An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗

Jury,  All Was Meant That Has Now Been

Ascribed To It,  And That The Legislation Of The King Was To Be Of

No Authority With The Jury Beyond What They Chose To Allow To It,

And That The Juries Were To Limit The Punishments To Be Inflicted, 

We Should Find That Evidence In Various Sources,  Such As The Laws, 

Customs,  And Characters Of Their Ancestors On The Continent,  And

Of The Northern Europeans Generally; In The Legislation And Customs

That Immediately Succeeded Magna Carta; In The Oaths That Have

At Different Times Been Administered To Jurors,  &C;.,  &C;. This

Evidence Can Be Exhibited Here But Partially. To Give It All Would

Require Too Much Space And Labor

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 Pg 44

Weakness Of The Regal Authority.

 

Hughes,  In His Preface To His Translation Of Horne's "Mirror Of

Justices," (A Book Written In The Time Of Edward I,  1272 To

1307,) Giving A Concise View Of The Laws Of England Generally,

Says:

 

"Although In The Saxon's Time I Find The Usual Words Of The Acts

Then To Have Been Edictum,  (Edict,) Constitutio,  (Statute,)

Little Mention Being Made Of The Commons,  Yet I Further Find

That,  Tum Demum Leges Vim Et Vigorem Habuerunt,  Cum Fuerunt

Non Modo Institutae Sed Firmatae Approbatione Communitatis." (The

Laws Had Force And Vigor Only When They Were Not Only Enacted,

But Confirmed By The Approval Of The Community.)

 

The Mirror Of Justices Itself Also Says,  (Ch. 1,  Sec. 3,) In

Speaking "Of The First Constitutions Of The Ancient King."

 

"Many Ordinances Were Made By Many Kings,  Until The Time Of The

King That Now Is (Edward I.); The Which Ordinances Were Abused,

Or Not Used By Many,  Nor Very Current,  Because They Were Not Put

In Writing,  And Certainly Published."   Mirror Of Justices,  P. 6.

 

Hallam Says:

 

"The Franks,  Lombards,  And Saxons Seem Alike To Have Been

Jealous Of Judicial Authority; And Averse To Surrendering What Concerned

Every Man's Private Right,  Out Of The Hands Of His Neighbors And

Equals."   1 Middle Ages,  271.

 

The "Judicial Authority," Here Spoken Of,  Was The Authority Of

The Kings,  (Who At That Time United The Office Of Both

Legislators And Judges,),  And Not Of A Separate Department Of

Government,  Called The Judiciary,  Like What Has Existed In More

Modern Times. [1]

 

Hume Says:

 

"The Government Of The Germans,  And That Of All The Northern

Nations,  Who Established Themselves On The Ruins Of Rome,  Was

Always Extremely Free; And Those Fierce People,  Accustomed To

Independence And Inured To Arms,  Were More Guided By

Persuasion,  Than Authority,  In The Submission Which They Paid To Their

Princes. The Military Despotism,  Which Had Taken Place N The

Roman Empire,  And Which,  Previously To The Irruption Of Those

Conquerors,  Had Sunk The Genius Of Men,  And Destroyed Every Noble

Principle Of Science And Virtue,  Was Unable To Resist The

Vigorous Efforts Of A Free People,  And Europe,  As From A New

Epoch,  Rekindled Her Ancient Spirit,  And Shook Off The Base

Servitude To Arbitrary Will And Authority Under Which She Had So

Long Labored. The Free Constitutions Then Established,  However

Impaired By The Encroachments Of Succeeding Princes,  Still

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 Pg 45

Impaired By The Encroachments Of Succeeding Princes,  Still

Preserve An Air Of Independence And Legal Administration,  Which

Distinguished The European Nations; And If That Part Of The Globe

Maintain Sentiments Of Liberty,  Honor,  Equity,  And Valor,

Superior To The Rest Of Mankind,  It Owes These Advantages Chiefly

To The Seeds Implanted By Those Generous Barbarians.

 

"The Saxons,  Who Subdued Britain,  As They Enjoyed Great Liberty

In Their Own Country,  Obstinately Retained That Invaluable

Possession In Their New Settlement; And They Imported Into This

Island The Same Principles Of Independence,  Which They Had

Inherited From Their Ancestors. The Chieftains,  ( For Such They

Were,  More Than Kings Or Princes,) Who Commanded Them In Those

Military Expeditions,  Still Possessed A Very Limited Authority;

And As The Saxons Exterminated,  Rather Than Subdued The Ancient

Inhabitants,  They Were,  Indeed,  Transplanted Into A New

Territory,  But Preserved Unaltered All Their Civil And Military

Insfitutions. The Language Was Pure Saxon; Even The Names Of

Places,  Which Often Remain While The Tongue Entirely  Changes,

Were Almost All Affixed By The Conquerors; The Manners And

Customs Were Wholly German; And The Same Picture Of A Fierce And

Bold Liberty,  Which Is Drawn By The Masterly Pen Of Tacitus,  Will

Suit Those Founders Of The English Government. The King,  So Far

From Being Invested With Arbitrary Power,  Was Only Considered As

The First Among The Citizens; His Authority Depended More On His

Personal Qualities Than On His Station; He Was Even So Far On A

Level With The People,  That A Stated Price Was Fixed For His

Head,  And A Legal Fine Was Levied Upon His Murderer,  Which Though

Proportionate To His Station,  And Superior To That Paid For The

Life Of A Subject,  Was A Sensible Mark Of His Subordination To

The Community."   1 Hume,  Appendix,  L.

 

Stuart Says:

 

"The Saxons Brought Along With Them Into Britain Their Own

Customs,  Language,  And Civil Institutions. Free In Germany,  They

Renounced Not Their Independence,  When They Had Conquered.

Proud From Victory,  And With Their Swords In Their Hands,  Would

They Surrender Their Liberties To A Private Man? Would Temporary

Laders,  Limited In Their Powers,  And Unprovided In Resources,

Ever Think To Usurp An Authority Over Warriors,  Who Considered

Themselves As Their Equals,  Were Impatient Of Control,  And

Attached With Devoted Zeal To Their Privileges? Or,  Would They

Find Leisure To Form Resolutions,  Or Opportunities To Put Them In

Practice,  Amidst The Tumult And Confusion Of Those Fierce And

Bloody Wars,  Which Their Nations First Waged With The Britons,

And Then Engaged In Among Themselves? Sufficiently Flattered In

Leading The Armies Of Their Countrymen,  The Ambition Of

Commanders Could As Little Suggest Such Designs,  As The Liberty

Of The People Could Submit To Them. The Conquerors Of Britain

Retained Their Independence; And This Island Saw Itself Again In

That Free State In Which The Roman Arms Had Discovered It.

 

"The Same Firmness Of Character,  And Generosity Of Manners,

Which,  In General,  Distinguished The Germans,  Were Possessed In

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 Pg 46

An Eminent Degree By The Saxons; And While We Endeavor To Unfold

Their Political Institutions,  We Must Perpetually Turn Our

Observation To That Masterly Picture In Which The Roman Historian

Has Described These Nations. In The Woods Of Germany Shall We

Find The Principles Which Directed The State Of Land,  In The

Different Kingdoms Of Europe; And There Shall We Find The

Foundation Of Those Ranks Of Men,  And Of Those Civil

Arrangements,  Which The Barbarians Everywhere Established; And

Which The English Alone Have Had The Good Fortune,  Or The Spirit,

To Preserve."   Stuart On The Constitution Of England,  P. 59 - 61.

 

"Kings They (The Germans) Respected As The First Magistrates Of

The State; But The Authority Possessed By Them Was Narrow And

Limited."   Ditto,  P. 134.

 

"Did He,  (The King,) At Any Time,  Relax His Activity And Martial

Ardor,  Did He Employ His Abilities To The Prejudice Of His

Nation,  Or Fancy He Was Superior To The Laws; The Same Power

Which Raised Him To Honor,  Humbled And Degraded Him. The

Customs And Councils Of His Country Pointed Out To Him His

Duty; And If He Infringed On The Former,  Or Disobeyed The Latter, 

A Fierce People Set Aside His Authority.

 

"His Long Hair Was The Only Ornament He Affected,  And To Be

Foremost To Attack An Enemy Was His Chief Distinction.

Engaged In Every Hazardous Expedition,  He Was A Stranger To

Repose; And,  Rivalled By Half The Heroes Of His Tribe,  He Could

Obtain Little Power. Anxious And Watchful For The Public

Interest,  He Felt Every Moment His Dependence,  And Gave

Proofs Of His Suhmission.

 

"He Attended The General Assembly Of His Nation,  And Was Allowed

The Privilege To Harangue It First; But The Arts Of Persuasion,

Though Known And Respected By A Rude People,  Were Unequally

Opposed To The Prejudices And Passions Of Men."   Ditto,  P. 135 - 6.

 

"The Authority Of A Saxon Mnarch Was Not More Considerable. The

Saxons Submitted Not To The Arbitrary Rule Of Princes. They

Administered An Oath To Their Sovereigns,  Which Bound Them To

Aeknowledge The Laws,  And To Defend The Rights Of The Church And

People; And If They Forgot This Obligation,  They Forfeited Their

Office. In Both Countries,  A Price Was Affixed On Kings,  A Fine

Expiated Their Murder,  As Well As That Of The Meanest Citizen;

And The Smallest Violation Of Ancient Usage,Or The Least Step

Towards Tyranny,  Was Always Dangerous,  And Often Fatal To Them." 

Ditto,  P. 189-40.

 

"They Were Not Allowed To Impose Taxes On The Kingdom."   Ditto,

P. 146.

 

"Like The German Monarchs,  They Deliberated In The General

Assembly Of The Nation; But Their Legislative Authority Was Not

Much Respected; And Their Assent Was Considered In No Better

Light Than As A Form. This,  However,  Was Their Chief Prerogative;

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 Pg 47

And They Employed It To Acquire An Ascendant In The State. To Art

And Insinuation They Turned,  As Their Only Resource,  And

Flattered A People Whom They Could Not Awe; But Address,  And The

Abilities To Persuade,  Were A Weak Compensation For The Absence

Of Real Power.

 

"They Declared War,  It Is Said,  And Made Peace. In Both Cases,

However,  They Acted As The Instruments Of The State,  And Put In

Execution The Resolutions Which Its Councils Had Decreed. If,

Indeed,  An Enemy Had Invaded The Kingdoms,  And Its Glory And Its

Safety Were Concerned,  The Great Lords Took The Field At The Call

Of Their Sovereign. But Had A Sovereign Declared War Against A

Neighboring State,  Without Requiring Their Advice,  Or If