An Essay On The Trial By Jury - Lysander Spooner (little red riding hood read aloud .TXT) 📗
- Author: Lysander Spooner
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Which They Have Revealed, And All The Generous Virtues Which They
Have Inspired, Are Of Inferior Value When Compared with The
Subjection Of Men And Their Rulers To The Principles Of Justice;
If, Indeed, It Be Not More True That These Mighty Spirits Could
Not Have Been Formed except Under Equal Laws, Nor Roused to Full
Activity Without The Influence Of That Spirit Which The Great
Charter Breathed over Their Forefathers." Mackintosh'S Hist. Of
Eng., Ch. 3, [8]
Of The Great Charter, The Trial By Jury Is The Vital Part, And
The Only Part That Places The Liberties Of The People In their
Own Keeping. Of This Blackstone Says:
"The Trial By Jury, Or The Country, Per Patriam, Is Also That
Trial By The Peers Of Every Englishman, Which, As The Grand
Bulwark Of His Liberties, Is Secured to Him By The Great Charter;
Nullus Liber Homo Capiatur, Vel Imprisonetur, Aut Exuletur, Aut
Aliquo Modo Destruatur, Nisi Per Legale Judicial Parium Suorum,
Vel Per Legem Terrae.
The Liberties Of England Cannot But Subsist So Long As This
Palladium Remains Sacred and Inviolate, Not Only From All Open,
Attacks, Which None Will Be So Hardy As To Make, But Also From
All Secret Machinations Which May Sap And Undermine It." [9]
"The Trial By Jury Ever Has Been, And I Trust Ever Will Be,
Looked upon As The Glory Of The English Law... It Is The Most
Transcendent Privilege Which Any Subject Can Enjoy Or Wish For,
That He Cannot Be Affected in his Property, His Liberty, Or His
Person, But By The Unanimous Consent Of Twelve Of His Neighbors
And Equals."[10]
Hume Calls The Trial By Jury "An Institution Admirable In itself,
And The Best Calculated for The Preservation Of Liberty And The
Administration Of Justice, That Ever Was Devised by The Wit Of
Man." [11]
An Old Book, Called "English Liberties," Says:"English
Parliaments Have All Along Been Most Zealous For Preserving this
Great Jewel Of Liberty, Trials By Juries Having no Less Than
Fifty-Eight Several Times, Since The Norman Conquest, Been
Established and Confirmed by The Legislative Power, No One
Privilege Besides Having been Ever So Often Remembered in
Parliament."{12]
[1] Mackintosh'S Hist. Of Eng., Ch. 3. 45 Lardner'S Cab. Cyc.,
354.
Chapter 11 (Authority Of Magna Carta) Pg 196
[2] "Forty Shilling freeholders" Were Those "People Dwelling and
Resident In the Same Counties, Whereof Every One Of Them Shall
Have Free Land Or Tenement To The Value Of Forty Shillings By The
Year At The Least Above All Charges." By Statute 8 Henry 6, Ch.
7, (1429,) These Freeholders Only Were Allowed to Vote For
Members Of Parliament From The Counties.
[3] He Probably Speaks In its Favor Only To Blind The Eyes Of The
People To The Frauds He Has Attempted upon Its True Meaning.
[4] It Will Be Noticed that Coke Calls These Confirmations Of The
Charter "Acts Of Parliament," Instead Of Acts Of The King alone.
This Needs Explanation.
It Was One Of Coke'S Ridiculous Pretences, That Laws Anciently
Enacted by The King, At The Request, Or With The Consent, Or By
The Advice, Of His Parliament, Was "An Act Of Parliament,"
Instead Of The Act Of The King. And In the Extracts Cited, He
Carries This Idea So Far As To Pretend That The Various
Confirmations Of The Great Charter Were "Acts Of Parliament,"
Instead Of The Acts Of The Kings. He Might As Well Have Pretended
That The Original Grant Of The Charter Was An "Act Of Parliament;
"Because It Was Not Only Granted at The Request, And With The
Consent, And By The Advice, But On The Compulsion Even, Of Those
Who Commonly Constituted his Parliaments. Yet This Did Not Make
The Grant Of The Charter "An Act Of Parliament." It Was Simply An
Act Of The King.
The Object Of Coke, In this Pretence, Was To Furnish Some Color
For The Palpable False- Hood That The Legislative Authority,
Which Parliament Was Trying to Assume In his Own Day, And Which
It Finally Succeeded in obtaining, Had A Precedent In the Ancient
Constitution Of The Kingdom.
There Would Be As Much Reason In saying that, Because The Ancient
Kings Were In the Habit Of Passing laws In special Answer To The
Petitions Of Their Subjects, Therefore Those Petitioners Were A
Part Of The Legislative Power Of The Kingdom.
One Great Objection To This Argument Of Coke, For The Legislative
Authority Of The Ancient Parliaments, Is That A Very Large
Probably Much The Larger Number Of Legislative Acts Were Done
Without The Advice, Consent, Request, Or Even Presence, Of A
Parliament. Not Only Were Many Formal Statutes Passed without
Any Mention Of The Consent Or Advice Of Parliament, But A Simple
Order Of The King in council, Or A Simple Proclamation, Writ, Or
Letter Under Seal, Issued by His Command, Had The Same Force As
What Coke Calls "An Act Of Parliament." And This Practice
Continued, To A Considerable Extent At Least, Down To Coke'S Own
Time.
The Kings Were Always In the Habit Of Consulting their
Parliaments, More Or Less, In regard To Matters Of Legislation,
Chapter 11 (Authority Of Magna Carta) Pg 197Not Because Their Consent Was Constitutionally Necessary, But In
Order To Make Influence In favor Of Their Laws, And Thus Induce
The People To Observe Them, And The Juries To Enforce Them.
The General Duties Of The Ancient Parliaments Were Not
Legislative, But Judicial, As Will Be Shown More Fully Hereafter.
The People Were Not Represented in the Parliaments At The Time Of
Magna Carta, But Only The Archbishops, Bishops, Earls, Barons,
And Knights; So That Little Or Nothing would Have Been Gained for
Liberty By Coke'S Idea That Parliament Had A Legislative Power.
He Would Only Have Substituted an Aristocracy For A King. Even
After The Commons Were Represented in parliament, They For Some
Centuries Appeared only As Petitioners, Except In the Matter Of
Taxation, When Their Consent Was Asked. And Almost The Only
Source Of Their Influence On Legislation Was This: That They
Would Sometimes Refuse Their Consent To The Taxation, Unless The
King would Pass Such Laws As They Petitioned for; Or, As Would
Seem To Have Been Much More Frequently The Case, Unless He Would
Abolish Such Laws And Practices As They Remonstrated against.
The Influence, Or Power Of Parliament, And Especially Of The
Commons, In the General Legislation Of The Country, Was A Thing
Of Slow Growth, Having its Origin In a Device Of The King to Get
Money Contrary To Law, (As Will Be Seen In the Next Volume,) And
Not At All A Part Of The Constitution Of The Kingdom, Nor Having
Its Foundation In the Consent Of The People. The Power, As At
Present Exercised, Was Not Fully Established until 1688, (Near
Five Hundred years After Magna Carta,) When The House Of
Commons (Falsely So Called) Had Acquired such Influence As The
Representative, Not Of The People, But Of The Wealth, Of The
Nation, That They Compelled, The King to Discard The Oath Fixed
By The Constitution Of The Kingdom; (Which Oath Has Been Already
Given In a Former Chapter, [5] And Was, In substance, To Preserve
And Execute The Common Law, The Law Of The Land, Or, In the
Words Of The Oath, "The Just Laws And Customs Which The Common
People Had Chosen;") And To Swear That He Would "Govern The
People Of This Kingdom Of England, And The Dominions Thereto
Belonging, Accordingto The Statutes In parliament Agreed on, And
The Laws And Customs Of The Same." [6]
The Passage And Enforcement Of This Statute, And The Assumption
Of This Oath By The King, Were Plain Violations Of The English
Constitution, Inasmuch As They Abolished, So Far As Such An Oath
Could Abolish, The Legislative Power Of The King, And Also "Those
Just Laws And Customs Which The Common People (Through Their
Juries) Had Chosen," And Substituted the Will Of Parliament In
Their Stead.
Coke Was A Great Advocate For The Legislative Power Of
Parliament, As A Means Of Restraining the Power Of The King. As
He Denied all Power To Juries To Decide Upon The Obligation Of
Laws, And As He Held That The Legislative Power Was "So
Transcendent And Absolute As (That) It Cannot Be Confined, Either
For Causes Or Persons, Within Any Bounds," [7] He Was Perhaps
Honest In holding that It Was Safer To Trust This Terrific Power
In The Hands Of Parliament, Than In the Hands Of The King. His
Chapter 11 (Authority Of Magna Carta) Pg 198Error Consisted in holding that Either The King or Parliament Had
Any Such Power, Or That They Had Any Power At All To Pass Laws
That Should Be Binding upon A Jury.
These Declarations Of Coke, That The Charter Was Confirmed by
Thirty-Two "Acts Of Parliament," Have A Mischievous Bearing in
Another Respect. They Tend To Weaken The Authority Of The
Charter, By Conveying the Impression That The Charter Itself
Might Be Abolished by "Act Of Parliament." Coke Himself Admits
That It Could Not Be Revoked or Rescinded by The King; For He
Says, "All Pretence Of Prerogative Against Magna Carta Is Taken
Away." (2 Inst., 36.)
He Knew Perfectly Well, And The Whole English Nation Knew, That
The King could Not Lawfully Infringe Magna Carta. Magna Carta,
Therefore, Made It Impossible That Absolute Power Could Ever Be
Practically Established in england, In the Hands Of The King.
Hence, As Coke Was An Advocate For Absolute Power, That Is, For
A Legislative Power "So Transcendent And Absolute As (That) It
Cannot, Be Confined, Either For Causes Or Persons, Within Any
Bounds," There Was No Alternative For Him But To Vest This
Absolute Power In parliament. Had He Not Vested it In parliament,
He Would Have Been Obliged to Abjure It Altogether, And To
Confess That The People, Through Their Juries, Had The Right To
Judge Of The Obligation Of All Legislation Whatsoever; In other
Words, That They Had The Right To Confine The Government Within
The Limits Of "Those Just Laws And Customs Which The Common
People (Acting as Jurors) Had Chosen." True To His Instincts, As
A Judge, And As A Tyrant, He Assumed that This Absolute Power Was
Vested in the Hands Of Parliament.
But The Truth Was That, As By The English Constitution Parliament
Had No Authority At All For General Legislation, It Could No More
Confirm, Than It Could Abolish, Magna Carta.
These Thirty-Two Confirmations Of Magna Carta, Which Coke
Speaks Of As "Acts Of Parliament," Were Merely Acts Of The King. The
Parliaments, Indeed, By Refusing to Grant Him Money, Except, On
That Condition, And Otherwise, Had Contributed to Oblige Him To
Make The Confirmations; Just As They Had Helped to Oblige Him By
Arms
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