An Essay On The Trial By Jury, Lysander Spooner [ebook reader browser .txt] 📗

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:

 

"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

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 (Weakness Of The Regal Authority) Pg 55

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;

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

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 (Weakness Of The Regal Authority) Pg 56

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 Own Ideas Of Justice,  Irrespective Of The Laws

Agreed upon By Kings,  Priests,  And Barons; And Whatever

Principles They Uniformly,  Or Perhaps Generally,  Enforced,  And

None Others,  Became Practically The Law Of The Land As Matter Of

Course. [6]

 

Finally,  On This Point. Conclusive Proof That The Legislation Of

The King was Of Little Or No Authority,  Is Found In the Fact That

The Kings Enacted so Few Laws. If Their Laws Had Been Received as

Authoritative,  In the Manner That Legislative Enactments Are At

This Day,  They Would Have Been Making laws Continually. Yet The

Codes Of The Most Celebrated kings Are Very Small,  And Were

Little More Than Compilations Of Immemorial Customs. The Code Of

Alfred would Not Fill Twelve Pages Of The Statute Book Of

Massachusetts,  And Was Little Or Nothing else Than A Compilation

Of The Laws Of Moses,  And The Saxon Customs,  Evidently Collected

From Considerations Of Convenience,  Rather Than Enacted on The

Principle Of Authority. The Code Of Edward The Confessor Would

Not Fill Twenty Pages Of The Statute Book Of Massachusetts,  And,

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 1 (Weakness Of The Regal Authority) Pg 57

Says Blackstone,  "Seems To Have Been No More Than A New Edition,

Or Fresh Promulgation Of Alfred'S Code,  Or Dome-Book,  With Such

Additions And Improvements As The Experience Of A Century And A

Half Suggested."   1 Blackstone,  66. [7]

 

The Code Of Wiliiam The Conqueror [8] Would Fill Less Than Seven

Pages Of The Statute Book Of Massachusetts; And Most Of The Laws

Contained in it Are Taken From The Laws Of The Preceding kings,

And Especially Of Edward The Confessor (Whose Laws William

Swore To Observe); But Few Of His Own Being added.

 

The Codes Of The Other Saxon And Norman Kings Were,  As A General

Rule,  Less Voluminous Even Than These That Have Been Named; And

Probably Did Not Exceed them In originality. [9] The Norman

Princes,  From William The Conqueror To John,  I Think Without

Exception,  Bound Themselves,  And,  In order To Mqintain Their

Thrones,  Were Obliged to Bind Themselves,  To Observe The Ancient

Laws And Customs,  In other Words; The "Lex Terrae," Or "Common

Law" Of The Kingdom. Even Magna Carta Contains Hardly Anything

Other Than This Same "Common Law," With Some New Securities For

Its Observance. 

 

How Is This Abstinence From Legislation,  On The Part Of The

Ancient Kings,  To Be Accounted for,  Except On The Supposition

That The People Would Accept,  And Juries Enforce,  Few Or No New

Laws Enacted by Their Kings? Plainly It Can Be Accounted. For In

No Ether Way. In fact,  All History Informs Us That Anciently The

Attempts Of The Kings To Introduce Or Establish New Laws,  Met

With Determined resistance From The People,  And Generally

Resulted in failure "Nolumus Leges Angliae Mutari" (We Will That

The Laws Of England Be Not Changed,) Was A Determined principle

With The Anglo-Saxons,  From Which They Seldom Departed,  Up To

The Time Of Magna Carta,  And Indeed until Long After. [10]

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 2 (The Ancient Common Law Juries Were Mere Courts Of Conscience) Pg 58

But It Is In the Administration Of Justice,  Or Of Law,  That The

Freedom Or Subjection Of A People Is Tested. If This

Administration Be In accordance With The Arbitrary Will Of The

Legislator   That Is,  If His Will,  As It Appears In his Statutes,

Be The Highest Rule Of Decision Known To The Judicial Tribunals,  

The Government Is A Despotism,  And The People Are Slaves. If,  On

The Other Hand,  The Rule Of Decision Be These Principles Of

Natural Equity And Justice,  Which Constitute,  Or At Least Are

Embodied in,  The General Conscience Of Mankind,  The People