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