An Essay On The Trial By Jury by Lysander Spooner (free novel reading sites TXT) ๐
- Author: Lysander Spooner
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Remain, And Shall Be Read To The People Twice Every Year.
"The Highest And Most Binding laws Are The Statutes Which Are
Established by Parliament; And By Authority Of That Highest Court
It Is Enacted (Only To Show Their Tender Care Of Magna Carta And
Carta De Foresta) That If Any Statute Be Made Contrary To The
Great Charter, Or The Charter Of The Forest, That Shall Be Holden
For None; By Which Words All Former Statutes Made Against Either
Of Those Charters Are Now Repealed; And The Nobles And Great
Officers Were To Be Sworn To The Observation Of Magna Charta And
Charta De Foresta.
Chapter 11 (Authority Of Magna Carta) Pg 192
"Magna Fuit Quondam Magnae Reverentia Chartae." (Great Was
Formerly The Reverence For Magna Carta.) Coke'S Proem To 2
Inst., P. 1 To 7.
Coke Also Says, "All Pretence Of Prerogative Against Magna Charta
Is Taken Away." 2 Inst., 36.
He Also Says, "That After This Parliament (52 Henry Iii., In
1267) Neither Magna Carta Nor Carta De Foresta Was Ever
Attempted to Be Impugned or Questioned." 2 Inst., 102. [4]
To Give All The Evidence Of The Authority Of Magna Carta, It
Would Be Necessary To Give The Constitutional History Of England
Since The Year 1215. This History Would Show That Magna Carta,
Although Continually Violated and Evaded, Was Still Acknowledged
As Law By The Government, And Was Held Up By The People As The
Great Standard And Proof Of Their Rights And Liberties. It Would
Show Also That The Judicial Tribunals, Whenever It Suited their
Purposes To Do So, Were In the Habit Of Referring to Magna Carta
As Authority, In the Same Manner, And With The Same Real Or
Pretended veneration, With Which American Courts Now Refer To The
Constitution Of The United states, Or The Constitutions Of The
States. And, What Is Equally To The Point, It Would Show That
These Same Tribunals, The Mere Tools Of Kings And Parliaments,
Would Resort To The Same Artifices Of Assumption, Precedent,
Construction, And False Interpretation, To Evade The Requirements
Of Magna Carta, And To Emasculate It Of All Its Power For The
Preservation Of Liberty, That Are Resorted to By American Courts
To Accomplish The Same Work On Our American Constitutions.
I Take It For Granted, Therefore, That If The Authority Of Magna
Carta Had Rested simply Upon Its Character As A Compact Between
The King and The People, It Would Have Been Forever Binding upon
The King, (That Is, Upon The Government, For The King was The
Government,) In his Legislative, Judicial, And Executive
Character; And That There Was No Constitutional Possibility Of
His Escaping from Its Restraints, Unless The People Themselves
Should Freely Discharge Him From Them.
But The Authority Of Magna Carta Does Not Rest, Either Wholly Or
Mainly, Upon Its Character As A Compact. For Centuries Before The
Charter Was Granted, Its Main Principles Constituted "The Law Of
The Land," The Fundamental And Constitutional Law Of The Realm,
Which The Kings Were Sworn To Maintain. And The Principal Benefit
Of The Charter Was, That It Contained a Written Description And
Acknowledgment, By The King himself, Of What The Constitutional
Law Of The Kingdom Was, Which His Coronation Oath Bound Him To
Observe. Previous To Magna Carta, This Constitutional Law Rested
Mainly In precedents, Customs, And The Memories Of The People.
And If The King could But Make One Innovation Upon This Law,
Without Arousing resistance, And Being compelled to Retreat From
His Usurpation, He Would Cite That Innovation As A Precedent For
Another Act Of The Same Kind; Next, Assert A Custom; And,
Chapter 11 (Authority Of Magna Carta) Pg 193Finally, Raise A Controversy As To What The Law Of The Land
Really Was. The Great Object Of The Barons And People, In
Demanding from The King a Written Description And
Acknowledgment
Of The Law Of The Land, Was To Put An End To All Disputes Of This
Kind, And To Put It Out Of The Power Of The King to Plead Any
Misunderstanding of The Constitutional Law Of The Kingdom. And
The Charter, No Doubt, Accomplished very Much In this Way. After
Magna Carta, It Required much More Audacity, Cunning, Or
Strength, On The Part Of The King, Than It Had Before, To Invade
The People'S Liberties With Impunity. Still, Magna Carta, Like
All Other Written Constitutions, Proved inadequate To The Full
Accomplishment Of Its Purpose; For When Did A Parchment Ever
Have
Power Adequately To Restrain A Government, That Had Either
Cunning to Evade Its Requirements, Or Strength To Overcome Those
Who Attempted its Defence? The Work Of Usurpation, Therefore,
Though Seriously Checked, Still Went On, To A Great Extent, After
Magna Carta. Innovations Upon The Law Of The Land Are Still Made
By The Government. One Innovation Was Cited as A Precedent;
Precedents Made Customs; And Customs Became Laws, So Far As
Practice Was Concerned; Until The Government, Composed of The
King, The High Functionaries Of The Church, The Nobility, A House
Of Commons Representing the "Forty Shilling freeholders," And A
Dependent And Servile Judiciary, All Acting in conspiracy Against
The Mass Of The People, Became Practically Absolute, As It Is At
This Day.
As Proof That Magna Carta Embraced little Else Than What Was
Previously Recognized as The Common Law, Or Law Of The Land, I
Repeat Some Authorities That Have Been Already Cited.
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 Hist. Of The Eng. Law, P. 127.
Blackstone Says, "It Is Agreed by All Our Historians That The
Great Charter Of King john Was, For The Most Part, Compiled from
The Ancient Customs Of The Realm, Or The Laws Of Edward The
Confessor; By Which They Mean The Old Common Law Which Was
Established under Our Saxon Princes." Blackstone'S Introd. To
The Charters. See Blackstone'S Law Tracts, Oxford Ed., P. 289.
Coke Says, " The Common Law Is The Most General And Ancient Law
Of The Realm... The Common Law Appeareth In the Statute Of Magna
Carta, And Other Ancient Statutes, (Which For The Most Part Are
Affirmations Of The Common Law,) In the Original Writs, In
Judicial Records, And In our Books Of Terms And Years." 1
Inst., 115 B.
Coke Also Says, "It (Magna Carta) Was For The Most Part
Declaratory Of The Principal Grounds Of The Fundamental Laws Of
Chapter 11 (Authority Of Magna Carta) Pg 194England, And For The Residue It Was Additional To Supply Some
Defects Of The Common Law... They (Magna Carta And Carta De
Foresta) Were, For The Most Part, But Declarations Of The Ancient
Common Laws Of England, To The Observation And Keeping whereof
The King was Bound And Sworn." Preface To 2 Inst., P. 3 And 5.
Hume Says, "We May Now, From The Tenor Of This Charter, (Magna
Carta,) Conjecture What Those Laws Were Of King edward, (The
Confessor,) Which The English Nation During so Many Generations
Still Desired, With Such An Obstinate Perseverance, To Have
Recalled and Established. They Were Chiefly These Latter Articles
Of Magna Carta; And The Barons Who, At The Beginning of These
Commotions, Demanded the Revival Of The Saxon Laws,
Undoubtedly
Thought That They Had Sufficiently Satisfied the People, By
Procuring them This Concession, Which Comprehended the Principal
Objects To Which They Had So Long Aspired." Hume, Ch. 11.
Edward The First Confessed that The Great Charter Was
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.
Chapter 11 (Authority Of Magna Carta) Pg 195
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
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