Yet that idea has been an entire delusion, unless the jury have had the right to judge of the justice of the laws they were called on to enforce.
Lysander Spooner
The Public Record
Lysander Spooner was an American abolitionist, entrepreneur, lawyer, essayist, natural rights legal theorist, pamphleteer, political philosopher, and writer often associated with the Boston anarchist tradition.
gutenberg.org
The language of the Great Charter establishes the same point that is established by its history, viz., that it is the right and duty of the jury to judge of the justice of the laws.
That is, "The body of a freeman shall not be arrested, nor imprisoned, nor disseized, nor outlawed, nor exiled, nor in any manner destroyed, nor shall the king proceed or send (any one) against him, WITH FORCE, unless by the judgment of…
The evidence is therefore conclusive that the phrase per judicium parian suorum means according to the sentence of his peers; thus implying hat the jury, and not the government, are to fix the sentence.
Pecuniary punishments were the most common punishments at that day, and the foregoing provisions of Magna Carta show that the amount of those punishments was to be fixed by the jury.
Fines went to the king, and were a source of revenue; and if the amounts of the fines had been left to be fixed by the king, he would have had a pecuniary temptation to impose unreasonable and oppressive ones.
If it were left to the king to fix the punishment, he might often have motives to inflict cruel and oppressive ones.
If the term legem terraehad included laws enacted by the king himself, the whole chapter of Magna Carta, now under discussion, would have amounted to nothing as a protection to liberty; because it would have imposed no restraint whatever…
This chapter of Magna Carta would, therefore, have imposed not the slightest restraint upon the power of the king, or afforded the slightest protection to the liberties of the people, if the laws of the king had been embraced in theterm…
But if legem terrae was the common law, which the king was sworn to maintain, then a real restriction was laid upon his power, and a real guaranty given to the people for their liberties.
For all practical puposes of the present day, therefore, it may be asserted that Magna Carta allows no trial whatever but trial by jury.
If the authority be vested in the government, the governmnt is absolute, and the people have no liberties except such as the government sees fit to indulge them with.