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

Miltons And Newtons,  With All The Truth

Which They Have Revealed,  And All The Generous Virtues Which They

Have Inspired,  Are Of Inferior Value When Compared with The

Subjection Of Men And Their Rulers To The Principles Of Justice;

If,  Indeed,  It Be Not More True That These Mighty Spirits Could

Not Have Been Formed except Under Equal Laws,  Nor Roused to Full

Activity Without The Influence Of That Spirit Which The Great

Charter Breathed over Their Forefathers."   Mackintosh'S Hist. Of

Eng.,  Ch. 3,  [8]

 

Of The Great Charter,  The Trial By Jury Is The Vital Part,  And

The Only Part That Places The Liberties Of The People In their

Own Keeping. Of This Blackstone Says:

 

"The Trial By Jury,  Or The Country,  Per Patriam,  Is Also That

Trial By The Peers Of Every Englishman,  Which,  As The Grand

Bulwark Of His Liberties,  Is Secured to Him By The Great Charter;

Nullus Liber Homo Capiatur,  Vel Imprisonetur,  Aut Exuletur,  Aut

Aliquo Modo Destruatur,  Nisi Per Legale Judicial Parium Suorum,

Vel Per Legem Terrae.

 

The Liberties Of England Cannot But Subsist So Long As This

Palladium Remains Sacred and Inviolate,  Not Only From All Open,

Attacks,  Which None Will Be So Hardy As To Make,  But Also From

All Secret Machinations Which May Sap And Undermine It." [9]

 

"The Trial By Jury Ever Has Been,  And I Trust Ever Will Be,

Looked upon As The Glory Of The English Law... It Is The Most

Transcendent Privilege Which Any Subject Can Enjoy Or Wish For,

That He Cannot Be Affected in his Property,  His Liberty,  Or His

Person,  But By The Unanimous Consent Of Twelve Of His Neighbors

And Equals."[10]

 

Hume Calls The Trial By Jury "An Institution Admirable In itself,

And The Best Calculated for The Preservation Of Liberty And The

Administration Of Justice,  That Ever Was Devised by The Wit Of

Man." [11]

 

An Old Book,  Called "English Liberties," Says:"English

Parliaments Have All Along Been Most Zealous For Preserving this

Great Jewel Of Liberty,  Trials By Juries Having no Less Than

Fifty-Eight Several Times,  Since The Norman Conquest,  Been

Established and Confirmed by The Legislative Power,  No One

Privilege Besides Having been Ever So Often Remembered in

Parliament."{12]

 

[1] Mackintosh'S Hist. Of Eng.,  Ch. 3. 45 Lardner'S Cab. Cyc.,

354.

Chapter 11 (Authority Of Magna Carta) Pg 196

 

[2] "Forty Shilling freeholders" Were Those "People Dwelling and

Resident In the Same Counties,  Whereof Every One Of Them Shall

Have Free Land Or Tenement To The Value Of Forty Shillings By The

Year At The Least Above All Charges." By Statute 8 Henry 6,  Ch.

7,  (1429,) These Freeholders Only Were Allowed to Vote For

Members Of Parliament From The Counties.

 

[3] He Probably Speaks In its Favor Only To Blind The Eyes Of The

People To The Frauds He Has Attempted upon Its True Meaning.

 

[4] It Will Be Noticed that Coke Calls These Confirmations Of The

Charter "Acts Of Parliament," Instead Of Acts Of The King alone.

This Needs Explanation.

 

It Was One Of Coke'S Ridiculous Pretences,  That Laws Anciently

Enacted by The King,  At The Request,  Or With The Consent,  Or By

The Advice,  Of His Parliament,  Was "An Act Of Parliament,"

Instead Of The Act Of The King. And In the Extracts Cited,  He

Carries This Idea So Far As To Pretend That The Various

Confirmations Of The Great Charter Were "Acts Of Parliament,"

Instead Of The Acts Of The Kings. He Might As Well Have Pretended

That The Original Grant Of The Charter Was An "Act Of Parliament;

"Because It Was Not Only Granted at The Request,  And With The

Consent,  And By The Advice,  But On The Compulsion Even,  Of Those

Who Commonly Constituted his Parliaments. Yet This Did Not Make

The Grant Of The Charter "An Act Of Parliament." It Was Simply An

Act Of The King.

 

The Object Of Coke,  In this Pretence,  Was To Furnish Some Color

For The Palpable False- Hood That The Legislative Authority,

Which Parliament Was Trying to Assume In his Own Day,  And Which

It Finally Succeeded in obtaining,  Had A Precedent In the Ancient

Constitution Of The Kingdom.

 

There Would Be As Much Reason In saying that,  Because The Ancient

Kings Were In the Habit Of Passing laws In special Answer To The

Petitions Of Their Subjects,  Therefore Those Petitioners Were A

Part Of The Legislative Power Of The Kingdom.

 

One Great Objection To This Argument Of Coke,  For The Legislative

Authority Of The Ancient Parliaments,  Is That A Very Large 

Probably Much The Larger   Number Of Legislative Acts Were Done

Without The Advice,  Consent,  Request,  Or Even Presence,  Of A

Parliament. Not Only Were Many Formal Statutes Passed without

Any Mention Of The Consent Or Advice Of Parliament,  But A Simple

Order Of The King in council,  Or A Simple Proclamation,  Writ,  Or

Letter Under Seal,  Issued by His Command,  Had The Same Force As

What Coke Calls "An Act Of Parliament." And This Practice

Continued,  To A Considerable Extent At Least,  Down To Coke'S Own

Time.

 

The Kings Were Always In the Habit Of Consulting their

Parliaments,  More Or Less,  In regard To Matters Of Legislation,   

Chapter 11 (Authority Of Magna Carta) Pg 197

Not Because Their Consent Was Constitutionally Necessary,  But In

Order To Make Influence In favor Of Their Laws,  And Thus Induce

The People To Observe Them,  And The Juries To Enforce Them.

The General Duties Of The Ancient Parliaments Were Not

Legislative,  But Judicial,  As Will Be Shown More Fully Hereafter.

The People Were Not Represented in the Parliaments At The Time Of

Magna Carta,  But Only The Archbishops,  Bishops,  Earls,  Barons,

And Knights; So That Little Or Nothing would Have Been Gained for

Liberty By Coke'S Idea That Parliament Had A Legislative Power.

He Would Only Have Substituted an Aristocracy For A King. Even

After The Commons Were Represented in parliament,  They For Some

Centuries Appeared only As Petitioners,  Except In the Matter Of

Taxation,  When Their Consent Was Asked. And Almost The Only

Source Of Their Influence On Legislation Was This: That They

Would Sometimes Refuse Their Consent To The Taxation,  Unless The

King would Pass Such Laws As They Petitioned for; Or,  As Would

Seem To Have Been Much More Frequently The Case,  Unless He Would

Abolish Such Laws And Practices As They Remonstrated against.

The Influence,  Or Power Of Parliament,  And Especially Of The

Commons,  In the General Legislation Of The Country,  Was A Thing

Of Slow Growth,  Having its Origin In a Device Of The King to Get

Money Contrary To Law,  (As Will Be Seen In the Next Volume,) And

Not At All A Part Of The Constitution Of The Kingdom,  Nor Having

Its Foundation In the Consent Of The People. The Power,  As At

Present Exercised,  Was Not Fully Established until 1688,  (Near

Five Hundred years After Magna Carta,) When The House Of

Commons (Falsely So Called) Had Acquired such Influence As The

Representative,  Not Of The People,  But Of The Wealth,  Of The

Nation,  That They Compelled,  The King to Discard The Oath Fixed

By The Constitution Of The Kingdom; (Which Oath Has Been Already

Given In a Former Chapter,  [5] And Was,  In substance,  To Preserve

And Execute The Common Law,  The Law Of The Land,    Or,  In the

Words Of The Oath,  "The Just Laws And Customs Which The Common

People Had Chosen;") And To Swear That He Would "Govern The

People Of This Kingdom Of England,  And The Dominions Thereto

Belonging,  Accordingto The Statutes In parliament Agreed on,  And

The Laws And Customs Of The Same." [6]

 

The Passage And Enforcement Of This Statute,  And The Assumption

Of This Oath By The King,  Were Plain Violations Of The English

Constitution,  Inasmuch As They Abolished,  So Far As Such An Oath

Could Abolish,  The Legislative Power Of The King,  And Also "Those

Just Laws And Customs Which The Common People (Through Their

Juries) Had Chosen," And Substituted the Will Of Parliament In

Their Stead.

 

Coke Was A Great Advocate For The Legislative Power Of

Parliament,  As A Means Of Restraining the Power Of The King. As

He Denied all Power To Juries To Decide Upon The Obligation Of

Laws,  And As He Held That The Legislative Power Was "So

Transcendent And Absolute As (That) It Cannot Be Confined,  Either

For Causes Or Persons,  Within Any Bounds," [7] He Was Perhaps

Honest In holding that It Was Safer To Trust This Terrific Power

In The Hands Of Parliament,  Than In the Hands Of The King. His

Chapter 11 (Authority Of Magna Carta) Pg 198

Error Consisted in holding that Either The King or Parliament Had

Any Such Power,  Or That They Had Any Power At All To Pass Laws

That Should Be Binding upon A Jury.

 

These Declarations Of Coke,  That The Charter Was Confirmed by

Thirty-Two "Acts Of Parliament," Have A Mischievous Bearing in

Another Respect. They Tend To Weaken The Authority Of The

Charter,  By Conveying the Impression That The Charter Itself

Might Be Abolished by "Act Of Parliament." Coke Himself Admits

That It Could Not Be Revoked or Rescinded by The King; For He

Says,  "All Pretence Of Prerogative Against Magna Carta Is Taken

Away." (2 Inst.,  36.)

 

He Knew Perfectly Well,  And The Whole English Nation Knew,  That

The King could Not Lawfully Infringe Magna Carta. Magna Carta,

Therefore,  Made It Impossible That Absolute Power Could Ever Be

Practically Established in england,  In the Hands Of The King.

Hence,  As Coke Was An Advocate For Absolute Power,    That Is,  For

A Legislative Power "So Transcendent And Absolute As (That) It

Cannot,  Be Confined,  Either For Causes Or Persons,  Within Any

Bounds,"   There Was No Alternative For Him But To Vest This

Absolute Power In parliament. Had He Not Vested it In parliament,

He Would Have Been Obliged to Abjure It Altogether,  And To

Confess That The People,  Through Their Juries,  Had The Right To

Judge Of The Obligation Of All Legislation Whatsoever; In other

Words,  That They Had The Right To Confine The Government Within

The Limits Of "Those Just Laws And Customs Which The Common

People (Acting as Jurors) Had Chosen." True To His Instincts,  As

A Judge,  And As A Tyrant,  He Assumed that This Absolute Power Was

Vested in the Hands Of Parliament.

 

But The Truth Was That,  As By The English Constitution Parliament

Had No Authority At All For General Legislation,  It Could No More

Confirm,  Than It Could Abolish,  Magna Carta.

 

These Thirty-Two Confirmations Of Magna Carta,  Which Coke

Speaks Of As "Acts Of Parliament," Were Merely Acts Of The King. The

Parliaments,  Indeed,  By Refusing to Grant Him Money,  Except,  On

That Condition,  And Otherwise,  Had Contributed to Oblige Him To

Make The Confirmations; Just As They Had Helped to Oblige Him By

Arms