An Essay On The Trial By Jury - Lysander Spooner (little red riding hood read aloud .TXT) 📗
- Author: Lysander Spooner
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Reign; And The Express Recognition Of Such A Right As That Of
Insurrection Has Been Justly Deemed inconsistent With The Majesty
Of Law. But Ruder Ages Had Ruder Sentiments. Force Was Necessary
To Repel Force; And Men Accustomed to See The King'S Authority
Chapter 1 (The Right Of Juries To Judge Of The Justice Of Laws) Section 2 Pg 17Defied by A Private Riot, Were Not Much Shocked when It Was
Resisted in defence Of Public Freedom." 3 Middle Age, 240-2.
Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Pg 18
That The Trial By Jury Is All That Has Been Claimed for It In the
Preceding chapter, Is Proved both By The History And The Language
Of The Great Charter Of English Liberties, To Which We Are To Look
For A True Definition Of The Trial By Jury, And Of Which The Guaranty
For That Trial Is The Vital, And Most Memorable, Part.
Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 1(The History Of Magna Carta) Pg 19In Order To Judge Of The Object And Meaning of That Chapter Of
Magna Carta Which Secures The Trial By Jury, It Is To Be Borne In
Mind That, At The Time Of Magna Carta, The King (With Exceptions
Immaterial To This Discussion, But Which Will Appear Hereafter)
Was, Constitutionally, The Entire Government; The Sole Legislative,
Judicial, And Executive Power Of The Nation. The Executive And
Judicial Officers Were Merely His Servants, Appointed by Him, And
Removable At His Pleasure. In addition To This, "The King himself
Often Sat In his Court, Which Always Attended his Person. He There
Heard Causes, And Pronounced judgment; And Though He Was
Assisted by The Advice Of Other Members, It Is Not To Be Imagined
That A Decision Could Be Obtained contrary To His Inclination Or
Opinion."[1] Judges Were In those Days, And Afterwards, Such Abject
Servants Of The King, That "We Find That King edward I. (1272 To
1307) Fined and Imprisoned his Judges, In the Same Manner As
Alfred the Great, Among The Saxons, Had Done Before Him, By The
Sole Exercise Of His Authority."[2]
Parliament, So Far As There Was A Parliament, Was A Mere Council Of
The King.[3] It Assembled only At The Pleasure Of The King; Sat Only
During his Pleasure; And When Sitting had No Power, So Far As
General Legislation Was Concerned, Beyond That Of Simply Advising
The King. The Only Legislation To Which Their Assent Was
Constitutionally Necessary, Was Demands For Money And Military
Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 1(The History Of Magna Carta) Pg 20Services For Extraordinary Occasions. Even Magna Carta Itself
Makes No Provisions Whatever For Any Parliaments, Except When
The King should Want Means To Carry On War, Or To Meet Some Other
Extraordinary Necessity.[4] He Had No Need of Parliaments To Raise
Taxes For The Ordinary Purposes Of Government; For His Revenues
From The Rents Of The Crown Lands And Other Sources, Were Ample
For All Except Extraordinary Occasions. Parliaments, Too, When
Assembled, Consisted only Of Bishops, Barons, And Other Great Men
Of The Kingdom, Unless The King chose To Invite Others.[5] There
Was No House Of Commons At That Time, And The People Had No
Right To Be Heard, Unless As Petitioners.[6]
Even When Laws Were Made At The Time Of A Parliament, They Were
Made In the Name Of The King alone. Sometimes It Was Inserted in
The Laws, That They Were Made With The Consent Or Advice Of The
Bishops, Barons, And Others Assembled; But Often This Was Omitted.
Their Consent Or Advice Was Evidently A Matter Of No Legal
Importance To The Enactment Or Validity Of The Laws, But Only
Inserted, When Inserted at All, With A View Of Obtaining a More
Willing submission To Them On The Part Of The People. The Style Of
Enactment Generally Was, Either "The King wills And Commands,"
Or Some Other Form Significant Of The Sole Legislative Authority Of
The King. The King could Pass Laws At Any Time When It Pleased
Him. The Presence Of A Parliament Was Wholly Unnecessary. Hume
Says, "It Is Asserted by Sir Harry Spelman, As An Undoubted fact,
That, During the Reigns Of The Norman Princes, Every Order Of The
King, Issued with The Consent Of His Privy Council, Had The Full
Force Of Law."[7] And Other Authorities Abundantly Corroborate This
Assertion.[8]The King was, Therefore, Constitutionally The
Government; And The Only Legal Limitation Upon His Power Seems To
Have Been Simply The Common Law, Usually Called "The Law Of The
Land," Which He Was Bound By Oath To Maintain; (Which Oath Had
About The Same Practical Value As Similar Oaths Have Always Had.)
This "Law Of The Land" Seems Not To Have Been Regarded at All By
Many Of The Kings, Except So Far As They Found It Convenient To Do
So, Or Were Constrained to Observe It By The Fear Of Arousing
Resistance. But As All People Are Slow In making resistance,
Oppression And Usurpation Often Reached a Great Height; And, In the
Case Of John, They Had Become So Intolerable As To Enlist The Nation
Almost Universally Against Him; And He Was Reduced to The
Necessity Of Complying with Any Terms The Barons Saw Fit To Dictate
To Him.
It Was Under These Circumstances, That The Great Charter Of Englsh
Liberties Was Granted.
The Barons Of England, Sustained by The Common People, Having
Their King in their Power, Compelled him, As The Price Of His Throne,
To Pledge Himself That He Would Punish No Freeman For A Violation
Of Any Of His Laws, Unless With The Consent Of The Peers That Is, The
Equals Of The Accused.
The Question Here Arises, Whether The Barons And People Intended
That Those Peers (The Jury) Should Be Mere Puppets In the Hands Of
Chapter 2 (The Trial By Jury, As Defined by Magna Carta) Section 1(The History Of Magna Carta) Pg 21The King, Exercising no Opinion Of Their Own As To The Intrinsic
Merits Of The Accusations They Should Try, Or The Justice Of The Laws
They Should Be Called on To Enforce? Whether Those Haughty And
Victorious Barons, When They Had Their Tyrant King at Their Feet,
Gave Back To Him His Throne, With Full Power To Enact Any
Tyrannical Laws He Might Please, Reserving only To A Jury (" The
Country") The Contemptible And Servile Privilege Of Ascertaining,
(Under The Dictation Of The King, Or His Judges, As To The Laws Of
Evidence), The Simple Fact Whether Those Laws Had Been
Transgressed? Was This The Only Restraint, Which, When They Had All
Power In their Hands, They Placed upon The Tyranny Of A King,
Whose Oppressions They Had Risen In arms To Resist? Was It To
Obtain Such A Charter As That, That The Whole Nation Had United, As It
Were, Like One Man, Against Their King? Was It On Such A Charter
That They Intended to Rely, For All Future Time, For The Security Of
Their Liberties? No. They Were Engaged in no Such Senseless Work
As That. On The Contrary, When They Required him To Renounce
Forever The Power To Punish Any Freeman, Unless By The Consent Of
His Peers, They Intended those Powers Should Judge Of, And Try, The
Whole Case On Its Merits, Independently Of All Arbitrary Legislation,
Or Judicial Authority, On The Part Of The King. In this Way They Took
The Liberties Of Each Individual And Thus The Liberties Of The Whole
People Entirely Out Of The Hands Of The King, And Out Of The Power
Of His Laws, And Placed them In the Keeping of The People
Themselves. And This Itwas That Made The Trial B Jury The Palladium
Of Their Liberties.
The Trial By Jury, Be It Observed, Was The Only Real Barrier
Interposed by Them Against Absolute Despotism. Could This Trial,
Then, Have Been Such An Entire Farce As It Necessarily Must Have
Been, If The Jury Had Had No Power To Judge Of The Justice Of The
Laws The People Were Required to Obey? Did It Not Rather Imply That
The Jury Were To Judge Independently And Fearlessly As To
Everything involved in the Charge, And Especially As To Its Intrinsic
Justice, And Thereon Give Their Decision, (Unbiased by Any
Legislation Of The King,) Whether The Accused might Be Punished?
The Reason Of The Thing, No Less Than The Historical Celebrity Of The
Events, As Securing the Liberties Of The People, And The Veneration
With Which The Trial By Jury Has Continued to Be Regarded,
Notwithstanding its Essence And Vitality Have Been Almost Entirely
Extracted from It In practice, Would Settle The Question, If Other
Evidences Had Left The Matter In doubt.
Besides, If His Laws Were To Be Authoritative With The Jury, Why
Should John Indignantly Refuse, As At First He Did, To Grant The
Charter,
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