An Essay On The Trial By Jury by Lysander Spooner (free novel reading sites TXT) 📖

Note Pg 94

John Was,  For The Most Part,  Compiled from The Ancient Customs Of

The Realm,  Or The Laws Of Edward The Confessor; By Which They

Usually Mean The Old Common Law Which Was Established under

Our Saxon Princes."   Blackstone'S Introduction To The Charters.

See Blackstone'S Law Tracts,  289.

 

Crabbe Says:

 

"It Is Admitted,  On All Hands,  That It (Magna Carta) Contains Nothing

But What Was Confirmatory Of The Common Law,  And The

Ancient Usages Of The Realm,  And Is,  Properly Speaking,  Only An

Enlargement Of The Charter Of Henry I.,  And His Successors."  

Crabbe'S History Of The English Law,  P. 127.

 

That The Coronation Oath Of The Kings Subsequent To Magna Carta

Was,  In substance,  If Not In form,  "To Maintain This Law Of The

Land,  Or Common Law," Is Shown By A Statute Of Edward Third, 

Commencing as Follows:

 

"Edward,  By The Grace Of God,  Ect.,  Ect.,  To The Sheriff Of

Stafford,  Greeting: Because That By Divers Complaints Made

To Us,  We Have Perceived that The Law Of The Land,  Which We

By Oath Are Bound To Maintain," Ect.   St. 20 Edward Iii. (1346.)

 

The Following extract From Lord Somers' Tract On Grand Juries

Shows That The Coronation Oath Continued the Same As Late As

1616,  (Four Hundred years After Magna Carta.) He Says:

 

"King james,  In his Speech To The Judges,  In the Star Chamber, 

Anno 1616,  Told Them,  'That He Had,  After Many Years,  Resolved

To Renew His Oath,  Made At His Coronation,  Concerning justice, 

And The Promise Therein Contained for Maintaining the Law Of

The Land.' And,  In the Next Page Save One,  Says,  'I Was Sworn To

Maintain The Law Of The Land,  And Therefore Had Been Perjured

If I Had Broken It. God Is My Judge,  I Never Intended it.'

"Somers On Grand Juries,  P. 82.

 

In 1688,  The Coronation Oath Was Changed by Act Of Parliament, 

And The King was Made To Swear:

 

"To Govern The People Of This Kingdom Of England,  And The

Dominions Thereto Belonging,  According to The Statutes In

Parliament Agreed on,  And The Laws And Customs Of The

Same."   St. 1 William And Mary,  Ch. 6. (1688.)

 

The Effect And Legality Of This Oath Will Hereafter Be

Considered. For The Present It Is Sufficient To Show,  As Has

Been Already Sufficiently Done,  That From The Saxon Times

Until At Least As Lately As 1616,  The Coronation Oath Has

Been,  In substance,  To Maintain The Law Of The Land,  Or

The Common Law,  Meaning thereby The Ancient Saxon

Customs,  As Embodied in the Laws Of Alfred,  Of Edward

The Confessor,  And Finally In magna Carta.

 

Note Pg 95

It May Here Be Repeated that This Oath Plainly Proves That

The Statutes Of The King were Of No Authority Over Juries,  If

Inconsistent With Their Ideas Of Right; Because It Was One

Part Of The Common Law That Juries Should Try All Causes

According to Their Own Consciences,  Any Legislation Of The

King to The Contrary Notwithstanding.[33]

 

[1] Hale Says:"The Trial By Jury Of Twelve Men Was The Usual

Trial Among The Normans,  In most Suits; Especially In assizes,  Et

Juris Utrum."   1 Hale'S History Of The Common Law,  219

 

This Was In normandy,  Before The Conquest Of England By The

Normans. See Ditto,  P. 218.

 

Crabbe Says:"It Cannot Be Denied that The Practice Of Submitting

Causes To The Decision Of Twelve Men Was Universal Among All The

Northern Tribes (Of Europe) From The Very Remotest Antiquity." 

Crabbe'S History Of The English Law,  P. 32.

 

[2] "The People,  Who In every General Council Or Assembly Could

Oppose And Dethrone Their Sovereigns,  Were In little Dread Of

Their Encroachments On Their Liberties; And Kings,  Who Found

Sufficient Employment In keeping possession Of Their Crowns,

Would Not Likely Attack The More Important Privileges Of Their

Subjects."

 

[3] This Office Was Afterwards Committed to Sheriffs. But Even

While The Court Was Held By The Lord,  "The Lord Was Not Judge,

But The Pares (Peers) Only."   Gilbert On The Court Of Exchequer,

61-2.

 

[4] The Opinion Expressed in the Text,  That The Witan Had No

Legislative Authority,  Is Corroborated by The Following

Authorities:

 

"From The Fact That The New Laws Passed by The King and The Witan

Were Laid Before The Shire-Mote,  (County Court,) We Should Be

Almost Justified in the Inference That A Second Sanction Was

Necessary Before They Could Have The Effect Of Law In that

Particular County."   Durham'S Middle Ages,  Sec. 2,  B. 2,  Ch. L.

57 Lardner'S Cab. Cyc.,  53.

 

The "Second Sanction" Required to Give The Legislation Of The

King and Witan The Effect Of Law,  Was Undoubtedly,  I Think,  As A

General Thing,  The Sanction Of A Jury. I Know Of No Evidence

Whatever That Laws Were Ever Submitted to Popular Vote In the

County Courts,  As This Author Seems To Suppose Possible. Another

Mode,  Sometimes Resorted to For Obtaining the Sanction Of The

People To The Laws Of The Witan,  Was,  It Seems,  To Persuade The

People Themselves To Swear To Observe Them. Mackintoshsays:

 

"The Preambles Of The Laws (Of The Witan) Speak Of The Infinite

Number Of Liegemen Who Attended,  As Only Applauding the

Measures Of The Assembly. But This Applause Was Neither So 

Note Pg 96

Unimportant To The Success Of The Measures,  Nor So Precisely

Distinguished from A Share In legislation,  As Those Who Read History

With A Modern Eye Might Imagine. It Appears That Under Athelstan

Expedients Were Resorted to,  To Obtain A Consent To The Law From

Great Bodies Of The People In their Districts,  Which Their Numbers

Rendered impossible In a National Assembly. That Monarch Appears

To Have Sent Commissioners To Hold Shire-Gemotes Or County

Meetings,  Where They Proclaimed the Laws Made By The King and

His Counsellors,  Which,  Being acknowledged and Sworn To At These

Folk-Motes (Meetings Of The People) Became,  By Their Assent,

Completely Binding on The Whole Nation."   Mackintosh'S Hist. Of

England,  Ch. 2. 45 Lardner'S Cab. Cc.,  75.

 

[5] Page 31.

 

[6] Hallam Says,  "It Was,  However,  To The County Court That An

English Freeman Chiefly Looked for The Maintenance Of His Civil

Rights."   2 Middle Ages,  392.

 

Also,  "This (The County Court) Was The Great Constitutional

Judicature In all Ques- Tions Of Civil Right."   Ditto,  395.

Also,  "The Liberties Of These Anglo-Saxon Thanes Were Chiefly

Secured,  Next To Their Swords And Their Free Spirits,  By The

Inestimable Right Of Deciding civil And Criminal Suits In their

Own County Courts."   Ditto,  899.

 

[7] "Alfred may,  In one Sense,  Be Called the Founder Of These

Laws,  (The Saxon,) For Until His Time They Were An Unwrittencode,

But He Expressly Says,  'That I,  Alfred,  Collected the Good Laws Of

Our Forefathers Into One Code,  And Also I Wrote Them Down'

-- Which Is A Decisive Fact In the History Of Our Laws Well

Worth Noting."   Introduction To Gilbert'S History Of The Common

Pleas,  P. 2,  Note.

 

Kelham Says,  "Let Us Consult Our Own Lawyers And Historians,  And

They Will Tell As That Alfred,  Edgar,  And Edward The Confessor,

Were The Great Compilers And Restorers Of The English Laws." 

Kelham'S Preliminary Discourse To The Laws Of William The

Conqueror,  P. 12. Appendix To Kelham'S Dictionary Of The Norman

Language.

 

"He (Alfred) Also,  Like Another Theodosius,  Collected the Various

Customs That He Found Dispersed in the Kingdom,  And Reduced and

Digested them Into One Uniform System,  Or Code Of Laws,  In his

Som-Bec,  Or Liber Judicialis (Judicial Book). This He Compiled

For The Use Of The Court Baron,  Hundred and County Court,  The

Court-Leet And Sheriff'S Toarn,  Tribunals Which He Established

For The Trial Of All Causes,  Civil And Criminal,  In the Very

Districts Wherein The Complaints Arose."   4 Blackstone,  411.

 

Alfred himself Says,  "Hence I,  King alfred,  Gathered these

Together,  And Commanded many Of Those To Be Written Down Which

Our Forefathers Observed   Those Which I Liked   And Those Which

I Did Not Like,  By The Advice Of My Witan,  I Threw Aside. For I

Note Pg 97

Durst Not Venture To Set Down In writing over Many Of My Own,

Since I Knew Not What Among Them Would Please Those That Should

Come After Us. But Those Which I Met With Either Of The Days Of

Me,  My Kinsman,  Or Of Offa,  King of Mercia,  Or Of Aethelbert,  Who

Was The First Of The English Who Received baptism   Thse Which

Appeared to Me The Justest   I Have Here Collected,  And Abandoned

The Others. Then I,  Alfred,  King of The West Saxons,  Showed these

To All My Witan,  And They Then Said That They Were All Willing to

Observe Them."   Laws Of Alfred,  Translated by R. Price,  Prefixed

To Mackintosh'S History Of England,  Vol. L. 45 Lardner'S Cab. Cyc.

 

"King edward * * Projected and Begun What His Grandson,  King

Edward The Confessor,  Afterwards Completed,  Viz.,  One Uniform

Digest Or Body Of Laws To Be Observed throughout The Whole

Kingdom,  Being probably No More Than A Revival Of King alfred'S

Code,  With Some Improvements Suggested by Necessity And

Experience,  Particularly The Incorporating some Of The British,

Or,  Rather,  Mercian Customs,  And Also Such Of The Danish

(Customs) As Were Reasonable And Approved,  Into The West Saxon

Lage,  Which Was Still The Ground-Work Of The Whole. And This

Appears To Be The Best Supported and Most Plausible Conjecture,

(For Certainty Is Not To Be Expected,) Of The Rise And Original

Of That Admirable System Of Maxims And Unwritten Customs Which

Is Now Known By The Name Of The Common Law,  As Extending its

Authority Universally Over All The Realm,  And Which Is Doubtless

Of Saxon Parentage."   4 Blackstone,  412.

 

"By The Lex Terrae And Lex Regni Is Understood The Laws Of

Edward The Confessor,  Confirmed and Enlarged as They Were By William

The Conqueror; And This Constitution Or Code Of Laws Is What Even To

This Day Are Called 'The Common Law Of The Land.'"   Introduction

To Gilbert'S History Of The Common Pleas,  P. 22,  Note.

 

 

 

 

 

[8] Not The Conqueror Of The English People,  (As The Friends Of

Liberty Maintain,) But Only Of Harold The Usurper.   See Hale'S

History Of The Common,  Law,  Ch. 5.

 

[9] For All These Codes See Wilkins' Laws Of The Anglo-Saxons.

 

"Being regulations Adapted to Existing institutions,  The

Anglo-Saxon Statutes Are Concise And Technical,  Alluding to The

Law Which Was Then Living and In vigor,  Rather Than Defining it.

The Same Clauses And Chapters Are Often Repeated word,  For Word,

In The Statutes Of Subsequent Kings,  Showing that Enactments

Which Bear The Appearance Of Novelty Are Merely Declaratory.

Consequently The Appearance Of A Law,