An Essay On The Trial By Jury - Lysander Spooner (epub e ink reader .TXT) 📗
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Charter Of The Forest For The Wealth Of The Realm.
"And We Will, That If Any Judgment Be Given From Henceforth,
Contrary To The Points Of The Charters Aforesaid, By The Justices, Or
By Any Other Our Ministers That Hold Plea Before Them Against
The Points Of The Charters, It Shall Be Undone, And Holden For
Naught." 25 Edward I., Ch. 1 And 2. (1297.)
Blackstone Also 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
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
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 86Was, 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.
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
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 87Causes 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
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.
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 88
[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
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
Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 89Code, 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
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