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

He Meant

To Revenge By Arms An Insult Offered To Him By A Subject,  A

Haughty And Independent Nobility Refused Their Assistance. These

They Considered As The Quarrels Of The King,  And Not Of The

Nation; And In All Such Emergencies He Could Only Be Assisted By

His Retainers And Dependents."   Ditto,  P. 147   8.

 

"Nor Must We Imagine That The Saxon,  Any More Than The German

Monarchs,  Succeeded Each Other In A Lineal Descent,  [2] Or That

They Disposed Of The Crown At Their Pleasure. In Both Countries,

The Free Election Of The People Filled The Throne; And Their

Choice Was The Only Rule By Which Princes Reigned. The

Succession,  Accordingly,  Of Their Kings Was Often Broken And

Interrupted,  And Their Depositions Were Frequent And Groundless.

The Will Of A Prince Whom They Had Long Respected,  And The Favor

They Naturally Transferred To His Descendant,  Made Them Often

Advance Him To The Royal Dignity; But The Crown Of His Ancestor

He Cnsidered As The Gift Of The People,  And Neither Expected Nor

Claimed It As A Right."   Ditto,  P. 151   3.

 

In Germany "It Was The Business Of The Great To Command In War,

And In Peace They Distributed Justice.

 

"The Princes In Germany Were Earls In England. The Great

Contended In Both Countries In The Number Of Their Retainers,  And

In That Splendor And Magnificence Which Are So Alluring To A Rude

People; And Though They Joined To Set Bounds To Regal Power,  They

Were Often Animated Against Each Other With The Fiercest Hatred.

To A Proud And Impatient Nobility It Seemed Little And Unsuiting

To Give Or Accept Compositions For The Injuries They Committed Or

Received; And Their Vassals Adopting Their Resentment And

Passions,  War And Bloodshed Alone Could Terminate Their Quarrels.

What Necessarily Resulted From Their Situation In Society,  Was

Continued As A Privilege; And The Great,  In Both Countries,  Made

War,  Of Their Private Authority,  On Their Enemies. The Saxon

Earls Even Carried Their Arms Against Their Sovereigns; And,

Surrounded With Retainers,  Or Secure In Fortresses And Castles,

They Despised Their Resentment,  And Defied Their Power.

 

"The Judges Of The People,  They Presided In Both Countries In

Courts Of Law. [3] The Particular Districts Over Which They

Exerted Their Authority Were Marked Out In Germany By The Council

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 Pg 48

Of The State; And In England Their Jurisdiction Extended Over The

Fiefs And Other Territories They Possessed. All Causes,  Both

Civil And Criminal,  Were Tried Before Them; And They Judged,

Except In Cases Of The Utmost Importance,  Without Appeal. They

Were Even Allowed To Grant Pardon To Criminals,  And To Correct By

Their Clemency The Rigors Of Justice.  Nor Did The Sovereign

Exercise Any Authority In Their Lands. In These His Officers

Formed No Courts,  And His Writ Was Disregarded.

 

"They Had Officers,  As Well As The King,  Who Collected Their

Revenues,  And Added To Their Greatness; And The Inhabitants Of

Their Lands They Distinguished By The Name Of Subjects.

 

"But To Attend The General Assembly Of Their Nation Was The Chief

Prerogative Of The German And Saxon Princes; And As They

Consulted The Interest Of Their Country,  And Eliberated

Concerning Matters Of State,  So In The King's Court,  Of Which

Also They Were Members,  They Assisted To Pronounce Judgment In

The Complaints And Appeals Which Were Lodged In It."   Ditto,  P.

158 To 165.

 

Henry Says:

 

"Nothing Can Be More Evident Than This Important Truth; That Our

Anglo-Saxon Kings Were Not Absolute Monarchs; But That Their

Powers And Prerogatives Were Limited By The Laws And Customs Of

The Country. Our Saxon Ancestors Had Been Governed By Limited

Monarchs In Their Native Seats On The Continent; And There Is Not

The Least Appearance Or Probability That They Relinquished Their

Liberties,  And Submitted To Absolute Government In Their New

Settlements In This Island. It Is Not To Be Imagined That Men,

Whose Reigning Passion Was The Love Of Liberty,  Would Willingly

Resign It; And Their New Sovereigns,  Who Had Been Their

Fellow-Soldiers,  Had Certainly No Power To Compel Them To Such A

Resignation."   3 Henry's History Of Great Britain,  358.

 

Mackintosh Says:"The Saxon Chiefs,  Who Were Called. Kings,

Originally Acquired Power By The Same Natural Causes Which Have

Gradually,  And Everywhere,  Raised A Few Men Above Their Fellows.

They Were,  Doubtless,  More Experienced,  More Skillful,  More

Brave,  Or More Beautiful,  Than Those Who Followed Them. * * A

King Was Powerful In War By The Lustre Of His Arms,  And The

Obvious Necessity Of Obedience. His Influence In Peace Fluctuated

With His Personal Character. In The Progress Of Usage His Power

Became More Fixed And More Limited. * * It Would Be Very

Unreasonable To Suppose That The Northern Germans Who Had

Conquered England,  Had So Far Changed Their Characteristic Habits

From The Age Of Tacitus,  That The Victors Became Slaves,  And That

Their Generals Were Converted Into Tyrants."   Mackintosh's Hist.

Of England,  Ch. 2. 45 Lardner's Cab. Cyc.,  73-4.

 

Rapin,  In His Discourse On The "Origin And Nature Of The English

Constitution," Says:

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 Pg 49

"There Are But Two Things The Saxons Did Not Think Proper To

Trust Their Kings With; For Being Of Like Passions With Other

Men,  They Might Very Possibly Abuse Them; Namely,  The Power Of

Changing The Laws Enacted By Consent Of King And People; And The

Power Of Raising Taxes At Pleasure.From These Two Articles Sprung

Numberless Branches Concerning The Liberty And Property Of The

Subject,  Which The King Cannot Touch,  Without Breaking The

Constitution,  And They Are The Distinguishing Character Of The

English Monarchy. The Prerogatives Of The Crown,  And The Rights

And Privileges Of The People,  Flowing From The Two Fore-Mentioned

Articles,  Are The Ground Of All The Laws That From Time To Time

Have Been Made By Unanimous Consent Of King And People. The

English Government Consists In The Strict Union Of The King's

Prerogatives With The People's Liberties. * * But When Kings

Arose,  As Some There Were,  That Aimed At Absolute Power,  By

Changing The Old,  And Making New Laws,  At Pleasure; By Imposing

Illegal Taxes On The People; This Excellent Government Being,  In

A Manner,  Dissolved By These Destructive Measures,  Confusion And

Civil Wars Ensued,  Which Some Very Wrongfully Ascribe To The

Fickle And Restless Temper Of The English."   Rapin's Preface To

His History Of England.

 

Hallam Says That Among The Saxons,  "The Royal Authority Was

Weak."   2 Middle Ages,  403.

 

But Although The King Himself Had So Little Authority,  That It

Cannot Be Supposed For A Moment That His Laws Were Regarded As

Imperative By The People,  It Has Nevertheless Been Claimed,  In

Modern Times,  By Some Who Seem Determined To Find Or Make A

Precedent For The Present Legislative Authority Of Parliament,

That His Laws Were Authoritative,  When Assented To By The Witena

- Gemote,  Or Assembly Of Wise Men   That Is,  The Bishops And

Barons. But This Assembly Evidently Had No Legislative Power ,

Whatever. The King Would Occasionally Invite The Bishops And

Barons To Meet Him For Consultation On Public Affairs,  Simply As

A Council,  And Not As A Legislative Body. Such As Saw Fit To

Attend,  Did So. If They Were Agreed Upon What Ought To Be Done,

The King Would Pass A Law Accordingly,  And The Barons And Bishops

Would Then Return And Inform The People Orally What Laws Had Been

Passed,  And Use Their Influence With Them To Induce Them To

Conform To The Law Of The King,  And The Recommendation Of The

Council. ' And The People No Doubt Were Much More Likely To

Accept A Law Of The King,  If It Had Been Approved By This

Council,  Than If It Had Not. But It Was Still Only A Law Of The

King,  Which They Obeyed Or Disregarded According To Their Own

Notions Of Expediency. The Numbers Who Usually Attended This

Council Were Too Small To Admit Of The Supposition That They Had

Any Legislative Authority Whatever,  To Impose Laws Upon The

People Against Their Will.

 

Lingard Says:

 

"It Was Necessary That The King Should Obtain The Assent Of These

(The Members O The Witena-Gemotes) To All Legislative Enactments;

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 Pg 50

Because,  Without Their Acquiescence And Support,  It Was

Impossible To Carry Them Into Execution. To Many Charters (Laws)

We Have The Signatures Of The Witan. They Seldom Exceed Thirty In

Number; They Never Amount To Sixty."   1 Lingard; 486.

 

It Is Ridiculous To Suppose That The Assent Of Such An Assembly

Gave Any Authority To The Laws Of The King,  Or Had Any Influence

In Securing Obedience To Them,  Otherwise Than By Way Of

Persuasion. If This Body Had Had Any Real Legislative Authority,

Such As Is Accorded To Legislative Bodies Of The Present Day,

They Would Have Made Themselves At Once The Most Conspicuous

Portion Of The Government,  And Would Have Left Behind Them

Abundant Evidence Of Their Power,  Instead Of The Evidence Simply

Of Their Assent To  A Few Laws Passed By The King.

 

More Than This. If This Body Had Had Any Real Legislative

Authority,  They Would Have Constituted An Aristocracy,  Having,  In

Conjunction With The King,  Absolute Power Over The People.

Assembling Voluntarily,  Merely On The Invitation Of The King;

Deputed By Nobody But Themselves; Representing Nobody But

Themselves; Responsible To Nobody But Themselves; Their

Legislative Authority,  If They Had Had Any,  Would Of Necessity

Have Made The Government The Government Of An Aristocracy

Merely,  And The People Slaves,  Of Course. And This Would

Necessarily Have Been The Picture That History Would Have

Given Us Of The Anglo-Saxon Government,  And Of Anglo-Saxon

Liberty.

 

The Fact That The People Had No Representation In This Assembly,

And The Further Fact That,  Through Their Juries Alone,  They

Nevertheless Maintained That Noble Freedom,  The Very Tradition Of

Which (After The Substance Of The Thing Itself Has Ceased To

Exist) Has Constituted The Greatest Pride And Glory Of The Nation

To This Day,  Prove That This Assembly Exercised No Authority

Which Juries Of The People Acknowledged,  Except At Their Own

Discretion. [4]

 

There Is Not A More Palpable Truth,  In The History Of The

Anglo-Saxon Government,  Than That Stated In The Introduction To

Gilbert's History Of The Common Pleas,  [5] Viz.. "That The

County Aud Hundred Courts," (To Which Should Have Been Added

The Other Courts In Which Juries Sat,  The Courts-Baron And

Court-Leet,) "In Those Times Were The Real And Only Parliaments

Of The Kingdom." And Why Were They The Real And Only Parliaments

Of The Kingdom? Solely Because,  As Will Be Hereafter Shown,  The

Juries In Those Courts Tried Causes On Their Intrinsic Merits,

According To Their