CHAPTER VI. 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, [1] 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. [2]

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eligible as jurors, the jury no longer represent "the country,"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 [3] 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 sheriff's 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 sheriff's 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 free-born 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 I285, 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. [4]

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

impaneled 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 goodand 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 reenacted, 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. [6]

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

right" 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. Rut 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. [7] 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 sheriff's, 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. [8] 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 sheriff's 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 sheriff's 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

sheriff's 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 role 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 hand 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] [9] 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."

[1]On the English Constitution.

[2] 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."

[3] 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.

[4] In 1485 it was enacted, by a statute entitled " Of what credit

and estate those jurors must be which shall be impaneled 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 impaneled, 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; [5] and that no person or persons

hereafter be impaneled, 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 copyhold 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, not withstanding the statute of 1 Richard III., ch. 4. To

endure to the next parliament." 11 Henry VII., ch. 24. (1494.)

This statute was continued in force by 19 Henry VII., ch. 16

(1503.)

In 1531 it was enacted, "That every person or person 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 moveable

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 judices 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 linquae) 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, 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 then 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

some, 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. 5. (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. 10, 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.)

[5] A mark was thirteen shillings and four pence.

[6] 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.

[7] Lingard says: "These compurgators or jurors * * were

sometimes * * drawn by lot." 1 Lingard's History of England,

p. 300.

[8] Chapter 4, p. 120, note.

[9] Editor's Note: (The following was not in Spooner's addition)

With the ratification of Article XIX of amendment to the

Constitution for the United States, August 20, 1920, women were

fully enfranchised with all rights of voting and jury service in all states

of the Union.

An Essay on the Trial By Jury · 第 3 / 9 章