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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Substantially Identical With The Common Law, As Far As It Went,
When He Commanded His Justices To Allow "The Great Charter As The
Common Law," " In Pleas Before Them, And In Judgment," As Has
Been Already Cited In This Chapter. 25 Edward I., Ch. 1,
(1297.)
In Conclusion Of This Chapter, It May Be Safely Asserted That The
Veneration, Attachment, And Pride, Which The English Nation, For
More Than Six Centuries, Have Felt Towards Magna Carta, Are In
Their Nature Among The Most Irrefragable Of All Proofs That It
Was The Fundamental Law Of The Land, And Constitutionally Binding
Upon The Government; For, Otherwise, It Would Have Been, In Their
Eyes, An Unimportant And Worthless Thing. What Those Sentiments
Were I Will Use The Words Of Others To Describe, The Words,
Too, Of Men, Who, Like All Modern Authors Who Have Written On The
Same Topic, Had Utterly Inadequate Ideas Of The True Character Of
The Instrument On Which They Lavished Their Eulogiums.
Hume, Speaking Of The Great Charter And The Charter Of The
Forest, As They Were Confirmed By Henry Iii., In 1217, Says:"Thus
These Famous Charters Were Brought Nearly To The Shape In Which
They Have Ever Since Stood; And They Were, During Many
Generations, The Peculiar Favorites Of The English Nation, And
Esteemed The Most Sacred Rampart To National Liberty And
Independence. As They Secured The Rights Of All Orders Of Men,
They Were Anxiously Defended By All, And Became The Basis, In A
Manner, Of The English Monarchy, And A Kind Of Original Contract,
Which Both Limited The Authority Of The King And Ensured The
Conditional Allegiance Of His Subjects. Though Often Violated,
They Were Still Claimed By The Nobility And People; And, As No
Precedents Were Supposed Valid That Infringed Them, They Rather
Acquired Than Lost Authority, From The Frequent Attempts Made
Against Them In Several Ages, By Regal And Arbitrary Power."
Hume, Ch. 12.
Mackintosh Says, "It Was Understood By The Simplest Of The
Unlettered Age For Whom It Was Intended. It Was Remembered By
Them... For Almost Five Centuries It Was Appealed To As The
Decisive Authority On Behalf Of The People... To Have Produced
It, To Have Preserved It, To Have Matured It, Constitute The
Immortal Claim Of England On The Esteem Of Mankind. Her Bacons
Arid Shakspeares, Her Miltons And Newtons, With All The Truth
Which They Have Revealed, And All The Generous Virtues Which They
Have Inspired, Are Of Inferior Value When Compared With The
Subjection Of Men And Their Rulers To The Principles Of Justice;
If, Indeed, It Be Not More True That These Mighty Spirits Could
Not Have Been Formed Except Under Equal Laws, Nor Roused To Full
Activity Without The Influence Of That Spirit Which The Great
Charter Breathed Over Their Forefathers." Mackintosh's Hist. Of
Eng., Ch. 3, [8]
Of The Great Charter, The Trial By Jury Is The Vital Part, And
The Only Part That Places The Liberties Of The People In Their
Own Keeping. Of This Blackstone Says:
"The Trial By Jury, Or The Country, Per Patriam, Is Also That
Trial By The Peers Of Every Englishman, Which, As The Grand
Bulwark Of His Liberties, Is Secured To Him By The Great Charter;
Nullus Liber Homo Capiatur, Vel Imprisonetur, Aut Exuletur, Aut
Aliquo Modo Destruatur, Nisi Per Legale Judicial Parium Suorum,
Vel Per Legem Terrae.
The Liberties Of England Cannot But Subsist So Long As This
Palladium Remains Sacred And Inviolate, Not Only From All Open,
Attacks, Which None Will Be So Hardy As To Make, But Also From
All Secret Machinations Which May Sap And Undermine It." [9]
"The Trial By Jury Ever Has Been, And I Trust Ever Will Be,
Looked Upon As The Glory Of The English Law... It Is The Most
Transcendent Privilege Which Any Subject Can Enjoy Or Wish For,
That He Cannot Be Affected In His Property, His Liberty, Or His
Person, But By The Unanimous Consent Of Twelve Of His Neighbors
And Equals."[10]
Chapter 11 (Authority Of Magna Carta) Pg 171
Hume Calls The Trial By Jury "An Institution Admirable In Itself,
And The Best Calculated For The Preservation Of Liberty And The
Administration Of Justice, That Ever Was Devised By The Wit Of
Man." [11]
An Old Book, Called "English Liberties," Says:"English
Parliaments Have All Along Been Most Zealous For Preserving This
Great Jewel Of Liberty, Trials By Juries Having No Less Than
Fifty-Eight Several Times, Since The Norman Conquest, Been
Established And Confirmed By The Legislative Power, No One
Privilege Besides Having Been Ever So Often Remembered In
Parliament."{12]
[1] Mackintosh's Hist. Of Eng., Ch. 3. 45 Lardner's Cab. Cyc.,
354.
[2] "Forty Shilling Freeholders" Were Those "People Dwelling And
Resident In The Same Counties, Whereof Every One Of Them Shall
Have Free Land Or Tenement To The Value Of Forty Shillings By The
Year At The Least Above All Charges." By Statute 8 Henry 6, Ch.
7, (1429,) These Freeholders Only Were Allowed To Vote For
Members Of Parliament From The Counties.
[3] He Probably Speaks In Its Favor Only To Blind The Eyes Of The
People To The Frauds He Has Attempted Upon Its True Meaning.
[4] It Will Be Noticed That Coke Calls These Confirmations Of The
Charter "Acts Of Parliament," Instead Of Acts Of The King Alone.
This Needs Explanation.
It Was One Of Coke's Ridiculous Pretences, That Laws Anciently
Enacted By The King, At The Request, Or With The Consent, Or By
The Advice, Of His Parliament, Was "An Act Of Parliament,"
Instead Of The Act Of The King. And In The Extracts Cited, He
Carries This Idea So Far As To Pretend That The Various
Confirmations Of The Great Charter Were "Acts Of Parliament,"
Instead Of The Acts Of The Kings. He Might As Well Have Pretended
That The Original Grant Of The Charter Was An "Act Of Parliament;
"Because It Was Not Only Granted At The Request, And With The
Consent, And By The Advice, But On The Compulsion Even, Of Those
Who Commonly Constituted His Parliaments. Yet This Did Not Make
The Grant Of The Charter "An Act Of Parliament." It Was Simply An
Act Of The King.
The Object Of Coke, In This Pretence, Was To Furnish Some Color
For The Palpable False- Hood That The Legislative Authority,
Which Parliament Was Trying To Assume In His Own Day, And Which
It Finally Succeeded In Obtaining, Had A Precedent In The Ancient
Constitution Of The Kingdom.
There Would Be As Much Reason In Saying That, Because The Ancient
Kings Were In The Habit Of Passing Laws In Special Answer To The
Petitions Of Their Subjects, Therefore Those Petitioners Were A
Part Of The Legislative Power Of The Kingdom.
Chapter 11 (Authority Of Magna Carta) Pg 172
One Great Objection To This Argument Of Coke, For The Legislative
Authority Of The Ancient Parliaments, Is That A Very Large
Probably Much The Larger Number Of Legislative Acts Were Done
Without The Advice, Consent, Request, Or Even Presence, Of A
Parliament. Not Only Were Many Formal Statutes Passed Without
Any Mention Of The Consent Or Advice Of Parliament, But A Simple
Order Of The King In Council, Or A Simple Proclamation, Writ, Or
Letter Under Seal, Issued By His Command, Had The Same Force As
What Coke Calls "An Act Of Parliament." And This Practice
Continued, To A Considerable Extent At Least, Down To Coke's Own
Time.
The Kings Were Always In The Habit Of Consulting Their
Parliaments, More Or Less, In Regard To Matters Of Legislation,
Not Because Their Consent Was Constitutionally Necessary, But In
Order To Make Influence In Favor Of Their Laws, And Thus Induce
The People To Observe Them, And The Juries To Enforce Them.
The General Duties Of The Ancient Parliaments Were Not
Legislative, But Judicial, As Will Be Shown More Fully Hereafter.
The People Were Not Represented In The Parliaments At The Time Of
Magna Carta, But Only The Archbishops, Bishops, Earls, Barons,
And Knights; So That Little Or Nothing Would Have Been Gained For
Liberty By Coke's Idea That Parliament Had A Legislative Power.
He Would Only Have Substituted An Aristocracy For A King. Even
After The Commons Were Represented In Parliament, They For Some
Centuries Appeared Only As Petitioners, Except In The Matter Of
Taxation, When Their Consent Was Asked. And Almost The Only
Source Of Their Influence On Legislation Was This: That They
Would Sometimes Refuse Their Consent To The Taxation, Unless The
King Would Pass Such Laws As They Petitioned For; Or, As Would
Seem To Have Been Much More Frequently The Case, Unless He Would
Abolish Such Laws And Practices As They Remonstrated Against.
The Influence, Or Power Of Parliament, And Especially Of The
Commons, In The General Legislation Of The Country, Was A Thing
Of Slow Growth, Having Its Origin In A Device Of The King To Get
Money Contrary To Law, (As Will Be Seen In The Next Volume,) And
Not At All A Part Of The Constitution Of The Kingdom, Nor Having
Its Foundation In The Consent Of The People. The Power, As At
Present Exercised, Was Not Fully Established Until 1688, (Near
Five Hundred Years After Magna Carta,) When The House Of
Commons (Falsely So Called) Had Acquired Such Influence As The
Representative, Not Of The People, But Of The Wealth, Of The
Nation, That They Compelled, The King To Discard The Oath Fixed
By The Constitution Of The Kingdom; (Which Oath Has Been Already
Given In A Former Chapter, [5] And Was, In Substance, To Preserve
And Execute The Common Law, The Law Of The Land, Or, In The
Words Of The Oath, "The Just Laws And Customs Which The Common
People Had Chosen;") And To Swear That He Would "Govern The
People Of This Kingdom Of England, And The Dominions Thereto
Belonging, Accordingto The Statutes In Parliament Agreed On, And
The Laws And Customs Of The Same." [6]
The Passage And Enforcement Of This Statute, And The Assumption
Chapter 11 (Authority Of Magna Carta) Pg 173Of This Oath By The King, Were Plain Violations Of The English
Constitution, Inasmuch As They Abolished, So Far As Such An Oath
Could Abolish, The Legislative Power Of The King, And Also "Those
Just Laws And Customs Which The Common People (Through Their
Juries) Had Chosen," And Substituted The Will Of Parliament In
Their Stead.
Coke Was A Great Advocate For The Legislative Power Of
Parliament, As A Means Of Restraining The Power Of The King. As
He Denied All Power To Juries To Decide Upon The Obligation Of
Laws, And As He Held That The Legislative Power Was "So
Transcendent And Absolute As (That) It Cannot Be Confined, Either
For Causes Or Persons, Within Any Bounds," [7] He Was Perhaps
Honest
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