An Essay On The Trial By Jury by Lysander Spooner (best love novels of all time TXT) ๐
- Author: Lysander Spooner
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Ascribed To It, And That The Legislation Of The King Was To Be Of
No Authority With The Jury Beyond What They Chose To Allow To It,
And That The Juries Were To Limit The Punishments To Be Inflicted,
We Should Find That Evidence In Various Sources, Such As The Laws,
Customs, And Characters Of Their Ancestors On The Continent, And
Of The Northern Europeans Generally; In The Legislation And Customs
That Immediately Succeeded Magna Carta; In The Oaths That Have
At Different Times Been Administered To Jurors, &C;., &C;. This
Evidence Can Be Exhibited Here But Partially. To Give It All Would
Require Too Much Space And Labor
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 Pg 44
Weakness Of The Regal Authority.
Hughes, In His Preface To His Translation Of Horne's "Mirror Of
Justices," (A Book Written In The Time Of Edward I, 1272 To
1307,) Giving A Concise View Of The Laws Of England Generally,
Says:
"Although In The Saxon's Time I Find The Usual Words Of The Acts
Then To Have Been Edictum, (Edict,) Constitutio, (Statute,)
Little Mention Being Made Of The Commons, Yet I Further Find
That, Tum Demum Leges Vim Et Vigorem Habuerunt, Cum Fuerunt
Non Modo Institutae Sed Firmatae Approbatione Communitatis." (The
Laws Had Force And Vigor Only When They Were Not Only Enacted,
But Confirmed By The Approval Of The Community.)
The Mirror Of Justices Itself Also Says, (Ch. 1, Sec. 3,) In
Speaking "Of The First Constitutions Of The Ancient King."
"Many Ordinances Were Made By Many Kings, Until The Time Of The
King That Now Is (Edward I.); The Which Ordinances Were Abused,
Or Not Used By Many, Nor Very Current, Because They Were Not Put
In Writing, And Certainly Published." Mirror Of Justices, P. 6.
Hallam Says:
"The Franks, Lombards, And Saxons Seem Alike To Have Been
Jealous Of Judicial Authority; And Averse To Surrendering What Concerned
Every Man's Private Right, Out Of The Hands Of His Neighbors And
Equals." 1 Middle Ages, 271.
The "Judicial Authority," Here Spoken Of, Was The Authority Of
The Kings, (Who At That Time United The Office Of Both
Legislators And Judges,), And Not Of A Separate Department Of
Government, Called The Judiciary, Like What Has Existed In More
Modern Times. [1]
Hume Says:
"The Government Of The Germans, And That Of All The Northern
Nations, Who Established Themselves On The Ruins Of Rome, Was
Always Extremely Free; And Those Fierce People, Accustomed To
Independence And Inured To Arms, Were More Guided By
Persuasion, Than Authority, In The Submission Which They Paid To Their
Princes. The Military Despotism, Which Had Taken Place N The
Roman Empire, And Which, Previously To The Irruption Of Those
Conquerors, Had Sunk The Genius Of Men, And Destroyed Every Noble
Principle Of Science And Virtue, Was Unable To Resist The
Vigorous Efforts Of A Free People, And Europe, As From A New
Epoch, Rekindled Her Ancient Spirit, And Shook Off The Base
Servitude To Arbitrary Will And Authority Under Which She Had So
Long Labored. The Free Constitutions Then Established, However
Impaired By The Encroachments Of Succeeding Princes, Still
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 Pg 45Impaired By The Encroachments Of Succeeding Princes, Still
Preserve An Air Of Independence And Legal Administration, Which
Distinguished The European Nations; And If That Part Of The Globe
Maintain Sentiments Of Liberty, Honor, Equity, And Valor,
Superior To The Rest Of Mankind, It Owes These Advantages Chiefly
To The Seeds Implanted By Those Generous Barbarians.
"The Saxons, Who Subdued Britain, As They Enjoyed Great Liberty
In Their Own Country, Obstinately Retained That Invaluable
Possession In Their New Settlement; And They Imported Into This
Island The Same Principles Of Independence, Which They Had
Inherited From Their Ancestors. The Chieftains, ( For Such They
Were, More Than Kings Or Princes,) Who Commanded Them In Those
Military Expeditions, Still Possessed A Very Limited Authority;
And As The Saxons Exterminated, Rather Than Subdued The Ancient
Inhabitants, They Were, Indeed, Transplanted Into A New
Territory, But Preserved Unaltered All Their Civil And Military
Insfitutions. The Language Was Pure Saxon; Even The Names Of
Places, Which Often Remain While The Tongue Entirely Changes,
Were Almost All Affixed By The Conquerors; The Manners And
Customs Were Wholly German; And The Same Picture Of A Fierce And
Bold Liberty, Which Is Drawn By The Masterly Pen Of Tacitus, Will
Suit Those Founders Of The English Government. The King, So Far
From Being Invested With Arbitrary Power, Was Only Considered As
The First Among The Citizens; His Authority Depended More On His
Personal Qualities Than On His Station; He Was Even So Far On A
Level With The People, That A Stated Price Was Fixed For His
Head, And A Legal Fine Was Levied Upon His Murderer, Which Though
Proportionate To His Station, And Superior To That Paid For The
Life Of A Subject, Was A Sensible Mark Of His Subordination To
The Community." 1 Hume, Appendix, L.
Stuart Says:
"The Saxons Brought Along With Them Into Britain Their Own
Customs, Language, And Civil Institutions. Free In Germany, They
Renounced Not Their Independence, When They Had Conquered.
Proud From Victory, And With Their Swords In Their Hands, Would
They Surrender Their Liberties To A Private Man? Would Temporary
Laders, Limited In Their Powers, And Unprovided In Resources,
Ever Think To Usurp An Authority Over Warriors, Who Considered
Themselves As Their Equals, Were Impatient Of Control, And
Attached With Devoted Zeal To Their Privileges? Or, Would They
Find Leisure To Form Resolutions, Or Opportunities To Put Them In
Practice, Amidst The Tumult And Confusion Of Those Fierce And
Bloody Wars, Which Their Nations First Waged With The Britons,
And Then Engaged In Among Themselves? Sufficiently Flattered In
Leading The Armies Of Their Countrymen, The Ambition Of
Commanders Could As Little Suggest Such Designs, As The Liberty
Of The People Could Submit To Them. The Conquerors Of Britain
Retained Their Independence; And This Island Saw Itself Again In
That Free State In Which The Roman Arms Had Discovered It.
"The Same Firmness Of Character, And Generosity Of Manners,
Which, In General, Distinguished The Germans, Were Possessed In
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 Pg 46An Eminent Degree By The Saxons; And While We Endeavor To Unfold
Their Political Institutions, We Must Perpetually Turn Our
Observation To That Masterly Picture In Which The Roman Historian
Has Described These Nations. In The Woods Of Germany Shall We
Find The Principles Which Directed The State Of Land, In The
Different Kingdoms Of Europe; And There Shall We Find The
Foundation Of Those Ranks Of Men, And Of Those Civil
Arrangements, Which The Barbarians Everywhere Established; And
Which The English Alone Have Had The Good Fortune, Or The Spirit,
To Preserve." Stuart On The Constitution Of England, P. 59 - 61.
"Kings They (The Germans) Respected As The First Magistrates Of
The State; But The Authority Possessed By Them Was Narrow And
Limited." Ditto, P. 134.
"Did He, (The King,) At Any Time, Relax His Activity And Martial
Ardor, Did He Employ His Abilities To The Prejudice Of His
Nation, Or Fancy He Was Superior To The Laws; The Same Power
Which Raised Him To Honor, Humbled And Degraded Him. The
Customs And Councils Of His Country Pointed Out To Him His
Duty; And If He Infringed On The Former, Or Disobeyed The Latter,
A Fierce People Set Aside His Authority.
"His Long Hair Was The Only Ornament He Affected, And To Be
Foremost To Attack An Enemy Was His Chief Distinction.
Engaged In Every Hazardous Expedition, He Was A Stranger To
Repose; And, Rivalled By Half The Heroes Of His Tribe, He Could
Obtain Little Power. Anxious And Watchful For The Public
Interest, He Felt Every Moment His Dependence, And Gave
Proofs Of His Suhmission.
"He Attended The General Assembly Of His Nation, And Was Allowed
The Privilege To Harangue It First; But The Arts Of Persuasion,
Though Known And Respected By A Rude People, Were Unequally
Opposed To The Prejudices And Passions Of Men." Ditto, P. 135 - 6.
"The Authority Of A Saxon Mnarch Was Not More Considerable. The
Saxons Submitted Not To The Arbitrary Rule Of Princes. They
Administered An Oath To Their Sovereigns, Which Bound Them To
Aeknowledge The Laws, And To Defend The Rights Of The Church And
People; And If They Forgot This Obligation, They Forfeited Their
Office. In Both Countries, A Price Was Affixed On Kings, A Fine
Expiated Their Murder, As Well As That Of The Meanest Citizen;
And The Smallest Violation Of Ancient Usage,Or The Least Step
Towards Tyranny, Was Always Dangerous, And Often Fatal To Them."
Ditto, P. 189-40.
"They Were Not Allowed To Impose Taxes On The Kingdom." Ditto,
P. 146.
"Like The German Monarchs, They Deliberated In The General
Assembly Of The Nation; But Their Legislative Authority Was Not
Much Respected; And Their Assent Was Considered In No Better
Light Than As A Form. This, However, Was Their Chief Prerogative;
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 Pg 47And They Employed It To Acquire An Ascendant In The State. To Art
And Insinuation They Turned, As Their Only Resource, And
Flattered A People Whom They Could Not Awe; But Address, And The
Abilities To Persuade, Were A Weak Compensation For The Absence
Of Real Power.
"They Declared War, It Is Said, And Made Peace. In Both Cases,
However, They Acted As The Instruments Of The State, And Put In
Execution The Resolutions Which Its Councils Had Decreed. If,
Indeed, An Enemy Had Invaded The Kingdoms, And Its Glory And Its
Safety Were Concerned, The Great Lords Took The Field At The Call
Of Their Sovereign. But Had A Sovereign Declared War Against A
Neighboring State, Without Requiring Their Advice, Or If
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