An Essay On The Trial By Jury - Lysander Spooner (epub e ink reader .TXT) 📗

Chapter 11 (Authority Of Magna Carta) Pg 167

Ch. 3. 45 Lardner's Cab. Cyc.,  221.

 

Coke,  Who Has Labored So Hard To Overthrow The Most Vital

Principles Of Magna Carta,  And Who,  Therefore,  Ought To Be

Considered Good Authority When He Speaks In Its Favor,  [3] Says:

 

"It Is Called Magna Carta,  Not That It Is Great In Quantity,  For

There Be Many Voluminous Charters Commonly Passed,  Specially In

These Later Times,  Longer Than This Is; Nor Comparatively In

Respect That It Is Greater Than Charta De Foresta,  But In Respect

Of The Great Importance And Weightiness Of The Matter,  As

Hereafter Shall Appear; And Likewise For The Same Cause Charta De

Foresta; And Both Of Them Are Called Magnae Char- Tae Libertatum

Angliae,  (The Great Charters Of The Liberties Of England.)

 

"And It Is Also Called Charta Libertatum Regni,  (Charter Of The

Liberties Of The Kingdom;) And Upon Great Reason It Is So Called

Of The Effect,  Quia Liberos Facit,  (Because It Makes Men Free.)

Sometime For The Same Cause (It Is Called) Communis Libertas,

(Common Liberty,) And Le Chartre Des Franchises,  (The Charter Of

Franchises.)

 

"It Was For The Most Part Declaratory Of The Principal Grounds Of

The Fundamental Laws Of England,  And For The Residue It Is

Additional To Supply Some Defects Of The Common Law.

 

"Also,  By The Said Act Of 25 Edward I.,  (Called Confirmatio

Chartarum,) It Is Adjudged In Parliament That The Great Charter

And The Charter Of The Forest Shall Be Taken As 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.

 

"After The Making Of Magna Charta,  And Charta De Foresta,  Divers

Learned Men In The Laws,  That I May Use The Words Of The Record,

Kept Schools Of The Law In The City Of London,  And Taught Such As

Resorted To Them The Laws Of The Realm,  Taking Their Foundation

Of Magna Charta And Charta De Foresta.

 

"And The Said Two Charters Have Been Confirmed,  Established,  And

Commanded To Be Put In Execution By Thirty-Two Several Acts Of

Parliament In All.

 

"This Appeareth Partly By That Which Hath Been Said,  For That It

Hath So Often Been Confirmed By The Wise Providence Of So Many

Acts Of Parliament.

 

"And Albeit Judgments In The King's Courts Are Of High Regard In

Law,  And Judicia (Judgments) Are Accounted As Jurisdicta,  (The

Speech Of The Law Itself,) Yet It Is Provided By Act Of

Parliament,  That If Any Judgment Be Given Contrary To Any Of The

Points Of The Great Charter And Charta De Foresta,  By The

Justices,  Or By Any Other Of The King's Ministers,  &C;.,  It Shall

Chapter 11 (Authority Of Magna Carta) Pg 168

Be Undone,  And Holden For Naught.

 

"And That Both The Said Charters Shall Be Sent Under The Great

Seal To All Cathedral Churches Throughout The Realm,  There To

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.

 

"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.

Chapter 11 (Authority Of Magna Carta) Pg 169

 

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,

Finally,  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

Chapter 11 (Authority Of Magna Carta) Pg 170

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

England,  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