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| Joined: | Mon Nov 21st, 2005 |
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I read all that and find it wanting. What "it" wants, perhaps, is some history on the subject of Public Opinion - the prince formerly known as Common Law.
http://www.lysanderspooner.org/bib_new.htm
My perusal of the above site, with all those words jumbled together into something resembling order, has so far been eye opening, to say the least, from my individual perspective, a coming of age perhaps, new discoveries even, and having not finished the chore of reading that site, yet, the relevant quotes that follow may not be the most relevant quotes available in response to the subject of Public Opinion a.k.a. Common Law.
For more than six hundred years --- that is, since Magna Carta, in 1215 --- there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.
Unless such be the right and duty of jurors, it is plain that, instead of juries being a “palladium of liberty” --- a barrier against the tyranny and oppression of the government --- they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.
But for their right to judge of the law, and the justice of the law, juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them [*6] to convict on any evidence whatever that it pleases to offer them.
That the rights and duties of jurors must necessarily be such as are here claimed for them, will be evident when it is considered what the trial by jury is, and what is its object.
“The trial by jury,” then, is a “trial by the country” ---that is by the people as distinguished from a trial the government.
It was anciently called “trial per pais” that is, “trial by the country.” And now, in every criminal trial, the jury are told that the accused “has, for trial, put himself upon the country; which country you (the jury) are.”
The object of this trial “by the country,” or by the people, in preference to a trial by the government, is to guard against every species of oppression by the government. In order to effect this end, it is indispensable that the people, or “the country,” judge of and determine their own liberties against the government; instead of the government’s judging of and determining its own powers over the people. How is it possible that juries can do anything to protect the liberties of the people against the government; if they are not allowed to determine what those liberties are?
Any government, that is its own judge of, and determines authoritatively for the people, what are its own powers over the people, is an absolute government of course. It has all the powers that it chooses to exercise. There is no other --- or at least no more accurate --- definition of a despotism than this.
On the other hand, any people, that judge of, and determine authoritatively for the government, what are their own liberties against the government, of course retain all the liberties they wish to enjoy. And this is freedom. At least, it is freedom to them; because, although it may be theoretically imperfect, it, nevertheless, corresponds to their highest notions of freedom.
I really did try to cut out as much superfluous bullshit as possible in my chore to cut and paste relevant stuff. The sound bite is huge none-the-less.
I can try to summarize:
Despots wield power.
One power can oppose despotic power.
Let the winner prevail.
What is that opposing power standing in the way of absolute despotic power?
"Trial by the Country"
The trial continues to this day.
Who is winning?
Has 'the country' lost its power?
Has 'the country' lost its capacity to identify the one and only thing that stands in the way of absolute despotism?
What is this stuff called "Common Law"?
It may be suggested that "Common Law" is the current results of the trial currently being conducted by 'the country'.
Common Law was once a principle based upon equity.
Like this:
Hume says:
“The government of the Germans, and that of all the northern nations, who established themselves on the ruins of Rome, was always extremely free; and those fierce people, accustomed to independence and inured to arms, were more guided by persuasion, than authority, in the submission which they paid to their princes. The military despotism, which had taken place in the Roman empire, and which, previously to the irruption of those conquerors, had sunk the genius of men, and destroyed every noble principle of science and virtue, was unable to resist the vigorous efforts of a free people, and Europe, as from a new epoch, rekindled her ancient spirit, and shook off the base servitude to arbitrary will and authority under which she had so long labored. The free constitutions then established, however impaired by the encroachments of succeeding princes, still preserve an air of independence and legal administration, which distinguished the European nations; and if that part of the globe maintain sentiments [*53] of liberty, honor, equity, and valor, superior to the rest of mankind, it owes these advantages chiefly to the seeds implanted by those generous barbarians.
And I am guilty of grinding my personal axe, as everyone may do from time to time, that being the case of equity as a means to a desired end.
Equity was once a common word with a common meaning as a result of people practicing common sense. Once upon a time; a public appraisal of equity became a popular fad. Public Opinion concerning equity, at that time, was, perhaps, something good; worthy of high public esteem.
Equity was once being, at least in part, a parcel to the law of the land; at that time.
Who is winning now?