Spencer Heath Archive

Item 621

Random taping by Spencer MacCallum from conversation

November 10, 1955

/Origin of the Jury

from Earliest Times/

 

For the regulation of men, there are two kinds of law, political, or statutory law, and folk law — laws made by the people as evidenced by their voluntary customs in relation to one another. Political law originates in the king or in some other persons who are vested with coercive power of rulership over other persons generally.

Common law, or folk law, originates in the people and has its being in the customs which these people have adopted for the successful conduct of their affairs in relation one to another. In early days, a magistrate, in hearing any kind of civil or criminal case, would find the case initiated by a complaining party who, under some kind of oath, complained against somebody else, and the party complained against would, under oath, make his own statement of his side of the case. The procedure then consisted in calling in the neighbors. The complaining party would call in as many neighbors as he could to support his oath, and the party complained against would call in as many neighbors as he could to support his oath with their oath in support of his. The magistrate decided the case on the basis of the weight of the evidence of what, in effect, was confidence or belief in the respective parties.

Now when a case arose before a magistrate involving some business or other affair between the parties, the magis­trate did not undertake to lay down the law but to find out the law. He found out the law by calling in neighbors who were familiar with the kind of business involved, who would give their testimony as to what were the customs of these persons in carrying on their affairs. And what was given by them as the custom was the folk law, or the common law. These men, witnesses, were called jury men, similar to those earlier predecessors of theirs who came to testify only as to the worth and reliability of one of the parties to the suit, because they were called in as a jury to adjure — to swear to. They were expedients; they were called in specially for each special occasion. They were not a duly and regularly, continually constituted, body. That is why they were called juries, the same as when a temporary structure put up on a ship is called a jury mast or something like that — just for that special occasion.

This was the Common Law of England. I haven’t elabor­ated it, I have only referred to customs in general. I might go into it and speak of many customs, like the customs of pasturage and the commons, and things people could have in common and what they couldn’t have in common, the things they had been doing from time immemorial — and had done them from time immemorial because they succeeded that way, because they didn’t come into conflict with one another by doing things in this immemorial fashion. So the whole body of the Common Law, based upon the folk law, which was the custom of people in adjusting their affairs spontaneously, that is the founda­tion and the main body of the English Law.

Now under English Law there were few if any statutes before the Norman Conquest. Such statutes as they had were either resolutions of the Witangemote, that is, the “wisemen,” the landlords’ body, or House of Lords, we might call it — Saxon House of Lords — who laid down rules for their own conduct, some of which rules were to the effect that they should not oppress their tenants by taking any more rent from them forcibly than they were willing to pay voluntarily. But during the Heptarchy, the Seven Kingdoms, the kings, under foreign influences, began in a small way to lay tribute, or taxation, notably under the Danes, under _________ /Aethelred “The Unready”? – Wikipedia/. The Dane geld, as it was called — tribute or taxation — was the first country-wide system of forcible revenue that England knew, and the only one that England ever knew until after the Norman Conquest.

With the coming of the Normans, the whole picture was changed. William the Bastard (using his official title) imported the Roman type of law handed down from above – not up from the people but down from a higher, powerful authority above. Materially powerful, not powerful by custom but powerful by force. Now the magistrates became magistrates beholden to the King and serving his purposes. And now the peace kept was the King’s Peace, so the King’s security wouldn’t be jeopardized by riot and public disturbance. The laws in general became the King’s laws. He laid them down, either personally or by the aid of his chancellors and later by the aid of the Lords and the Parliament as they developed. So the whole system of law after the Norman Con­quest was on a different basis, on an imperialistic basis and not on a social basis. Administration of public affairs fell into the hands of political persons, the King and those deriving under the King, and they gave the whole public busi­ness a political, that is to say, a coercive, administration whereas all previous administration before the Norman Conquest — substantially all — had been of the proprietary variety by making contracts with one another and not by imposing compul­sions upon one another.

So under the new regime, the “New Deal” we may properly call it, the public authority directed the operation of the courts and the enforcements of their decisions. The jury men now became subordinate — not to tell the magistrate what the law was, but to tell the magistrate something about the facts of the case so that he could apply the King’s ‘law,’ the statute and not the law. So the whole system was reversed. The jurymen no longer told the judge what was the law; the judge told the jury what was the law. All the jury could tell the judge was such facts as they knew affecting the case.

Now in this state of affairs a great deal of injustice and discontent arose and a great many vices and corruptions naturally grew up, so that people became more or less out­raged from time to time at the condition of things — either the performance, the activities, of the political officers or their neglect of keeping the King’s Peace or any other kind of security in the communities. So the people then brought forward what they called a Grand Jury, usually of 24 instead of 12 men, and this grand jury was also called an Inquest, meaning to inquire into things — what’s going on here, what goes on now — and to report that to the responsible officers for keeping the peace with their recommendations as to what should be done about it. So the grand jury is the jury that inquires into facts of misdoings only, secretly as a popular device for reminding the public officers of their public duties and suggesting their performance of them.

So we have gone a long way from the time when the juryman came in to support the character of a party in court, or when the juryman came in to tell the magistrate what were the customs by which the people were in the habit of getting along well together, to the time when now the jury is called in only to find out something about the facts, not for anything that they know — they mustn’t know anything — but to listen to the evidence as very rigidly presented in court, and then, on the basis of what they hear in the courtroom and no other basis, must they say whether the person is guilty or innocent or whether a person is obligated to another in a certain amount of damages or in contract. And then the judge looks to the King’s Law, much to say, what does the King’s Law say shall be done about this? He doesn’t ask the jury what the law is. He goes to the Legislature. And the Legislature for the most part of our history has been subordinate to the King and is very much inclined to be moving in that direction at the present day. The chief magistrate /execu­tive?/ is coming more and more to dominate the legislative and judicial branches of the government, not only in Germany under Hitler and in other countries in like manner, but in our own beloved America as well.