An Essay On The Trial By Jury, Lysander Spooner [chrysanthemum read aloud .TXT] 📗
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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 48Of 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 50Because, 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
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