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.
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