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

The Realm,  There To

Remain,  And Shall Be Read To The People Twice Every Year.

 

"The Highest And Most Binding laws Are The Statutes Which Are

Established by Parliament; And By Authority Of That Highest Court

It Is Enacted (Only To Show Their Tender Care Of Magna Carta And

Carta De Foresta) That If Any Statute Be Made Contrary To The

Great Charter,  Or The Charter Of The Forest,  That Shall Be Holden

For None; By Which Words All Former Statutes Made Against Either

Of Those Charters Are Now Repealed; And The Nobles And Great

Officers Were To Be Sworn To The Observation Of Magna Charta And

Charta De Foresta.

Chapter 11 (Authority Of Magna Carta) Pg 192

 

"Magna Fuit Quondam Magnae Reverentia Chartae." (Great Was

Formerly The Reverence For Magna Carta.)   Coke'S Proem To 2

Inst.,  P. 1 To 7.

 

Coke Also Says,  "All Pretence Of Prerogative Against Magna Charta

Is Taken Away."   2 Inst.,  36.

 

He Also Says,  "That After This Parliament (52 Henry Iii.,  In

1267) Neither Magna Carta Nor Carta De Foresta Was Ever

Attempted to Be Impugned or Questioned."   2 Inst.,  102. [4]

 

To Give All The Evidence Of The Authority Of Magna Carta,  It

Would Be Necessary To Give The Constitutional History Of England

Since The Year 1215. This History Would Show That Magna Carta,

Although Continually Violated and Evaded,  Was Still Acknowledged

As Law By The Government,  And Was Held Up By The People As The

Great Standard And Proof Of Their Rights And Liberties. It Would

Show Also That The Judicial Tribunals,  Whenever It Suited their

Purposes To Do So,  Were In the Habit Of Referring to Magna Carta

As Authority,  In the Same Manner,  And With The Same Real Or

Pretended veneration,  With Which American Courts Now Refer To The

Constitution Of The United states,  Or The Constitutions Of The

States. And,  What Is Equally To The Point,  It Would Show That

These Same Tribunals,  The Mere Tools Of Kings And Parliaments,

Would Resort To The Same Artifices Of Assumption,  Precedent,

Construction,  And False Interpretation,  To Evade The Requirements

Of Magna Carta,  And To Emasculate It Of All Its Power For The

Preservation Of Liberty,  That Are Resorted to By American Courts

To Accomplish The Same Work On Our American Constitutions.

 

I Take It For Granted,  Therefore,  That If The Authority Of Magna

Carta Had Rested simply Upon Its Character As A Compact Between

The King and The People,  It Would Have Been Forever Binding upon

The King,  (That Is,  Upon The Government,  For The King was The

Government,) In his Legislative,  Judicial,  And Executive

Character; And That There Was No Constitutional Possibility Of

His Escaping from Its Restraints,  Unless The People Themselves

Should Freely Discharge Him From Them.

 

But The Authority Of Magna Carta Does Not Rest,  Either Wholly Or

Mainly,  Upon Its Character As A Compact. For Centuries Before The

Charter Was Granted,  Its Main Principles Constituted "The Law Of

The Land,"   The Fundamental And Constitutional Law Of The Realm,

Which The Kings Were Sworn To Maintain. And The Principal Benefit

Of The Charter Was,  That It Contained a Written Description And

Acknowledgment,  By The King himself,  Of What The Constitutional

Law Of The Kingdom Was,  Which His Coronation Oath Bound Him To

Observe. Previous To Magna Carta,  This Constitutional Law Rested

Mainly In precedents,  Customs,  And The Memories Of The People.

And If The King could But Make One Innovation Upon This Law,

Without Arousing resistance,  And Being compelled to Retreat From

His Usurpation,  He Would Cite That Innovation As A Precedent For

Another Act Of The Same Kind; Next,  Assert A Custom; And,

Chapter 11 (Authority Of Magna Carta) Pg 193

Finally,  Raise A Controversy As To What The Law Of The Land

Really Was. The Great Object Of The Barons And People,  In

Demanding from The King a Written Description And

Acknowledgment

Of The Law Of The Land,  Was To Put An End To All Disputes Of This

Kind,  And To Put It Out Of The Power Of The King to Plead Any

Misunderstanding of The Constitutional Law Of The Kingdom. And

The Charter,  No Doubt,  Accomplished very Much In this Way. After

Magna Carta,  It Required much More Audacity,  Cunning,  Or

Strength,  On The Part Of The King,  Than It Had Before,  To Invade

The People'S Liberties With Impunity. Still,  Magna Carta,  Like

All Other Written Constitutions,  Proved inadequate To The Full

Accomplishment Of Its Purpose; For When Did A Parchment Ever

Have

Power Adequately To Restrain A Government,  That Had Either

Cunning to Evade Its Requirements,  Or Strength To Overcome Those

Who Attempted its Defence? The Work Of Usurpation,  Therefore,

Though Seriously Checked,  Still Went On,  To A Great Extent,  After

Magna Carta. Innovations Upon The Law Of The Land Are Still Made

By The Government. One Innovation Was Cited as A Precedent;

Precedents Made Customs; And Customs Became Laws,  So Far As

Practice Was Concerned; Until The Government,  Composed of The

King,  The High Functionaries Of The Church,  The Nobility,  A House

Of Commons Representing the "Forty Shilling freeholders," And A

Dependent And Servile Judiciary,  All Acting in conspiracy Against

The Mass Of The People,  Became Practically Absolute,  As It Is At

This Day.

 

As Proof That Magna Carta Embraced little Else Than What Was

Previously Recognized as The Common Law,  Or Law Of The Land,  I

Repeat Some Authorities That Have Been Already Cited.

Crabbe Says,  "It Is Admitted on All Hands That It (Magna Carta)

Contains Nothing but What Was Confirmatory Of The Common Law

And

The Ancient Usages Of The Realm; And Is,  Properly Speaking,  Only

An Enlargement Of The Charter Of Henry I. And His Successors." 

Crabbe'S Hist. Of The Eng. Law,  P. 127.

 

Blackstone Says,  "It Is Agreed by All Our Historians That The

Great Charter Of King john Was,  For The Most Part,  Compiled from

The Ancient Customs Of The Realm,  Or The Laws Of Edward The

Confessor; By Which They Mean The Old Common Law Which Was

Established under Our Saxon Princes."   Blackstone'S Introd. To

The Charters. See Blackstone'S Law Tracts,  Oxford Ed.,  P. 289.

 

Coke Says,  " The Common Law Is The Most General And Ancient Law

Of The Realm... The Common Law Appeareth In the Statute Of Magna

Carta,  And Other Ancient Statutes,  (Which For The Most Part Are

Affirmations Of The Common Law,) In the Original Writs,  In

Judicial Records,  And In our Books Of Terms And Years."   1

Inst.,  115 B.

 

Coke Also Says,  "It (Magna Carta) Was For The Most Part

Declaratory Of The Principal Grounds Of The Fundamental Laws Of

Chapter 11 (Authority Of Magna Carta) Pg 194

England,  And For The Residue It Was Additional To Supply Some

Defects Of The Common Law... They (Magna Carta And Carta De

Foresta) Were,  For The Most Part,  But Declarations Of The Ancient

Common Laws Of England,  To The Observation And Keeping whereof

The King was Bound And Sworn."   Preface To 2 Inst.,  P. 3 And 5.

 

Hume Says,  "We May Now,  From The Tenor Of This Charter,  (Magna

Carta,) Conjecture What Those Laws Were Of King edward,  (The

Confessor,) Which The English Nation During so Many Generations

Still Desired,  With Such An Obstinate Perseverance,  To Have

Recalled and Established. They Were Chiefly These Latter Articles

Of Magna Carta; And The Barons Who,  At The Beginning of These

Commotions,  Demanded the Revival Of The Saxon Laws,

Undoubtedly

Thought That They Had Sufficiently Satisfied the People,  By

Procuring them This Concession,  Which Comprehended the Principal

Objects To Which They Had So Long Aspired."   Hume,  Ch. 11.

 

Edward The First Confessed that The Great Charter Was

Substantially Identical With The Common Law,  As Far As It Went,

When He Commanded his Justices To Allow "The Great Charter As The

Common Law," " In pleas Before Them,  And In judgment," As Has

Been Already Cited in this Chapter.   25 Edward I.,  Ch. 1,

(1297.)

 

In Conclusion Of This Chapter,  It May Be Safely Asserted that The

Veneration,  Attachment,  And Pride,  Which The English Nation,  For

More Than Six Centuries,  Have Felt Towards Magna Carta,  Are In

Their Nature Among The Most Irrefragable Of All Proofs That It

Was The Fundamental Law Of The Land,  And Constitutionally Binding

Upon The Government; For,  Otherwise,  It Would Have Been,  In their

Eyes,  An Unimportant And Worthless Thing. What Those Sentiments

Were I Will Use The Words Of Others To Describe,    The Words,

Too,  Of Men,  Who,  Like All Modern Authors Who Have Written On The

Same Topic,  Had Utterly Inadequate Ideas Of The True Character Of

The Instrument On Which They Lavished their Eulogiums.

 

Hume,  Speaking of The Great Charter And The Charter Of The

Forest,  As They Were Confirmed by Henry Iii.,  In 1217,  Says:"Thus

These Famous Charters Were Brought Nearly To The Shape In which

They Have Ever Since Stood; And They Were,  During many

Generations,  The Peculiar Favorites Of The English Nation,  And

Esteemed the Most Sacred rampart To National Liberty And

Independence. As They Secured the Rights Of All Orders Of Men,

They Were Anxiously Defended by All,  And Became The Basis,  In a

Manner,  Of The English Monarchy,  And A Kind Of Original Contract,

Which Both Limited the Authority Of The King and Ensured the

Conditional Allegiance Of His Subjects. Though Often Violated,

They Were Still Claimed by The Nobility And People; And,  As No

Precedents Were Supposed valid That Infringed them,  They Rather

Acquired than Lost Authority,  From The Frequent Attempts Made

Against Them In several Ages,  By Regal And Arbitrary Power." 

Hume,  Ch. 12.

 

Chapter 11 (Authority Of Magna Carta) Pg 195

Mackintosh Says,  "It Was Understood By The Simplest Of The

Unlettered age For Whom It Was Intended. It Was Remembered by

Them... For Almost Five Centuries It Was Appealed to As The

Decisive Authority On Behalf Of The People... To Have Produced

It,  To Have Preserved it,  To Have Matured it,  Constitute The

Immortal Claim Of England On The Esteem Of Mankind. Her Bacons

Arid Shakspeares,  Her