688 lines
37 KiB
Markdown
688 lines
37 KiB
Markdown
|
# JURIES OF THE PRESENT DAY ILLEGAL
|
|||
|
|
|||
|
|
|||
|
It may probably be safely asserted that there are, at this day, no legal
|
|||
|
juries, either in England or America. And if there are no legal juries,
|
|||
|
there is, of course, no legal trial, nor “judgment,” by jury.
|
|||
|
|
|||
|
In saying that there are probably no legal juries, I mean that there are
|
|||
|
probably no juries appointed in conformity with the principles of the
|
|||
|
_common law_.
|
|||
|
|
|||
|
The term _jury_ is a technical one, derived from the common law; and
|
|||
|
when the American constitutions provide for the trial by jury, they
|
|||
|
provide for the _common law_ trial by jury; and not merely for any trial
|
|||
|
by jury that the government itself may chance to invent, and call by
|
|||
|
that name. It is the _thing_, and not merely the _name_, that is
|
|||
|
guarantied. Any legislation, therefore, that infringes any _essential
|
|||
|
principle_ of the _common law_, in the selection of jurors, is
|
|||
|
unconstitutional; and the juries selected in accordance with such
|
|||
|
legislation are, of course, illegal, and their judgments void.
|
|||
|
|
|||
|
It will also be shown, in a subsequent chapter,[^79] that since Magna
|
|||
|
Carta, the legislative power in England (whether king or parliament) has
|
|||
|
never had any constitutional authority to infringe, by legislation, any
|
|||
|
essential principle of the common law in the selection of jurors. All
|
|||
|
such legislation is as much unconstitutional and void, as though it
|
|||
|
abolished the trial by jury altogether. In reality it does abolish it.
|
|||
|
|
|||
|
What, then, are the _essential principles_ of the common law,
|
|||
|
controlling the selection of jurors?
|
|||
|
|
|||
|
They are two.
|
|||
|
|
|||
|
1. That _all_ the freemen, or adult male members of the state, shall be
|
|||
|
eligible as jurors.[^80]
|
|||
|
|
|||
|
Any legislation which requires the selection of jurors to be made from a
|
|||
|
less number of freemen than the whole, makes the jury selected an
|
|||
|
illegal one.
|
|||
|
|
|||
|
If a part only of the freemen, or members of the state, are eligible as
|
|||
|
jurors, the jury no longer represent “the country,” but only a part of
|
|||
|
“the country.”
|
|||
|
|
|||
|
If the selection of jurors can be restricted to any less number of
|
|||
|
freemen than the whole, it can be restricted to a very small proportion
|
|||
|
of the whole; and thus the government be taken out of the hands of “the
|
|||
|
country,” or the whole people, and be thrown into the hands of a few.
|
|||
|
|
|||
|
That, at common law, the whole body of freemen were eligible as jurors
|
|||
|
is sufficiently proved, not only by the reason of the thing, but by the
|
|||
|
following evidence:
|
|||
|
|
|||
|
1. Everybody must be presumed eligible, until the contrary be shown. We
|
|||
|
have no evidence, that I am aware of, of a prior date to Magna Carta, to
|
|||
|
_disprove_ that all freemen were eligible as jurors, unless it be the
|
|||
|
law of Ethelred, which requires that they be elderly[^81] men. Since no
|
|||
|
specific age is given, it is probable, I think, that this statute meant
|
|||
|
nothing more than that they be more than twenty-one years old. If it
|
|||
|
meant anything more, it was probably contrary to the common law, and
|
|||
|
therefore void.
|
|||
|
|
|||
|
2. Since Magna Carta, we have evidence showing quite conclusively that
|
|||
|
all freemen, above the age of twenty-one years, were eligible as jurors.
|
|||
|
|
|||
|
The _Mirror of Justices_, (written within a century after Magna Carta,)
|
|||
|
in the section “_Of Judges_”—that is, _jurors_—says:
|
|||
|
|
|||
|
> “All those who are not forbidden by law may be judges (jurors). To
|
|||
|
> women it is forbidden by law that they be judges; and thence it is,
|
|||
|
> that feme coverts are exempted to do suit in inferior courts. On the
|
|||
|
> other part, a villein cannot be a judge, by reason of the two
|
|||
|
> estates, which are repugnants; persons attainted of false judgments
|
|||
|
> cannot be judges, nor infants, nor any under the age of twenty-one
|
|||
|
> years, nor infected persons, nor idiots, nor madmen, nor deaf, nor
|
|||
|
> dumb, nor parties in the pleas, nor men excommunicated by the bishop,
|
|||
|
> nor criminal persons. * * And those who are not of the Christian
|
|||
|
> faith cannot be judges, nor those who are out of the king’s
|
|||
|
> allegiance.”—_Mirror of Justices_, 59-60.
|
|||
|
|
|||
|
In the section “_Of Inferior Courts_,” it is said:
|
|||
|
|
|||
|
> “From the first assemblies came consistories, which we now call
|
|||
|
> courts, and that in divers places, and in divers manners; whereof the
|
|||
|
> sheriffs held one monthly, or every five weeks, according to the
|
|||
|
> greatness or largeness of the shires. And these courts are called
|
|||
|
> county courts, _where the judgment is by the suitors_, if there be no
|
|||
|
> writ, and is by warrant of jurisdiction ordinary. The other inferior
|
|||
|
> courts are the courts of every lord of the fee, to the likeness of
|
|||
|
> the hundred courts. * * There are other inferior courts which the
|
|||
|
> bailiffs hold in every hundred, from three weeks to three weeks, _by
|
|||
|
> the suitors of the freeholders of the hundred. All the tenants within
|
|||
|
> the fees are bounden to do their suit there_, and that not for the
|
|||
|
> service of their persons, but for the service of their fees. But
|
|||
|
> women, infants within the age of twenty-one years, deaf, dumb,
|
|||
|
> idiots, those who are indicted or appealed of mortal felony, before
|
|||
|
> they be acquitted, diseased persons, and excommunicated persons are
|
|||
|
> exempted from doing suit.”—_Mirror of Justices_, 50-51.
|
|||
|
|
|||
|
In the section “_Of the Sheriff’s Turns_,” it is said:
|
|||
|
|
|||
|
> “The sheriffs by ancient ordinances hold several meetings twice in
|
|||
|
> the year in every hundred; _where all the freeholders within the
|
|||
|
> hundred_ are bound to appear for the service of their fees.”—_Mirror
|
|||
|
> of Justices_, 50.
|
|||
|
|
|||
|
The following statute was passed by Edward I., seventy years after Magna
|
|||
|
Carta:
|
|||
|
|
|||
|
> “Forasmuch also as sheriffs, hundreders, and bailiffs of liberties,
|
|||
|
> have used to grieve those which be placed under them, putting in
|
|||
|
> assizes and juries men diseased and decrepit, and having continual or
|
|||
|
> sudden disease; and men also that dwelled not in the country at the
|
|||
|
> time of the summons; and summon also an unreasonable number of
|
|||
|
> jurors, for to extort money from some of them, for letting them go
|
|||
|
> in peace, and so the assizes and juries pass many times by poor men,
|
|||
|
> and the rich abide at home by reason of their bribes; it is ordained
|
|||
|
> that from henceforth in one assize no more shall be summoned than
|
|||
|
> four and twenty; and old men above three score and ten years, being
|
|||
|
> continually sick, or being diseased at the time of the summons, or
|
|||
|
> not dwelling in that country, shall not be put in juries of petit
|
|||
|
> assizes.”—_St. 13 Edward I._, ch. 38. (1285.)
|
|||
|
|
|||
|
Although this command to the sheriffs and other officers, not to summon,
|
|||
|
as jurors, those who, from age and disease, were physically incapable of
|
|||
|
performing the duties, may not, of itself, afford any absolute or legal
|
|||
|
implication, by which we can determine precisely who were, and who were
|
|||
|
not, eligible as jurors at common law, yet the exceptions here made
|
|||
|
nevertheless carry a seeming confession with them that, at common law,
|
|||
|
all male adults were eligible as jurors.
|
|||
|
|
|||
|
But the main principle of the feudal system itself shows that _all_ the
|
|||
|
full and free adult male members of the state—that is, all who were
|
|||
|
free born, and had not lost their civil rights by crime, or
|
|||
|
otherwise—_must_, at common law, have been eligible as jurors. What was
|
|||
|
that principle? It was, that the state rested for support upon the land,
|
|||
|
and not upon taxation levied upon the people personally. The lands of
|
|||
|
the country were considered the property of the state, and were made to
|
|||
|
support the state _in this way_. A portion of them was set apart to the
|
|||
|
king, the rents of which went to pay his personal and official
|
|||
|
expenditures, not including the maintenance of armies, or the
|
|||
|
administration of justice. War and the administration of justice were
|
|||
|
provided for in the following manner. The freemen, or the freeborn adult
|
|||
|
male members of the state—who had not forfeited their political
|
|||
|
rights—were entitled to land _of right_, (until all the land was taken
|
|||
|
up,) on condition of their rendering certain military and civil services
|
|||
|
to the state. The military services consisted in serving personally as
|
|||
|
soldiers, or contributing an equivalent in horses, provisions, or other
|
|||
|
military supplies. The civil services consisted, among other things, in
|
|||
|
serving as jurors (and, it would appear, as witnesses) in the courts of
|
|||
|
justice. For these services they received no compensation other than
|
|||
|
the use of their lands. In this way the state was sustained; and the
|
|||
|
king had no power to levy additional burdens or taxes upon the people.
|
|||
|
The persons holding lands on these terms were called _freeholders_—in
|
|||
|
later times _freemen_—meaning free and full members of the state.
|
|||
|
|
|||
|
Now, as the principle of the system was that the freeholders held their
|
|||
|
lands of the state, on the condition of rendering these military and
|
|||
|
civil services as _rents_ for their lands, the principle implies that
|
|||
|
_all_ the freeholders were liable to these rents, and were therefore
|
|||
|
eligible as jurors. Indeed, I do not know that it has ever been doubted
|
|||
|
that, at common law, _all_ the freeholders were eligible as jurors. If
|
|||
|
all had not been eligible, we unquestionably should have had abundant
|
|||
|
evidence of the exceptions. And if anybody, at this day, allege any
|
|||
|
exceptions, the burden will be on him to prove them. The presumption
|
|||
|
clearly is that _all_ were eligible.
|
|||
|
|
|||
|
The first invasion, which I find made, by the English statutes, upon
|
|||
|
this common law principle, was made in 1285, seventy years after Magna
|
|||
|
Carta. It was then enacted as follows:
|
|||
|
|
|||
|
> “Nor shall any be put in assizes or juries, though they ought to be
|
|||
|
> taken in their own shire, that hold a tenement of less than the value
|
|||
|
> of _twenty shillings yearly_. And if such assizes and juries be taken
|
|||
|
> out of the shire, no one shall be placed in them who holds a tenement
|
|||
|
> of less value than forty shillings yearly at the least, except such
|
|||
|
> as be witnesses in deeds or other writings, whose presence is
|
|||
|
> necessary, so that they be able to travel.”—_St. 13 Edward I._, ch.
|
|||
|
> 38. (1285.)
|
|||
|
|
|||
|
The next invasion of the common law, in this particular, was made in
|
|||
|
1414, about two hundred years after Magna Carta, when it was enacted:
|
|||
|
|
|||
|
> “That no person shall be admitted to pass in any inquest upon trial
|
|||
|
> of the death of a man, nor in any inquest betwixt party and party in
|
|||
|
> plea real, nor in plea personal, whereof the debt or the damage
|
|||
|
> declared amount to forty marks, if the same person have not lands or
|
|||
|
> tenements of the yearly value of _forty shillings above all charges
|
|||
|
> of the same_.”—_2 Henry V._, st. 2, ch. 3. (1414.)
|
|||
|
|
|||
|
Other statutes on this subject of the property qualifications of jurors,
|
|||
|
are given in the note.[^82]
|
|||
|
|
|||
|
From these statutes it will be seen that, since 1285, seventy years
|
|||
|
after Magna Carta, the common law right of all free British subjects to
|
|||
|
eligibility as jurors has been abolished, and the qualifications of
|
|||
|
jurors have been made a subject of arbitrary legislation. In other
|
|||
|
words, the government has usurped the authority of _selecting_ the
|
|||
|
jurors that were to sit in judgment upon its own acts. This is
|
|||
|
destroying the vital principle of the trial by jury itself, which is
|
|||
|
that the legislation of the government shall be subjected to the
|
|||
|
judgment of a tribunal, taken indiscriminately from the whole people,
|
|||
|
without any choice by the government, and over which the government can
|
|||
|
exercise no control. If the government can select the jurors, it will,
|
|||
|
of course, select those whom it supposes will be favorable to its
|
|||
|
enactments. And an exclusion of _any_ of the freemen from eligibility is
|
|||
|
a _selection_ of those not excluded.
|
|||
|
|
|||
|
It will be seen, from the statutes cited, that the most absolute
|
|||
|
authority over the jury box—that is, over the right of the people to
|
|||
|
sit in juries—has been usurped by the government; that the
|
|||
|
qualifications of jurors have been repeatedly changed, and made to vary
|
|||
|
from a freehold of _ten shillings yearly_, to one of “_twenty pounds by
|
|||
|
the year at least above reprises_.” They have also been made different,
|
|||
|
in the counties of Southampton, Surrey, and Sussex, from what they were
|
|||
|
in the other counties; different in Wales from what they were in
|
|||
|
England; and different in the city of London, and in the county of
|
|||
|
Middlesex, from what they were in any other part of the kingdom.
|
|||
|
|
|||
|
But this is not all. The government has not only assumed arbitrarily to
|
|||
|
classify the people, on the basis of property, but it has even assumed
|
|||
|
to give to some of its judges entire and absolute personal discretion in
|
|||
|
the selection of the jurors to be impanelled in criminal cases, as the
|
|||
|
following statutes show.
|
|||
|
|
|||
|
> “Be it also ordained and enacted by the same authority, that all
|
|||
|
> panels hereafter to be returned, which be not at the suit of any
|
|||
|
> party, that shall be made and put in afore any justice of gaol
|
|||
|
> delivery or justices of peace in their open sessions _to inquire for
|
|||
|
> the king, shall hereafter be reformed by additions and taking out of
|
|||
|
> names of persons by discretion of the same justices before whom such
|
|||
|
> panel shall be returned; and the same justices shall hereafter
|
|||
|
> command the sheriff, or his ministers in his absence, to put other
|
|||
|
> persons in the same panel by their discretions; and that panel so
|
|||
|
> hereafter to be made, to be good and lawful_. This act to endure only
|
|||
|
> to the next Parliament.”—_11 Henry VII._, ch. 24, sec. 6. (1495.)
|
|||
|
|
|||
|
This act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the
|
|||
|
end of the then next Parliament.
|
|||
|
|
|||
|
It was reënacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.)
|
|||
|
|
|||
|
_These acts gave unlimited authority to the king’s justices to pack
|
|||
|
juries at their discretion; and abolished the last vestige of the common
|
|||
|
law right of the people to sit as jurors, and judge of their own
|
|||
|
liberties, in the courts to which the acts applied._
|
|||
|
|
|||
|
Yet, as matters of law, these statutes were no more clear violations of
|
|||
|
the common law, the fundamental and paramount “law of the land,” than
|
|||
|
were those statutes which affixed the property qualifications before
|
|||
|
named; because, if the king, or the government, can select the jurors on
|
|||
|
the ground of property, it can select them on any other ground
|
|||
|
whatever.
|
|||
|
|
|||
|
Any infringement or restriction of the common law right of the whole
|
|||
|
body of the freemen of the kingdom to eligibility as jurors, was legally
|
|||
|
an abolition of the trial by jury itself. The juries no longer
|
|||
|
represented “the country,” but only a part of the country; that part,
|
|||
|
too, on whose favor the government chose to rely for the maintenance of
|
|||
|
its power, and which it therefore saw fit to select as being the most
|
|||
|
reliable instruments for its purposes of oppression towards the rest.
|
|||
|
And the selection was made on the same principle, on which tyrannical
|
|||
|
governments generally select their supporters, viz., that of
|
|||
|
conciliating those who would be most dangerous as enemies, and most
|
|||
|
powerful as friends—that is, the wealthy.[^83]
|
|||
|
|
|||
|
These restrictions, or indeed any one of them, of the right of
|
|||
|
eligibility as jurors, was, in principle, a complete abolition of the
|
|||
|
English constitution; or, at least, of its most vital and valuable part.
|
|||
|
It was, in principle, an assertion of a right, on the part of the
|
|||
|
government, to _select_ the individuals who were to determine the
|
|||
|
authority of its own laws, and the extent of its own powers. It was,
|
|||
|
therefore, _in effect_, the assertion of a right, on the part of the
|
|||
|
government itself, to determine its own powers, and the authority of its
|
|||
|
own legislation, over the people; and a denial of all right, on the part
|
|||
|
of the people, to judge of or determine their own liberties against the
|
|||
|
government. It was, therefore, in reality, a declaration of entire
|
|||
|
absolutism on the part of the government. It was an act as purely
|
|||
|
despotic, _in principle_, as would have been the express abolition of
|
|||
|
all juries whatsoever. By “the law of the land,” which the kings were
|
|||
|
sworn to maintain, every free adult male British subject was eligible to
|
|||
|
the jury box, with full power to exercise his own judgment as to the
|
|||
|
authority and obligation of every statute of the king, which might come
|
|||
|
before him. But the principle of these statutes (fixing the
|
|||
|
qualifications of jurors) is, that nobody is to sit in judgment upon the
|
|||
|
acts or legislation of the king, or the government, except those whom
|
|||
|
the government itself shall select for that purpose. A more complete
|
|||
|
subversion of the essential principles of the English constitution could
|
|||
|
not be devised.
|
|||
|
|
|||
|
The juries of England are illegal for another reason, viz., that the
|
|||
|
statutes cited require the jurors (except in London and a few other
|
|||
|
places) to be _freeholders_. All the other free British subjects are
|
|||
|
excluded; whereas, at common law, all such subjects are eligible to sit
|
|||
|
in juries, whether they be freeholders or not.
|
|||
|
|
|||
|
It is true, the ancient common law required the jurors to be
|
|||
|
freeholders; but the term _freeholder_ no longer expresses the same idea
|
|||
|
that it did in the ancient common law; because no land is now holden in
|
|||
|
England on the same principle, or by the same tenure, as that on which
|
|||
|
all the land was held in the early times of the common law.
|
|||
|
|
|||
|
As has heretofore been mentioned, in the early times of the common law
|
|||
|
the land was considered the property of the state; and was all holden by
|
|||
|
the _tenants_, so called, (that is, _holders_,) on the condition of
|
|||
|
their rendering certain military and civil services to the state, (or to
|
|||
|
the king as the representative of the state,) under the name of _rents_.
|
|||
|
Those who held lands on these terms were called free _tenants_, that is,
|
|||
|
_free holders_—meaning free persons, or members of the state, holding
|
|||
|
lands—to distinguish them from villeins, or serfs, who were not members
|
|||
|
of the state, but held their lands by a more servile tenure, and also to
|
|||
|
distinguish them from persons of foreign birth, outlaws, and all other
|
|||
|
persons, who were not members of the state.
|
|||
|
|
|||
|
Every freeborn adult male Englishman (who had not lost his civil rights
|
|||
|
by crime or otherwise) was entitled to land of _right_; that is, by
|
|||
|
virtue of his civil freedom, or membership of the body politic. Every
|
|||
|
member of the state was therefore a freeholder; and every freeholder was
|
|||
|
a member of the state. And the members of the state were therefore
|
|||
|
called freeholders. But what is material to be observed, is, that a
|
|||
|
man’s right to land was an incident to his _civil freedom_; not his
|
|||
|
civil freedom an incident to his right to land. He was a freeholder
|
|||
|
because he was a _freeborn_ member of the state; and not a freeborn
|
|||
|
member of the state because he was a freeholder; for this last would be
|
|||
|
an absurdity.
|
|||
|
|
|||
|
As the tenures of lands changed, the term _freeholder_ lost its original
|
|||
|
significance, and no longer described a man who held land of the state
|
|||
|
by virtue of his civil freedom, but only one who held it in
|
|||
|
fee-simple—that is, free of any liability to military or civil
|
|||
|
services. But the government, in fixing the qualifications of jurors,
|
|||
|
has adhered to the term _freeholder_ after that term has ceased to
|
|||
|
express the _thing_ originally designated by it.
|
|||
|
|
|||
|
The principle, then, of the common law, was, that every freeman, or
|
|||
|
freeborn male Englishman, of adult age, &c., was eligible to sit in
|
|||
|
juries, by virtue of his civil freedom, or his being a member of the
|
|||
|
state, or body politic. But the principle of the present English
|
|||
|
statutes is, that a man shall have a right to sit in juries because he
|
|||
|
owns lands in fee-simple. At the common law a man was _born_ to the
|
|||
|
right to sit in juries. By the present statutes he _buys_ that right
|
|||
|
when he buys his land. And thus this, the greatest of all the political
|
|||
|
rights of an Englishman, has become a mere article of merchandise; a
|
|||
|
thing that is bought and sold in the market for what it will bring.
|
|||
|
|
|||
|
Of course, there can be no legality in such juries as these; but only in
|
|||
|
juries to which every free or natural born adult male Englishman is
|
|||
|
eligible.
|
|||
|
|
|||
|
The second essential principle of the common law, controlling the
|
|||
|
selection of jurors, is, that when the selection of the actual jurors
|
|||
|
comes to be made, (from the whole body of male adults,) that selection
|
|||
|
shall be made in some mode that excludes the possibility of choice _on
|
|||
|
the part of the government_.
|
|||
|
|
|||
|
Of course, this principle forbids the selection to be made _by any
|
|||
|
officer of the government_.
|
|||
|
|
|||
|
There seem to have been at least three modes of selecting the jurors, at
|
|||
|
the common law. 1. By lot.[^84] 2. Two knights, or other freeholders,
|
|||
|
were appointed, (probably by the sheriff,) to select the jurors. 3. By
|
|||
|
the sheriff, bailiff, or other person, who held the court, or rather
|
|||
|
acted as its ministerial officer. Probably the latter mode may have been
|
|||
|
the most common, although there may be some doubt on this point.
|
|||
|
|
|||
|
At the common law the sheriffs, bailiffs, and other officers _were
|
|||
|
chosen by the people, instead of being appointed by the king_. (_4
|
|||
|
Blackstone_, 413. _Introduction to Gilbert’s History of the Common
|
|||
|
Pleas_, p. 2, _note_, and p. 4.) This has been shown in a former
|
|||
|
chapter.[^85] At common law, therefore, jurors selected by these officers
|
|||
|
were legally selected, so far as the principle now under discussion is
|
|||
|
concerned; that is, they were not selected by any officer who was
|
|||
|
dependent on the government.
|
|||
|
|
|||
|
But in the year 1315, one hundred years after Magna Carta, the choice of
|
|||
|
sheriffs was taken from the people, and it was enacted:
|
|||
|
|
|||
|
> “That the sheriffs shall henceforth be assigned by the chancellor,
|
|||
|
> treasurer, barons of the exchequer, and by the justices. And in the
|
|||
|
> absence of the chancellor, by the treasurer, barons and
|
|||
|
> justices.”—_9 Edward II._, st. 2. (1315.)
|
|||
|
|
|||
|
These officers, who appointed the sheriffs, were themselves appointed by
|
|||
|
the king, and held their offices during his pleasure. Their appointment
|
|||
|
of sheriffs was, therefore, equivalent to an appointment by the king
|
|||
|
himself. And the sheriffs, thus appointed, held their offices only
|
|||
|
during the pleasure of the king, and were of course mere tools of the
|
|||
|
king; and their selection of jurors was really a selection by the king
|
|||
|
himself. In this manner the king usurped the selection of the jurors who
|
|||
|
were to sit in judgment upon his own laws.
|
|||
|
|
|||
|
Here, then, was another usurpation, by which the common law trial by
|
|||
|
jury was destroyed, so far as related to the county courts, in which the
|
|||
|
sheriffs presided, and which were the most important courts of the
|
|||
|
kingdom. From this cause alone, if there were no other, there has not
|
|||
|
been a legal jury in a _county_ court in England, for more than five
|
|||
|
hundred years.
|
|||
|
|
|||
|
In nearly or quite all the States of the United States the juries are
|
|||
|
illegal, for one or the other of the same reasons that make the juries
|
|||
|
in England illegal.
|
|||
|
|
|||
|
In order that the juries in the United States may be legal—that is, in
|
|||
|
accordance with the principles of the common law—it is necessary that
|
|||
|
every adult male member of the state should have his name in the jury
|
|||
|
box, or be eligible as a juror. Yet this is the case in hardly a single
|
|||
|
state.
|
|||
|
|
|||
|
In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the
|
|||
|
jurors are required to be _freeholders_. But this requirement is
|
|||
|
illegal, for the reason that the term _freeholder_, in this country, has
|
|||
|
no meaning analogous to the meaning it had in the ancient common law.
|
|||
|
|
|||
|
In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be
|
|||
|
“freeholders or householders.” Each of these requirements is illegal.
|
|||
|
|
|||
|
In Florida, they are required to be “householders.”
|
|||
|
|
|||
|
In Connecticut, Maine, Ohio, and Georgia, jurors are required to have
|
|||
|
the qualifications of “electors.”
|
|||
|
|
|||
|
In Virginia, they are required to have a property qualification of one
|
|||
|
hundred dollars.
|
|||
|
|
|||
|
In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana,
|
|||
|
Michigan, and Wisconsin, certain civil authorities of the towns, cities,
|
|||
|
and counties are authorized to select, once in one, two, or three years,
|
|||
|
a certain number of the people—a small number compared with the
|
|||
|
whole—from whom jurors are to be taken when wanted; thus disfranchising
|
|||
|
all except the few thus selected.
|
|||
|
|
|||
|
In Maine and Vermont, the inhabitants, by vote in town meeting, have a
|
|||
|
veto upon the jurors selected by the authorities of the town.
|
|||
|
|
|||
|
In Massachusetts, the inhabitants, by vote in town meeting, can strike
|
|||
|
out any names inserted by the authorities, and insert others; thus
|
|||
|
making jurors elective by the people, and, of course, representatives
|
|||
|
only of a majority of the people.
|
|||
|
|
|||
|
In Illinois, the jurors are selected, for each term of court, by the
|
|||
|
county commissioners.
|
|||
|
|
|||
|
In North Carolina, “_the courts of pleas and quarter sessions_ * * shall
|
|||
|
select the names of such persons only as are freeholders, and as are
|
|||
|
well qualified to act as jurors, &c.; thus giving the courts power to
|
|||
|
pack the juries.”—(_Revised Statutes_, 147.)
|
|||
|
|
|||
|
In Arkansas, too, “It shall be the duty of the _county court_ of each
|
|||
|
county * * to make out and cause to be delivered to the sheriff a list
|
|||
|
of not less than sixteen, nor more than twenty-three persons, qualified
|
|||
|
to serve as _grand_ jurors;” and the sheriff is to summon such persons
|
|||
|
to serve as _grand_ jurors.
|
|||
|
|
|||
|
In Tennessee, also, the jurors are to be selected by the _county
|
|||
|
courts_.
|
|||
|
|
|||
|
In Georgia, the jurors are to be selected by “the justices of the
|
|||
|
inferior courts of each county, together with the sheriff and clerk, or
|
|||
|
a majority of them.”
|
|||
|
|
|||
|
In Alabama, “the sheriff, judge of the county court, and clerks of the
|
|||
|
circuit and county courts,” or “a majority of” them, select the jurors.
|
|||
|
|
|||
|
In Virginia, the jurors are selected by the sheriffs; but the sheriffs
|
|||
|
are appointed by the governor of the state, and that is enough to make
|
|||
|
the juries illegal. Probably the same objection lies against the
|
|||
|
legality of the juries in some other states.
|
|||
|
|
|||
|
How jurors are appointed, and what are their qualifications, in New
|
|||
|
Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina,
|
|||
|
Kentucky, Iowa, Texas, and California, I know not. There is little doubt
|
|||
|
that there is some valid objection to them, of the kinds already
|
|||
|
suggested, in all these states.
|
|||
|
|
|||
|
In regard to jurors in the courts of the United States, it is enacted,
|
|||
|
by act of Congress:
|
|||
|
|
|||
|
> “That jurors to serve in the courts of the United States, in each
|
|||
|
> state respectively, shall have the like qualifications, and be
|
|||
|
> entitled to the like exemptions, as jurors of the highest court of
|
|||
|
> law of such state now have and are entitled to, and shall hereafter,
|
|||
|
> from time to time, have and be entitled to, and shall be designated
|
|||
|
> by ballot, lot, or otherwise, according to the mode of forming such
|
|||
|
> juries now practised and hereafter to be practised therein, in so far
|
|||
|
> as such mode may be practicable by the courts of the United States,
|
|||
|
> or the officers thereof; and for this purpose, the said courts shall
|
|||
|
> have power to make all necessary rules and regulations for conforming
|
|||
|
> the designation and empanelling of jurors, in substance, to the laws
|
|||
|
> and usages now in force in such state; and, further, shall have
|
|||
|
> power, by rule or order, from time to time, to conform the same to
|
|||
|
> any change in these respects which may be hereafter adopted by the
|
|||
|
> legislatures of the respective states for the state courts.”—_St._
|
|||
|
> 1840, ch. 47, _Statutes at Large_, vol. 5, p. 394.
|
|||
|
|
|||
|
In this corrupt and lawless manner, Congress, instead of taking care to
|
|||
|
preserve the trial by jury, so far as they might, by providing for the
|
|||
|
appointment of legal juries—incomparably the most important of all our
|
|||
|
judicial tribunals, and the only ones on which the least reliance can be
|
|||
|
placed for the preservation of liberty—have given the selection of them
|
|||
|
over entirely to the control of an indefinite number of state
|
|||
|
legislatures, and thus authorized each state legislature to adapt the
|
|||
|
juries of the United States to the maintenance of any and every system
|
|||
|
of tyranny that may prevail in such state.
|
|||
|
|
|||
|
Congress have as much constitutional right to give over all the
|
|||
|
functions of the United States government into the hands of the state
|
|||
|
legislatures, to be exercised within each state in such manner as the
|
|||
|
legislature of such state shall please to exercise them, as they have to
|
|||
|
thus give up to these legislatures the selection of juries for the
|
|||
|
courts of the United States.
|
|||
|
|
|||
|
There has, probably, never been a legal jury, nor a legal trial by jury,
|
|||
|
in a single court of the United States, since the adoption of the
|
|||
|
constitution.
|
|||
|
|
|||
|
These facts show how much reliance can be placed in written
|
|||
|
constitutions, to control the action of the government, and preserve the
|
|||
|
liberties of the people.
|
|||
|
|
|||
|
If the real trial by jury had been preserved in the courts of the United
|
|||
|
States—that is, if we had had legal juries, and the jurors had known
|
|||
|
their rights—it is hardly probable that one tenth of the past
|
|||
|
legislation of Congress would ever have been enacted, or, at least,
|
|||
|
that, if enacted, it could have been enforced.
|
|||
|
|
|||
|
Probably the best mode of appointing jurors would be this: Let the names
|
|||
|
of _all_ the adult male members of the state, in each township, be kept
|
|||
|
in a jury box, by the officers of the township; and when a court is to
|
|||
|
be held for a county or other district, let the officers of a sufficient
|
|||
|
number of townships be required (without seeing the names) to draw out a
|
|||
|
name from their boxes respectively, to be returned to the court as a
|
|||
|
juror. This mode of appointment would guard against collusion and
|
|||
|
selection; and juries so appointed would be likely to be a fair epitome
|
|||
|
of “the country.”
|
|||
|
|
|||
|
[Footnote 79: On the English Constitution.]
|
|||
|
|
|||
|
[Footnote 80: Although all the freemen are legally eligible as jurors,
|
|||
|
any one may nevertheless be challenged and set aside, at the trial, for
|
|||
|
any special _personal_ disqualification; such as mental or physical
|
|||
|
inability to perform the duties; having been convicted, or being under
|
|||
|
charge, of crime; interest, bias, &c. But it is clear that the common
|
|||
|
law allows none of these points to be determined by the court, but only
|
|||
|
by “_triers_.”]
|
|||
|
|
|||
|
[Footnote 81: What was the precise meaning of the Saxon word, which I
|
|||
|
have here called _elderly_, I do not know. In the Latin translations it
|
|||
|
is rendered by _seniores_, which may perhaps mean simply those who have
|
|||
|
attained their majority.]
|
|||
|
|
|||
|
[Footnote 82: In 1483 it was enacted, by a statute entitled “Of what
|
|||
|
credit and estate those jurors must be which shall be impanelled in the
|
|||
|
Sheriff’s Turn.”
|
|||
|
|
|||
|
> “That no bailiff nor other officer from henceforth return or impanel
|
|||
|
> any such person in any shire of England, to be taken or put in or
|
|||
|
> upon any inquiry in any of the said Turns, but such as be of good
|
|||
|
> name and fame, and having lands and tenements of freehold within the
|
|||
|
> same shires, to the yearly value of _twenty shillings_ at the least,
|
|||
|
> or else lands and tenements holden by custom of manor, commonly
|
|||
|
> called _copy-hold_, within the said shires, to the yearly value of
|
|||
|
> twenty-six shillings eight pence over all charges at the least.”—_1
|
|||
|
> Richard III._, ch. 4. (1483.)
|
|||
|
|
|||
|
> In 1486 it was enacted, “That the justices of the peace of every
|
|||
|
> shire of this realm for the time being may take, by their discretion,
|
|||
|
> an inquest, whereof every man shall have lands and tenements to the
|
|||
|
> yearly value of _forty shillings_ at the least, to inquire of the
|
|||
|
> concealments of others,” &c., &c.—_3 Henry VII._, ch. 1 (1486.)
|
|||
|
|
|||
|
A statute passed in 1494, in regard to jurors in the city of London,
|
|||
|
enacts:
|
|||
|
|
|||
|
> “That no person nor persons hereafter be impanelled, summoned, or
|
|||
|
> sworn in any jury or inquest in courts within the same city, (of
|
|||
|
> London,) except he be of lands, tenements, or goods and chattels, to
|
|||
|
> the value of _forty marks_;[^86] and that no person or persons
|
|||
|
> hereafter be impanelled, summoned, nor sworn in any jury or inquest
|
|||
|
> in any court within the said city, for lands or tenements, or action
|
|||
|
> personal, wherein the debt or damage amounteth to the sum of forty
|
|||
|
> marks, or above, except he be in lands, tenements, goods, or
|
|||
|
> chattels, to the value of _one hundred marks_.”—_11 Henry VII._, ch.
|
|||
|
> 21. (1494.)
|
|||
|
|
|||
|
The statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in
|
|||
|
London to have “_goods_ to the value of one hundred marks.”
|
|||
|
|
|||
|
> In 1494 it was enacted that “It shall be lawful to every sheriff of
|
|||
|
> the counties of _Southampton_, _Surrey_, _and Sussex_, to impanel and
|
|||
|
> summons twenty-four lawful men of such, inhabiting within the
|
|||
|
> precinct of his or their turns, as owe suit to the same turn, whereof
|
|||
|
> every one hath lands or freehold to the yearly value of _ten_
|
|||
|
> shillings, or copy-hold lands to the yearly value of _thirteen
|
|||
|
> shillings four pence_, above all charges within any of the said
|
|||
|
> counties, or men of less livelihood, if there be not so many there,
|
|||
|
> notwithstanding the statute of _1 Richard III._, ch. 4. To endure to
|
|||
|
> the next parliament.”—_11 Henry VII._, ch. 26. (1494.)
|
|||
|
|
|||
|
This statute was continued in force by _19 Henry VII._, ch. 16. (1503.)
|
|||
|
|
|||
|
> In 1531 it was enacted, “That every person or persons, being the
|
|||
|
> king’s natural subject born, which either by the name of citizen, or
|
|||
|
> of a freeman, or any other name, doth enjoy and use the liberties and
|
|||
|
> privileges of any city, borough, or town corporate, where he dwelleth
|
|||
|
> and maketh his abode, being worth in _movable goods and substance_ to
|
|||
|
> the clear value of _forty pounds_, be henceforth admitted in trials
|
|||
|
> of murders and felonies in every sessions and gaol delivery, to be
|
|||
|
> kept and holden in and for the liberty of such cities, boroughs, and
|
|||
|
> towns corporate, albeit they have no freehold; any act, statute, use,
|
|||
|
> custom, or ordinance to the contrary hereof notwithstanding.”—_23
|
|||
|
> Henry VIII._, ch. 13. (1531.)
|
|||
|
|
|||
|
> In 1585 it was enacted, “That in all cases where any jurors to be
|
|||
|
> returned for trial of any issue or issues joined in any of the
|
|||
|
> Queen’s majesty’s courts of King’s Bench, Common Pleas, and the
|
|||
|
> Exchequer, or before justices of assize, by the laws of this realm
|
|||
|
> now in force, ought to have estate of freehold in lands, tenements,
|
|||
|
> or hereditaments, of the clear yearly value of _forty shillings_,
|
|||
|
> that in every such case the jurors that shall be returned from and
|
|||
|
> after the end of this present session of parliament, shall every of
|
|||
|
> them have estate of freehold in lands, tenements, or hereditaments,
|
|||
|
> to the clear yearly value of _four pounds_ at the least.”—_27
|
|||
|
> Elizabeth_, ch. 6. (1585.)
|
|||
|
|
|||
|
> In 1664-5 it was enacted, “That all jurors (other than strangers upon
|
|||
|
> trials _per medietatem linguæ_) who are to be returned for the trials
|
|||
|
> of issues joined in any of (his) majesty’s courts of king’s bench,
|
|||
|
> common pleas, or the exchequer, or before justices of assize, or nisi
|
|||
|
> prius, oyer and terminer, gaol delivery, or general or quarter
|
|||
|
> sessions of the peace, from and after the twentieth day of April,
|
|||
|
> which shall be in the year of our Lord one thousand six hundred and
|
|||
|
> sixty-five, in any county of this realm of England, shall every of
|
|||
|
> them thon have, in their own name, or in trust for them, within the
|
|||
|
> same county, _twenty pounds by the year_, at least, above reprises,
|
|||
|
> in their own or their wives’ right, of freehold lands, or of ancient
|
|||
|
> demesne, or of rents in fee, fee-tail, or for life. And that in every
|
|||
|
> county within the dominion of Wales every such juror shall then have,
|
|||
|
> within the same, _eight pounds by the year_, at the least, above
|
|||
|
> reprises, in manner aforesaid. All which persons having such estate
|
|||
|
> as aforesaid are hereby enabled and made liable to be returned and
|
|||
|
> serve as jurors for the trial of issues before the justices
|
|||
|
> aforesaid, any law or statute to the contrary in any wise
|
|||
|
> notwithstanding.”—_16 and 17 Charles II._, ch. 3. (1664-5.)
|
|||
|
|
|||
|
By a statute passed in 1692, jurors in England are to have landed
|
|||
|
estates of the value of _ten pounds a year_; and jurors in Wales to have
|
|||
|
similar estates of the realm of _six pounds a year_.—_4 and 5 William
|
|||
|
and Mary_, ch. 24, sec. 14. (1692.)
|
|||
|
|
|||
|
By the same statute, (sec. 18,) persons may be returned to serve upon
|
|||
|
the _tales_ in any county of England, who shall have, within the same
|
|||
|
county, _five pounds by the year_, above reprises, in the manner
|
|||
|
aforesaid.
|
|||
|
|
|||
|
By _St_. 3 _George II_., ch. 25, sec. 19, 20, no one is to be a juror in
|
|||
|
London, who shall not be “an householder within the said city, and have
|
|||
|
lands, tenements, or personal estate, to the value of _one hundred
|
|||
|
pounds_.”
|
|||
|
|
|||
|
By another statute, applicable only to the county of _Middlesex_, it is
|
|||
|
enacted,
|
|||
|
|
|||
|
> “That all leaseholders, upon leases where the improved rents or value
|
|||
|
> shall amount to _fifty pounds or upwards per annum_, over and above
|
|||
|
> all ground rents or other reservations payable by virtue of the said
|
|||
|
> leases, shall be liable and obliged to serve upon juries when they
|
|||
|
> shall be legally summoned for that purpose.”—_4 George II._, ch. 7,
|
|||
|
> sec. 3. (1731.)]
|
|||
|
|
|||
|
[Footnote 83: Suppose these statutes, instead of disfranchising all
|
|||
|
whose freeholds were of less than the standard value fixed by the
|
|||
|
statutes, had disfranchised all whose freeholds were of greater value
|
|||
|
than the same standard—would anybody ever have doubted that such
|
|||
|
legislation was inconsistent with the English constitution; or that it
|
|||
|
amounted to an entire abolition of the trial by jury? Certainly not. Yet
|
|||
|
it was as clearly inconsistent with the common law, or the English
|
|||
|
constitution, to disfranchise those whose freeholds fell below any
|
|||
|
arbitrary standard fixed by the government, as it would have been to
|
|||
|
disfranchise all whose freeholds rose above that standard.]
|
|||
|
|
|||
|
[Footnote 84: _Lingard_ says: “These compurgators or jurors * * were
|
|||
|
sometimes * * _drawn by lot_.”—_1 Lingard’s History of England_, p.
|
|||
|
300.]
|
|||
|
|
|||
|
[Footnote 85: Chapter 4, p. 120, note.]
|
|||
|
|
|||
|
[Footnote 86: A mark was thirteen shillings and four pence.]
|