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eligible as jurors, the jury no longer represent "the country,"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.