[87967] in Discussion of MIT-community interests
Diabetes Gone in 7 Days?
daemon@ATHENA.MIT.EDU (Dr Dave)
Fri Sep 2 11:39:25 2016
Date: Fri, 2 Sep 2016 13:31:55 -0400
From: "Dr Dave" <dr-dave@tiffanys.stream>
To: <mit-talk-mtg@charon.mit.edu>
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<title>Diabetes Gone in 7 Days?</title> =20
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<p>Diabetes Gone in 7 Days?<br /> It may probably be safely asserted tha=
t there are, at this day, no legal juries, either in England or America. An=
d if there are no legal juries, there is, of course, no legal trial, nor &q=
uot;judgment," by jury. In saying that there are probably no legal jur=
ies, 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 t=
rial 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 guara=
ntied. Any legislation, therefore, that infringes any essential principle o=
f 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,=
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 thoug=
h it abolished the trial by jury altogether. In reality it does abolish it.=
What, then, are the essential principles of the common law, controlling th=
e 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 whi=
ch requires the selection of jurors to be made from a less number of freeme=
n 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 coun=
try." 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 " t=
he country," or the whole people, and be thrown into the hands of a fe=
w. 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 fol=
lowing 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 Magn=
a Carta, to disprove that all freemen were eligible as jurors, unless it be=
the law of Ethelred, which requires that they be elderly men. Since no=
specific age is given, it is probable, I think, that this statute meant no=
thing more than that they be more than twenty-one years old. If it meant an=
ything more, it was probably contrary to the common law, and therefore void=
2. Since Magna Carta, we have evidence showing quite conclusively that al=
l 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 se=
ction " Of Judges" that is, jurors says: "All those who are =
not forbidden by law may be judges (jurors). To women it is forbidden by la=
w 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 f=
alse judgments cannot be judges, nor infants, nor any under the age of twen=
ty-one years, nor infected persons, nor idiots, nor madmen, nor deaf, nor d=
umb, nor parties in the pleas, nor men excommunicated by the bishop, nor cr=
iminal 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 Jus=
tices, 59 60. In the section " Of Inferior Courts," it is said: &=
quot;From the first assemblies came consistories, which we now call courts,=
and that in divers places, and in divers manners: whereof the sheriffs hel=
d one monthly, or every five weeks according to the greatness or largeness =
of the shires. And these courts are called county courts, where the judgmen=
t 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 fe=
e, to the likeness of the hundred courts. There are other inferior courts w=
hich the bailiffs hold in every hundred, from three weeks to three weeks, b=
y 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 t=
heir 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 Justic=
es, 50 51. In the section "Of the Sheriff's Turns," it is said: &=
quot;The sheriff's by ancient ordinances hold several meetings twice in the=
year in every hundred; where all the freeholders within the hundred are bo=
und to appear for the service of their fees." Mirror of Justices, 50. =
The following statute was passed by Edward I., seventy years after Magna Ca=
rta: "Forasmuch also as sheriffs, hundreders, and bailiffs of libertie=
s, have used to grieve those which be placed under them, putting in assizes=
and juries men diseased and decrepit, and having continual or sudden disea=
se; 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 fro=
m 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.&=
quot; St. 13 Edward I., ch. 38. (1285.) Although this command to the sherif=
f's and other officers, not to summon, as jurors, those who, from age and d=
isease, were physically incapable of performing the duties, may not, of its=
elf, afford any absolute or legal implication, by which we can determine pr=
ecisely who were, and who were not, eligible as jurors at common law, yet t=
he exceptions here made nevertheless carry a seeming confession with them t=
hat, at common law, all male adults were eligible as jurors. But the main p=
rinciple of the feudal system itself, shows that all the full and free adul=
t male members of the state that is, all who were free born, and had not lo=
st 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 pe=
rsonally. The lands of the country were considered the property of the stat=
e, and were made to support the state in this way: A portion of them was se=
t apart to the king, the rents of which went to pay his personal and offici=
al expenditures, not including the maintenance of armies, or the administra=
tion 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 lan=
d of right, (until all the land was taken up,) on condition of their render=
ing certain military and civil services, to the state. The military service=
s consisted in serving personally as soldiers, or contributing an equivalen=
t in horses, provisions, or other military supplies. The civil services con=
sisted, among other things, in serving as jurors (and, it would appear, as =
witnesses) in the courts of justice. For these services they received no co=
mpensation other than the use of their lands. In this way the state was sus=
tained; and the king had no power to levy additional burdens or taxes upon =
the people. The persons holding lands on these terms were called freeholder=
s in later times freemen meaning free and full members of the state. Now, a=
s 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 we=
re 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 free=
holders were eligible as jurors. If all had not been eligible, we unquestio=
nably 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 whi=
ch I find made, by the English statutes, upon this common law principle, wa=
s made in I285, seventy years after Magna Carta. It was then enacted as fol=
lows: "Nor shall, any be put in assizes or juries, though they ought t=
o 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 valu=
e 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 th=
e 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 admi=
tted to pass in any inquest upon trial of the death of a man, nor in any in=
quest betwixt party and party in plea real, nor in plea personal, whereof t=
he debt or the damage declared amount to forty marks, if the same person ha=
ve 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. From these statutes it will be seen that, since 1285, seventy ye=
ars 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 gov=
ernment 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 th=
e trial by jury itself, which is that the legislation of the government sha=
ll 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 it=
s 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 fr=
om 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 th=
e other counties; different in Wales from what they were in England; and di=
fferent in the city of London, and in the county of Middlesex, from what th=
ey were in any other part of the kingdom. But this is not all. The governme=
nt 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 impanele=
d in criminal cases, as the following statutes show. "Be it also ordai=
ned and enacted by the same authority, that all panels hereafter to be retu=
rned, 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 sessi=
ons to inquire for the king, shall hereafter be reformed by additions and t=
aking out of names of persons by discretion of the same justices before who=
m such panel shall be returned; and the same justices shall hereafter comma=
nd the sheriff, or his ministers in his absence, to put other persons in th=
e 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 wa=
s reenacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.) These ac=
ts 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 mor=
e clear violations of the common law, the fundamental and paramount "l=
aw of the land," than were those statutes which affixed the property q=
ualifications before named; because, if the king, or the government, can se=
lect 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 rep=
resented "the country," but only a part of the country; that part=
, too, on whose favor the government chose to rely for the maintenance of i=
ts power, and which it therefore saw fit to select as being the most reliab=
le instruments for its purposes of oppression towards the rest. And the sel=
ection was made on the same principle, on which tyrannical governments gene=
rally select their supporters, viz., that of conciliating those who would b=
e most dangerous as enemies, and most powerful as friends that is, the weal=
thy. These restrictions, or indeed any one of them, of the right of eli=
gibility 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 sele=
ct 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 powe=
rs, 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 ow=
n liberties against the government. It was, therefore, in reality, a declar=
ation 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 aut=
hority and obligation of every statute of the king, which might come before=
him. But the principle of these statutes (fixing the qualifications of jur=
ors) 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 princi=
ples of the English constitution could not be devised. </p>=20
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