Chapter 08 : 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 or "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 guaranteed. 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.
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.
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If a part only of the freemen, or members of the State, are eligible as jurors, the jury no longer represent "the country," but only a part of "the country."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 portion 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.
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 purpose of oppression towards the rest.
These restrictions, or indeed any one of them, of the right of eligibility as jurors, were, 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.
The principle, then, of the common law was that every freeman, or freeborn male Englishman, of adult age, etc., 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 feesimple. At the common law a man was born to the right to sit injuries. By the present statutes he buys that right when he buys his land. And thus this, the greatest of all 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 seems to have been at least three modes of selecting the jurors, at the common law. 1. By lot, 2. Two knights, or other freeholders, were appointed (probably by the sheriff). 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. 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 Charta, 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, if not 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 principle 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.
There has, probably, never been a legal jury or 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 by the courts of the United States-that is, if we had had legal juries, and the jurors had known their rightsit 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."
Printed by Hazell, Watson & Viney, Ld., London and, Aylesbury.
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