An Essay On The Trial By Jury - Lysander Spooner (little red riding hood read aloud .TXT) 📗
- Author: Lysander Spooner
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Time, Is By No Means To Be Considered as A Proof That The Matter
Which It Contains Is New; Nor Can We Trace The Progress Of The
Anglo-Saxon Institutions With Any Degree Of Certainty, By
Following the Dates Of The Statutes In which We Find Them First
Note Pg 98Noticed. All Arguments Founded on The Apparent Chronology Of The
Subjects Included in the Laws, Are Liable To Great Fallacies.
Furthermore, A Considerable Portion Of The Anglo-Saxon Law Was
Never Recorded in writing. There Can Be No Doubt But That The
Rules Of Inheritance Were Well Established and, Defined; Yet We
Have Not A Single Law, And Hardly A Single Document From Which
The Course Of The Descent Of Land Can Be Inferred. * * Positive
Proof Cannot Be Obtained of The Commencement Of Any Institution,
Because The First Written Law Relating to It May Possibly Be
Merely Confirmatory Or Declaratory; Neither Can The Non-Existence
Of Any Institution Be Inferred from The Absence Of Direct
Evidence. Written Laws Were Modified and Controlled by Customs
Of Which No Trace Can Be Discovered until After The Lapse Of
Centuries, Although Those Usages Must Have Been In constant Vigor
During the Long Interval Of Silence." 1 Palgrave'S Rise And
Progress Of The English Commonwealth, 58-9.
[10] Rapin Says, "The Customs Now Practised in england Are, For
The Most Part, The Same As The Anglo-Saxons Brought With Them
From Germany." Rapin'S Dissertation On The Government Of The
Anglo-Saxons, Vol. 2, Oct Ed., P. 138. See Kelham'S Discourse
Before Named.
[11] Hallam Says, "The County Of Sussex Contains Sixty-Five
('Hundreds'); That Of Dorset Forty-Three; While Yorkshire Has
Only Twenty-Six; And Lancashire But Six." 2 Middle Ages, 391.
[12] Excepting also Matters Pertaining to The Collection Of The
Revenue, Which Were Determined in the King'S Court Of Exchequer.
But Even In this Court It Was The Law "That None Be Amerced but
By His Peers." Mirror Of Justices, 49.
[13] "For The English Laws, Although Not Written, May, As It
Should Seem, And That Without Any Absurdity, Be Termed laws,
(Since This Itself Is Law That Which Pleases The Prince Has The
Force Of Law,) I Mean Those Laws Which It Is Evident Were
Promuulgated by The Advice Of The Nobles And The Authority Of The
Prince, Concerning doubts To Be Settled in their Assembly. For If
From The Mere Want Of Writing only, They Should Not Be Considered
Laws, Then, Unquestionably, Writing would Seem To Confer More
Authority Upon Laws Themselves, Than Either The Equity Of The
Persons Constituting, Or The Reason Of Those Framing them."
Glanville'S Preface, P. 38. (Glanville Was Chief Justice Of Henry
Ii., 1180.) 2 Turner'S History Of The Anglo-Saxons, 280.
[14] Mackintosh'S History Of England, Ch. 3. Lardner'S Cabinet
Cyclopedia, 286.
[15] If The Laws Of The King were Received as Authoritative By
The Juries, What Occasion Was There For His Appointing special
Commissioners For The Trial Of Offences, Without The Intervention
Of A Jury, As He Frequently Did, In manifest And Acknowledged
Violation Of Magna Carta, And "The Law Of The Land?" These
Appointments Were Undoubtedly Made For No Other Reason Than That
Note Pg 99The Juries Were Not Sufficiently Subservient, But Judged
According to Their Own Notions Of Right, Instead Of The Will Of
The King Whether The Latter Were Expressed in his Statutes, Or
By His Judges.
[16] Of Course, Mr. Reeve Means To Be Understood That, In the
Hundred court, And Court-Leet, The Jurors Were The Judges, As He
Declares Them To Have Been In the County Court; Otherwise The
"Bailiff" Or "Steward" Must Have Been Judge.
[17] The Jurors Were Sometimes Called " Assessors," Because They
Assessed, Or Determined the Amount Of Fines And Amercements To
Be Imposed.
[18] "The Barons Of The Hundred" Were The Freeholders. Hallam
Says: "The Word Baro, Originally Meaning only A Man, Was Of Very
Large Significance, And Is Not Unfrequently Applied to Common
Freeholders, As In the Phrase Court-Baron." 3 Middle Ages,
14-15.
Blackstone Says: "The Court-Baron * * Is A Court Of Common Law,
And It Is The Court Of The Barons, By Which Name The Freeholders
Were Sometimes Anciently Called; For That It Is Held Before The
Freeholders Who Owe Suit And Service To The Manor." 3
Blackstone, 33.
[19] The Ancient Jury Courts Kept No Records, Because Those Who
Composed the Courts Could Neither Make Nor Read Records. Their
Decisions Were Preserved by The Memories Of The Jurors And Other
Persons Present.
[20] Stuart Says:
"The Courts, Or Civil Arrangements, Which Were
Modelled in germany, Preserved the Independence Of The People;
Aud Having followed the Saxons Into England, And Continuing their
Importance, They Supported the Envied liberty We Boast Of.
"As A Chieftain Led out His Retainers To The Field, And Governed
Them During war; So In peace He Summoned them Together, And
Exerted a Civil Jurisdiction. He Was At Once Their Captain And
Their Judge. They Constituted his Court; And Having inquired with
Him Into The Guilt Of Those Of Their Order Whom Justice Had
Accused, They Assisted him To Enforce His Decrees.
"This Court (The Court-Baron) Was Imported into England; But The
Innovation Which Conquest Introduced into The Fashion Of The
Times Altered somewhat Its Appearance.
"The Head Or Lord Of The Manor Called forth His Attendants To His
Hall. * * He Inquired into The Breaches Of Custom, And Of
Justice, Which Were Committed within The Precincts Of His
Territory, And With His Followers, Who Sat With Him As Judges, He
Determined in all Matters Of Debt, And Of Trespass To A Certain
Note Pg 100Amount. He Possessed a Similar Jurisdiction With The Chieftain In
Germany, And His Tenants Enjoyed an Equal Authority With The
German Retainers.
"But A Mode Of Administration Which Intrusted so Much Power To
The Great Could Not Long Be Exercised without Blame Or Injustice.
The German, Guided by The Candor Of His Mind, And Entering into
All His Engagements With The Greatest Ardor, Perceived not, At
First, That The Chieftain To Whom He Submitted his Disputes Might
Be Swayed, In the Judgments He Pronounced, By Partiality,
Prejudice, Or Interest; And That The Influence He Maintained with
His Followers Was Too Strong To Be Restrained by Justice.
Experience Instructed him Of His Error", He Acknowledged the
Necessity Of Appealing from His Lord; And The Court Of The
Hundred was Erected.
"This Establishment Was Formed both In germany And England, By
The Inhabitants Of A Certain Division, Who Extened their
Jurisdiction Over The Territory They Occupied. [21] They Bound
Themselves Under A Penalty To Assemble At Stated times; And
Having elected the Wisest To Preside Over Them, They Judged, Not
Only All Civil And Criminal Matters, But Of Those Also Which
Regarded religion And The Priesthood. The Judicial Power Thus
Invested in the People Was Extensive; They Were Able To Preserve
Their Rights, And Attended this Court In arms.
[21] "It Was The Freemen In germany, And The Possessors Of Land
In England, Who Were Suitors (Jurors) In the Hundred court. These
Ranks Of Men Were The Same. The Alteration Which Had Happened in
Relation To Property Had Invested the German Freemen With Land Or
Territory."
"As The Communication, However, And Intercourse, Of The
Individuals Of A German Community Began To Be Wider, And More
General, As Their Dealings Enlarged, And As Disputes Arose Among
The Members Of Different Hundreds, The Insufficiency Of These
Courts For The Preservation Of Order Was Gradually Perceived. The
Shyre Mote, Therefore, Or County Court, Was Instituted; And It
Formed the Chief Source Of Justice Both In germany And England.
"The Powers, Accordingly, Which Had Been Enjoyed by The Court Of
The Hundred, Were Considerably Impaired. It Decided no Longer
Concerning capital Offences; It Decided not Concerning matters Of
Liberty, And The Property Of Estates, Or Of Slaves; Its
Judgments, In every Case, Became Subject To Review; And It Lost
Entirely The Decision Of Causes, When It Delayed too Long To
Consider Them.
"Every Subject Of Claim Or Contention Was Brought, In the First
Instance, Or By Appeal, To The County Court; And The Earl, Or
Eorldorman, Who Presided there, Was Active To Put The Laws In
Execution. He Repressed the Disorders Which Fell Out Within The
Circuit Of His Authority; And The Least Remission In hi Duty, Or
The Least Fraud He Committed, Was Complained of And Punished. He
Note Pg 101Was Elected from Among The Great, And Was Above The Temptation
Of
A Bribe; But, To Encourage His Activity, He Was Presented with A
Share Of The Territory He Governed, Or Was Entitled to A
Proportion Of The Fines And Profits Of Justice. Every Man, In his
District, Was Bound To Inform Him Concerning criminals, And To
Assist Him To Bring them To Trial; And, As In rude And Violent
Times The Poor And Helpless Were Ready To Be Oppressed by The
Strong, He Was Instructed particularly To Defend Them.
"His Court Was Ambulatory, And Assembled only Twice A Year,
Unless The Distribution Of Justice Required that Its Meetings
Should Be Oftener. Every Freeholder In the County Was Obliged to
Attend It; And Should He Refuse This Service, His Possessions
Were Seized, And He Was Forced to Find Surety For His Appearance.
The Neighboring earls Held Not Their Courts On The Same Day; And,
What Seems Very Singular, No Judge Was Allowed, After Meals, To
Exercise His Office.
"The Druids Also, Or Priests, In germany, As We Had Formerly
Occasion To Remark, And The Clergy In england, Exercised a
Jurisdiction In the Hundred and County Courts. They Instructed
The People In religious Duties, And In matters Regarding the
Priesthood; And The Princes, Earls, Or Eorldormen, Related to
Them The Laws And Customs Of The Community. These Judges Were
Mutually A Check To Each Other; But It Was Expected that They
Should Agree In their Judgments, And Should Willingly Unite Their
Efforts For The Public Interest. [22]
"The Meeting (The County Court) Was Opened with A Discourse
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