laws of nature and footnote it is not necessary that legislators should enact natural law in order that it may be known to the people because that would be presuming that the legislators already understood it better than the people a fact of which I am not aware that they have ever here to fore given any very satisfactory evidence the same sources of knowledge on the subject are open to the people that are open to the legislators and the people must be presumed to know it as well as they the objections made to natural law on the ground of obscurity are wholly unfounded it is true it must be learned like any other science but it is equally true that it is very easily learned although as illimitable in its applications to the infinite relations of men to each other it is nevertheless made up of simple elementary principles of the truth and justice of which every ordinary mind has an almost intuitive perception it is the science of justice and almost all men have the same perceptions of what constitutes justice or of what justice requires when they understand alike from which their inferences are to be drawn men living in contract with each other and having intercourse together cannot avoid learning natural law to a very great extent even if they would the dealings of men with men their separate possessions and their individual wants are continually forcing upon their minds the questions is this act just or is it unjust is this thing mine or is it his and these are questions of natural law questions which in regard to the great mass of cases are answered alike by the human mind everywhere children learn many principles of natural law at a very early age for example they learn that when one child has picked up an apple or a flower it is his and that his associates must not take it against his will they also learn that if he voluntarily exchanged his apple or flower with a playmate for some article of desire he has thereby surrendered his right to it and must not reclaim it these are the fundamental principles of natural law which govern most of the greatest interests of individuals in society yet children learn them earlier than they learn that three and three are six or five and five children talk of enacting natural law by statute that it may be known it would hardly be extravagant to say that in nine cases in ten men learn it before they learn the language by which we describe it nevertheless numerous treatises are written on it as on other sciences the decision of courts containing their opinions upon the almost endless variety of cases that have come before them are reported and these reports are condensed codified and digested so as to give in a small compass the facts and the opinions of the courts as to the law resulting from them and these treatises codes and digest are open to be read of all men and a man has the same excuse for being ignorant of arithmetic or any other science that he has for being ignorant of natural law he can learn it as well if he will without it being enacted as he could if it were if our governments would but themselves adhere to natural law there would be little occasion to complain of the ignorance of the people in regard to it the popular ignorance of the law is attributed mainly to the innovations that have been made upon natural law by legislation whereby our system has become an incongruous mixture of natural and statute law with no uniform principle pervading it to learn such a system if system it can be called and if learned it can be is a matter of very similar difficulty to what it would be to learn a system of mathematics which should consist of the mathematics of nature interspersed with such other mathematics as might be created by legislation in violation of all the natural principles of numbers and quantities but whether the difficulties of learning natural law be greater or less than here represented they exist in the nature of things and cannot be removed legislation instead of removing only increases them this it does by innovating upon natural truth and principles and introducing jargon and contradiction in the place of order, analogy consistency and uniformity further than this legislation does not even profess to remove the obscurity of natural law that is no part of its object it only professes to substitute something arbitrary in the place of natural law legislators generally have the sense to see that legislation will not make natural law any clearer than it is neither is it the object of legislation to establish the authority of natural law legislators have the sense to see that they can add nothing to the authority of natural law and that it will stand on its own authority unless they overturn it the whole object of legislation accepting that legislation which merely makes regulations and provides instrumentalities for carrying other laws into effect is to overturn natural law and substitute for it the arbitrary will of power in other words the whole object of it is to destroy men's rights at least such is its only effect and its designs must be inferred from its effect taking all the statues in the country there probably is not one in a hundred except the auxiliary ones just mentioned that does not violate natural law that does not invade some right or other yet the advocates of arbitrary legislation are continually practicing the fraud of pretending that unless the legislature make the laws the laws will not be known the whole object of the fraud is to secure to the government the authority of making laws that never ought to be known in addition to the authority already cited of Sir William Jones as to the certainty of natural law and the uniformity of men's opinions in regard to it I may add the following there is that great simplicity and plainness in the common law that Lord Koch has gone so far as to assert and Lord Bacon nearly seconds him in observing that he never knew two questions arise merely upon common law but that they were mostly owning to statutes third enormous 157-8 if it still be said that juries would disagree as to what was the 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 taking it random from the people at large should unanimously decide a question of natural justice one way and that twelve other men 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 a new trial end of chapter 5 part 2