|
"Whereas
before this time the peers of the land have been arrested and imprisoned, and their
temporalities, lands, and teneiments, goods and cattels, asseized in the king's hands, and
some put to death without judgment of their peers: It is accorded and assented, that no
peer of the land, officer, nor other, because of his office, nor of things touching his
office, nor by other cause, shall be brought in judgment to lose his temporalities, lands,
tenements, goods and cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor
forejudged, nor put to answer, nor be judged, but by award
(sentence)
of the said peers
in Parliament." –
15 Edward III., st.
1, sec. 2. |
Section 4, of the same statute provides,
"That in every Parliament, at the third day of every Parliament. the king shall take
in his hands the offices of all the ministers aforesaid," (that is, "the
chancellor, treasurer, barons, and chancellor of the exchequer, the justices of the one
bench and of the other, justices assigned in the country, steward and chamberlain of the
king's house, keeper of the privy seal, treasurer of the wardrobe, controllers, and they
that be chief deputed to abide nigh the king's son, Duke of Cornwall,") "and so
they shall abide four or five days; except the offices of justices of the one place or the
other, justices assigned, barons of exchequer; so always that they and all other ministers
be put to answer to every complaint; and if default be found in any of the said ministers,
by complaint or other manner, and of that attainted in Parliament, he shall be punished by
judgment of the peers, and put out of his office, and another convenient put in his place.
And upon the same our said sovereign lord the king shall do (cause) to be pronounced and
made execution without delay,
according to the
judgment (sentence)
of the said peers in the
Parliament."
|
|
Here is an admission that the peers were to
fix the sentence, or judgment, and the king promises to make execution
"according to" that sentence.
|
|
And this appears to be the law, under
which peers of the realm and the great officers of the crown were tried and sentenced, for
four hundred years after its passage, and, for aught I know, until this day.
|
| |
| |
| |
| 94 |
|
The first case given in Hargrave's collection of English State
Trials, is that of
Alexander Nevil, Archbishop of York,
Robert Vere,
Duke of Ireland; Michael de la Pole,
Earl
of Suffolk, and
Robert Tresilian,
Lord Chief Justice of England, with several others,
convicted of treason, before "the Lords of Parliament," in 1388. The sentences
in these cases were adjudged by the "Lords of Parliament," in the following
terms, as they are reported.
|
| "Wherefore the said
Lords of Parliament,
there
present, as judges in Parliament, in this case,
by assent of the king, pronounced their sentence,
and did adjudge the said archbishop, duke, and earl, with Robert
Tresilian, so appealed, as aforesaid, to be guilty, and convicted of treason, and to be
drawn and hanged, as traitors and enemies to the king and kingdom; and that their heirs
should be disinherited forever, and their lands and tenements, goods and chattels,
forfeited to the king, and that the temporalities of the Archbishop of York should be
taken into the king's hands."
|
| Also, in the same case, Sir
John Holt, Sir William Burgh, Sir
John Cary, Sir Roger Fulthorpe, and John Locton, "were
by the lords temporal, by the assent of the king,
adjudged to be drawn and hanged, as traitors, their heirs disinherited,
and their lands and tenements, goods and chattels, to be forfeited to the king."
|
| Also, in the same case,
John Blake,
"of council
for the king," and
Thomas Uske, under sheriff of Middlesex, having been convicted of treason, "The lords awarded, by assent of the king,
that they should both be hanged and drawn as traitors, as
open enemies to the king and kingdom, and their heirs disinherited forever, and their
lands and tenements, goods and chattels, forfeited to the king."
|
| Also,
"Simon
Burleigh,
the king's chamberlain," being
convicted of treason,
"by joint consent of
the king and the lords,
sentence was
pronounced against the said Simon Burleigh, that he should be drawn from the town to
Tyburn, and there be hanged till he be dead, and then have his head struck from his
body."
|
| Also,
"John
Beauchamp,
steward of the household to the king, James Beroverse, and John Salisbury;
knights, gentlemen of the privy chamber,
were in
like manner condemned." – 1 Hargrave's State Trials, first case. |
|
Here the sentences were all fixed by the
peers,
with the assent of the king.
But that the king should be consulted, and his assent
obtained to the sentence pronounced by the peers, does not imply any deficiency of power
on their part to fix the sentence independently of the king. There are obvious reasons why
they might choose to consult the king, and obtain his approbation of the sentence they
were about to impose, without supposing any legal necessity for their so doing.
|
| |
| |
| |
| 95 |
|
So far as we can gather from the reports of state trials, peers
of the realm were usually sentenced by those who tried them,
with the assent of the king.
But in some instances no mention is made of the assent of the king, as in
the case of "Lionel, Earl of Middlesex, Lord High Treasurer of England," in
1624, (four hundred years after Magna Carta,) where the sentence was as follows:
|
|
"This High Court of Parliament doth adjudge, that Lionel,
Earl of Middlesex, now Lord Treasurer of England, shall lose all his offices which he
holds in this kingdom, and shall, hereafter, be made incapable of any office, place, or
employment in the state and commonwealth. That he shall be imprisoned in the tower of
London, during the king's pleasure. That he shall pay unto our sovereign lord the king a
fine of 50,000 pounds. That he shall never sit in Parliament any more, and that he shall
never come within the verge of the court." –
2 Howell's Stale Trials, 1250. |
|
Here was a peer of the realm, and a minister
of the king, of the highest grade; and if it were ever
necessary
to obtain the
assent of the king to sentences pronounced by the peers, it would unquestionably have been
obtained in this instance, and his assent would have appeared in the sentence.
|
| Lord Bacon
was sentenced by the House of
Lords, (l620,)
no mention being made of the
assent of the king.
The sentence is in
these words:
|
|
"And, therefore, this High Court doth adjudge, That the Lord
Viscount St. Albans, Lord Chancellor of England, shall undergo fine and ransom of 40,000
pounds. That he shall be imprisoned in the tower during the king's pleasure. That he shall
forever be incapable of any office, place, or employment in the state or commonwealth.
That he shall never sit in Parliament, nor come within the verge of the court."
|
| |
| |
| |
| 96 |
|
And when it was demanded of him, before sentence, whether it were
his hand that was subscribed to his confession, and whether he would stand to it; he made
the following answer, which implies that the
lords
were the ones to determine his
sentence.
|
| "My lords, it is my act, my hand, my heart.
I beseech your lordships to be merciful to a
broken reed." – 1 Hargrave's State Trials, 886 – 7. |
The sentence against Charles the First,
(1648,) after reciting the grounds of his condemnation, concludes in this form:
" For all which treasons and crimes,
this
court doth adjudge,
that he, the said
Charles Stuart, as a tyrant, traitor, murderer, and public enemy to the good people of
this nation, shall be put to death by the severing his head from his body."
|
The report then adds:
"This sentence being read, the president (of the court) spake as followeth: 'This
sentence now read and published, is the act, sentence, judgment and resolution of the
whole court.' " –
1 Hargrave's
State Trials, 1037. |
|
Unless it had been the received "law of the land"
that those who tried a man should fix his sentence, it would have required
an act of Parliament to fix the sentence of Charles, and his sentence would have been
declared to be
"the sentence of the
law,"
instead of
"the act, sentence, judgment, and resolution of the court." |
|
But the report of the proceedings in
"the trial of Thomas, Earl of Macclesfield, Lord High Chancellor of Great Britain,
before the House of Lords, for high crimes and misdemeanors in the execution of his
office," in 1725, is so full on this point, and shows so clearly that it rested
wholly with the lords to fix the sentence, and that the assent of the king was wholly
unnecessary, that I give the report somewhat at length.
|
| After being found guilty,
the earl addressed
the
lords, for a mitigation of sentence,
as follows: |
|
" 'I am now to expect your lordships' judgment; and I hope
that you will be pleased to consider that I have suffered no small matter already in the
trial, in the expense I have been at, the fatigue, and what I have suffered otherways. * *
I have paid back 10,800 pounds of the money already; I have lost my office; I have
undergone the censure of both houses of Parliament, which is in itself a severe
punishment,' " &c., &c.
|
| |
| |
| |
| 97 |
| On being interrupted, he proceeded: |
| " 'My lords, I submit whether this be not proper
in mitigation of your lordships' sentence;
but whether it be or not, I leave myself to your lordships'
justice and mercy; I am sure neither of them will be wanting, and I entirely submit.' * *
*
|
|
"Then the said earl, as also the managers, were directed to
withdraw; and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be committed
to the custody of the gentleman usher of the black rod; and then proceeded to the
consideration of what
judgment," (that is, sentence, for he had already been found guilty,
) "to give
upon the impeachment against the said earl."
|
|
"The next day, the Commons, with their speaker, being
present at the bar of the House (of Lords), * * * the speaker of the House of Commons said
as follows:
|
|
" ' My Lords, the knights, citizens, and burgesses in
Parliament assembled, in the name of themselves, and of all the commons of Great Britain,
did at this bar impeach Thomas, Earl of Macclesfield, of high crimes and misdemeanors, and
did exhibit articles of impeachment against him, and have made good their charge. I do,
therefore, in the name of the knights, citizens, and burgesses, in Parliament assembled,
and of all the commons of Great Britain, demand
judgment (sentence)
of
your lordships against Thomas, Earl of Macclesfield, for the said high crimes and
misdemeanors.'
|
"Then the Lord Chief Justice King, Speaker of the House of
Lords, said:
'Mr. Speaker, the Lords are now ready to proceed to judgment in the case by you mentioned.
|
|
" ' Thomas, Earl of Macclesfielg, the Lords have unanimously
found you guilty of high crimes and misdemeanors, charged on you by the impeachment of the
House of Commons, and do now, according to law, proceed to
judgment
against you, which
I am ordered to pronounce. Their lordships'
judgment
is, and this high court doth adjudge,
that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty thousand pounds unto
our sovereign lord the king; and that you shall be imprisoned in the tower of London, and
there kept in safe custody, until yon shall pay the said fine.' " –
6 Hargrave's State Trials, 762 – 3 – 4. |
|
This case shows that the principle of Magna
Carta, that a man should be
sentenced
only by his peers, was in force, and acted upon as law, in
England, so lately as 1725, (five hundred years after Magna Carta,) so far as it applied
to a
peer of the realm. |
| |
| |
| |
| 98 |
| |
|
But the same principle, on this point, that
applies to a peer of the realm, applies to every freeman. The only difference between the
two is, that the peers of the realm have had influence enough to preserve their
constitutional rights; while the constitutional rights of the people have been trampled
upon and rendered obsolete by the usurpation and corruption of the government and the
courts.
|
| |
| |
| SECTION V
|
| The Oaths of Judges
|
|
|
|
As further proof that the legislation of the
king, whether enacted with or without the assent and advice of his parliaments, was of no
authority unless it were consistent with the
common
law,
and unless juries and judges saw fit
to enforce it, it may be mentioned that it is probable that no judge in England was ever
sworn to observe the laws enacted either by the king alone, or by the king with the advice
and assent of parliament.
|
| The judges were sworn to
"do equal law, and execution of right, to all the king's
subjects, rich and poor, without having regard to any person;"
and that they will
"deny no man common right;"
[5]
but they were not sworn to obey
or execute any statutes of the king, or of the king and parliament. Indeed, they are
virtually sworn not to obey any statutes that are against
"common right,"
or
contrary to
"the common law," or
"law of the
land;"
but to "certify the king
thereof" – that is, notify him that his statutes are against the common law;
– and then proceed to execute the
common
law,
notwithstanding such legislation to the
contrary. The words of the oath on this point are these:
|
|
"That ye deny no man common right by (virtue of) the king's letters, nor none
other man's, nor for none other cause; and in case any letters come to you contrary to the
law,
(that is, the common law, as will be seen
on reference to the entire oath given in the note,)
that ye do nothing by such letters, but certify the king thereof, and
proceed to execute the law,
(that is, the common
law,)
notwithstanding the same letters."
|
| |
| |
|
[5] "Common right" was the
common law. 1 Coke's Inst. 142 a.
2 do. 55, 6.
|
| |
| |
| |
| 99 |
|
Where it is
considered that the king was the sole legislative power, and that he exercised this power,
to a great extent, by orders in council, and by writs and "letters" addressed
oftentimes to some sheriff, or other person, and that his commands, when communicated to
his justices, or any other person,
"by
letters,"
or writs, under seal,
had as much legal
authority as laws promulgated in any other form whatever, it will be seen that this oath
of the justices
absolutely required that they disregard any legislation that was contrary to "common right," or "the common law,"
and notify the king that it was contrary to common right, or the
common law, and then proceed to execute the common law, notwithstanding such legislation.
[6] |
|
If
there could be any doubt that such was the meaning of this oath, that doubt would be
removed by a statute passed by the king two years afterwards, which fully explains this
oath, as follows:
|
|
"Edward, by the Grace of God, &c., to the Sheriff of
Stafford, greeting: Because that by divers complaints made to us, we have perceived that
the Law of the Land, which we by our oath are bound to
maintain,
is the less well kept, and the
execution of the same disturbed many times by maintenance and procurement, as well in the
court as in the country;
|
| |
| |
[6] The oath of the justices is in these words:
"Ye shall swear, that well and lawfully ye shall serve our lord the king
and his people
, in the office of justice,
and that lawfully ye shall counsel the king in his business, and that ye shall not counsel
nor assent to anything which may turn him in damage or disherison in any manner, way, or
color. And that ye shall not know the damage or disherison of him, whereof ye shall not
cause him to be warned by yourself, or by other;
and
that ye shall do equal law and execution of right to all his subjects, rich and poor,
without having regard to any person.
And that ye take not by
yourself, or by other, privily nor apertly, gift nor reward of gold nor silver, nor of any
other thing that may turn to your profit, unless it be meat or drink, and that of small
value, of any man that shall have any plea or process hanging before you, as long as the
same process shall be so hanging, nor after for the same cause. And that ye take no fee,
as long as ye shall be justice, nor robe of any man great or small, but of the king
himself. And that ye give none advice or counsel to no man great or small, in no case
where the king is party. And in case that any, of what estate or condition they be, come
before you in your sessions with force and arms, or otherwise against the peace, or
against the form of the statute thereof made,
to
disturb execution of the common law,"
[mark the term, "common law
,") "or to menace
the people that they may not pursue the law, that ye shalt cause their bodies to be
arrested and put in prison; and in case they be such that ye cannot arrest them, that ye
certify the king of their names, and of their misprision, hastily, so that he may thereof
ordain a convenable remedy. And that ye by yourself, nor by other, privily nor apertly,
maintain any plea or quarrel hanging in the king's court, or elsewhere in the country.
And that ye deny no man common right by the king's letters, nor
none other man's, nor for none other cause, and in case any letters come to you contrary
to the law,'" (that is, the "common law " before mentioned,) "that ye
do nothing by such letters, but certify the king thereof, and proceed to execute the
law," (the "common law" before mentioned,) "notwithstanding the same
letters.
And that ye shall do and procure the profit of the king and
of his crown, with all things where ye may reasonably do the same. And in case ye be from
henceforth found in default in any of the points aforesaid, ye shall be at the king's will
of body, lands, and goods, thereof to be done as shall please him, as God you help and all
saints." –
18 Edward III., st. 4. (1344.)
|
| |
| |
| |
| 100 |
|
we greatly moved of conscience in this matter, and for this cause
desiring as much for the pleasure of God, and ease and quietness of our subjects, as to
save our conscience, and for to save and keep our said oath, by the assent of the great
men and other wise men of our council, we have ordained these things following:
|
|
"First, we have commanded all our justices, that they shall
from henceforth
do equal law and execution
of right
to all our subjects, rich and poor,
without having regard to any person,
and without
omitting to do right for any letters or commandment which may come to them from us, or
from any other, or by any other cause. And if that any letters, writs, or commandments
come to the justices, or to other deputed to do law and right according to the usage of
the realm, in disturbance of the law, or of the execution of the same, or of right to the
parties, the justices and other aforesaid shall proceed and hold their courts and
processes, where the pleas and matters be depending before them, as if no such letters,
writs, or commandments were come to them; and they shall certify us and our council of
such commandments which be contrary to the law,
(that
is, "the law of the land," or common law,)
as afore is said." [7]
And to the intent that our
justices, shall do even right to all people in the manner aforesaid, without more favor
showing to one than to another, we have ordained and caused our said justices to be sworn,
that they shall not from henceforth, as long as they shall be in the office of justice,
take fee nor robe of any man, but of ourself, and that they shall take no gift nor reward
by themselves, nor by other, privily nor apertly, of any man that hath to do before them
by any way, except meat and drink, and that of small value: and that they shall give no
counsel to great men or small, in case where we be party, or which do or may touch us in
any point, upon pain to be at our will, body, lands, and goods, to do thereof as shall
please us, in case they do contrary. And for this cause we have increased the fees of the
same, our justices, in such manner as it ought reasonably to suffice them." –
20 Edward III., ch. l. (1346.)
|
| |
| |
|
[7] That the terms "Law" and "Right," as used in this statute, mean the
common
law
, is shown by the preamble, which declares the motive of the
statute to be that
"the Law of the Land, (the
common law,) which we (the king) by our oath are bound to maintain,"
may be the better kept, &.
|
| |
| |
| |
| 101 |
| |
| |
| Other statutes of similar tenor have been enacted as follows: |
|
"It is accorded and established, that it shall not be
commanded by the great seal, nor the little seal, to disturb or delay
common right;
and
though such commandments do come, the justices shall not therefore leave (omit) to do
right in any point." –
St. 2 Edward
III., ch. 8. (1328.) |
|
"That by commandment of the great seal,
or privy seal, no point of this statute shall be put in delay; nor that the justices of
whatsoever place it be shall let (omit) to do the
common law,
by commandment, which shall come to
them under the great seal, or the privy seal." –
14 Edward III, st. 1, ch. 14. (1340.) |
|
"It is ordained and established, that
neither letters of the signet, nor of the king's privy seal, shall be from henceforth sent
in damage or prejudice of the realm, nor in disturbance of the law" (the common law).
–
11 Richard II., ch. 10. (1387.) |
|
It is perfectly apparent from these
statutes, and from the oath administered to the justices, that it was a matter freely
confessed by the king himself, that his statutes were of no validity, if contrary to the
common law, or "common right."
|
|
The oath of the justices, before given, is, I presume, the same
that has been administered to judges in England from the day when it was first prescribed
to them, (1344,) until now. I do not find from the English statutes that the oath has ever
been changed. The Essay on Grand Juries, before referred to, and supposed to have been
written by
Lord Somers,
mentions this oath (page 73) as being still administered to
judges, that is, in the time of Charles II., more than three hundred years after the oath
was first ordained.
|
|
If the oath has never been changed, it follows that judges have
not only never been sworn to support any statutes whatever of the king, or of parliament,
but that, for five hundred years past, they actually have been sworn to treat as invalid
all statutes that were contrary to the common law.
|
| |
| |
|
|
|
SECTION VI.
|
| The Coronation Oath.
|
|
|
|
That the legislation of the king was of no
authority over a jury, is further proved by the oath taken by the kings at their
coronation. This oath seems to have been substantially the same, from the time of the
Saxon
kings,
down to the seventeenth century, as will be seen from the authorities hereafter given.
|
| The purport of the oath is, that the king swears
to maintain the law of the land – that is,
the common law.
In other words, he swears
"to concede and preserve to the English people the laws
and customs conceded to them by the ancient, just, and pious English kings, * * and
especially the laws, customs, and liberties conceded to the clergy and people by the
illustrious king Edward;" * * and "the just laws and customs which the common
people have chosen, (quas vulgus elegit)." |
|
These are the same laws and customs which
were called by the general name of
"the law
of the land,"
or "the common law,"
and,
with some slight additions, were embodied in
Magna Carta. |
|
This oath not only forbids the king to
enact any statutes contrary to the common law, but it proves that his statutes could be of
no authority over the consciences of a jury; since, as has already been sufficiently
shown, it was one part of this very common law itself, – that is, of the ancient
"laws, customs, and liberties," mentioned in the oath, – that juries should
judge of all questions that came before them, according to their own consciences,
independently of the legislation of the king.
|
| |
| |
| |
| 103 |
|
It was impossible that this right of the jury could subsist
consistently with any right, on the part of the king, to impose any authoritative
legislation upon them. His oath, therefore, to maintain the law of the land, or the
ancient "laws, customs, and liberties," was equivalent to an oath that he would
never
assume
to impose laws upon juries, as imperative rules of decision, or take from
them the right to try all cases according to their own consciences. It is also an
admission that he had no constitutional power to do so, if he should ever desire it. This
oath, then, is conclusive proof that his legislation was of no authority with a jury, and
that they were under no obligation whatever to enforce it, unless it coincided with their
own ideas of justice.
|
|
The ancient coronation oath is printed with the Statutes of the
Realm, vol. i., p. 168, and is as follows: [8]
|
|
TRANSLATION.
|
| "Form of the Oath of the King of England, on his Coronation. |
|
(The Archbishop of Canterbury, to whom,
of right and custom of the Church of Canterbury, ancient and approved, it pertains to
anoint and crown the kings of England, on the day of the coronation of the king, and
before the king is crowned, shall propound the underwritten questions to the king.)
|
|
The laws and customs, conceded to the English people by the
ancient, just, and pious English kings, will you concede and preserve to the same people,
with the confirmation of an oath? and especially the laws, customs, and liberties conceded
to the clergy and people by the illustrious king Edward?
|
|
(And the king shall answer,) I do
concede, and will preserve them, and confirm them by my oath.
|
|
Will yon preserve to the church of God, the clergy, and the
people, entire peace and harmony in God, according to your powers?
|
| (And the king shall answer,) I will. |
|
In all your judgments, will you cause equal and right justice and
discretion to be done, in mercy and truth, according to your powers?
|
| (And the king shall answer,) I will. |
| Do you concede that the just laws and customs,
which the common people have chosen,
shall be preserved; and do you promise that they shall be protected by
you, and strengthened to the honor of God, according to your powers?
|
| (And the king shall answer,) I concede and promise."
|
| |
| |
|
[8] The following is a copy of the original: |
| |
| "Forma Juramenti Regis Anglicae in Coronacione sua: |
|
(Archiepiscopus Cantuariae, ad quo de jure et consuetudine Ecclesiae Cantuariae,
antiqua et approbata, pertinet Reges Angliae inungere et coronare, die coronacionis Regis,
anteque Rex coronetur, faciet Regi Interrogationes subscriptas.)
|
|
Si leges et consuetudines ab antiquis justis et Deo devotis Regibus plebi Anglicano
concessas, cum sacramenti confirmacione eidem plebi concedere et servare (volueris:) Et
praesertim leges et consuetudines et libertates a glorioso Rege Edwardo clero populoque
concessas ?
|
| (Et respondeat Rex,) Concedo et servare volo, et sacramento confirmare. |
|
Servabis Ecclesiae Dei, Cleroque, et Populo, pacem ex integro et concordiam in Deo
secundum vires tuas ?
|
| (Et respondeat Rex,) Servabo. |
|
Facies fieri in omnibus Judieiis tuis equam et rectam justioiam, et discreeionem, in
misericordia et veritate, secundum vires tuas '?
|
| (Et respondeat Rex,) Faciam. |
|
Concedis justas, leges et consuetudines esse tenendas, et promittis per te eas esse
protegendas, et ad honorem Dei corroborandas,
quas
vulgus elegit
, secundum vires tuas ?
|
| (Et respondeat Rex,) Concedo et promitto."
|
| |
| |
| |
| 104 |
|
The language used in the last of these questions, "Do you
concede that the just laws and customs,
which the common people have chosen, (quas vulgus elegit,)
shall be preserved?" &c., is worthy of especial notice, as
showing that the laws, which were to be preserved, were not necessarily all the laws which
the kings enacted,
but only such of them as the
common people had selected or approved. |
|
And how had the common people made known
their approbation or selection of these laws? Plainly, in no other way than this –
that the juries composed of the common people had voluntarily
enforced them.
The common people had
no other legal form of making known their approbation of particular laws.
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The word "concede," too, is an important word. In the
English statutes it is usually translated
grant –
as if with an intention to indicate
that "the laws, customs, and liberties" of the English people were mere
privileges, granted
to
them by the king; whereas it should be translated
concede,
to indicate simply an acknowledgment,
on the part of the king, that such were the laws, customs, and liberties,
which had been chosen and established by the people themselves, and of right belonged to
them, and which he was bound to respect.
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I will now give some authorities to show that the
foregoing oath has,
in substance,
been the coronation oath from the times of William the Conqueror,
(1066,) down to the time of James the First, and probably until 1688.
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It will be noticed, in the quotation from Kelham, that he says
this oath (or the oath of William the Conqueror) is "in sense and substance the very
same with that which the
Saxon
kings used to take at their coronations." |
Hale says:
"Yet the English were very zealous for them," (that is, for the laws of Edward
the Confessor,) "no less or otherwise than they are at this time for the Great
Charter; insomuch that they were never satisfied till the said laws were reenforced, and
mingled, for the most part, with the coronation oath of king William I., and some of his
successors." –
1 Hale's History
of Common Law, 157. |
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Also, "William, on his coronation, had
sworn to govern by the laws of Edward the Confessor, some of which had been reduced into
writing, but the greater part consisted of the immemorial customs of the realm."
–
Ditto, p. 202, note L. |
Kelham says:
" Thus stood the laws of England at the entry of William I., and it seems plain that
the laws, commonly called the laws of Edward the Confessor, were at that time the standing
laws of the kingdom, and considered the great rule of their rights and liberties; and that
the Eriglish were so zealous for them, 'that they were never satisfied till the said laws
were reenforced, and mingled, for the most part , with the coronation oath.' Accordingly,
we find that this great conqueror, at his coronation on the Christmas day succeeding his
victory, took an oath at the altar of St. Peter, Westminster,
in sense and substance the very same with that which the Saxon kings
used to take at their coronations. * *
And at
Barkhamstead, in the fourth year of his reign, in the presence of Lanfranc, Archbishop of
Canterbury, for the quieting of the people, he swore that he would inviolably observe the
good and approved ancient laws which had been made by the devout and pious kings of
England, his ancestors, and chiefly by King Edward; and we are told that the people then
departed in good humor." –
Kelham's
Preliminary Discourse to the Laws of William the Conqueror. See, also, 1 Hale's History of
the Common Law, 186. |
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Crabbe says that William the Conqueror
"solemnly swore that he would observe the good and approved laws of Edward the
Confessor." –
Crabbe's History of the
English Law, p. 43.
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The successors of William, up to the time of Magna Carta,
probably all took the same oath, according to the custom of the kingdom; although there
may be no historical accounts extant of the oath of each separate king. But history tells
us specially that Henry I., Stephen, and Henry II., confirmed these ancient laws and
customs. It appears, also, that the barons desired of John (what he afterwards granted by
Magna Carta)
"that the laws and
liberties of King Edward,
with other privileges
granted to the kingdom and church of England, might be confirmed, as they were contained
in the charters of Henry the First; further alleging,
that at the time of his absolution, he promised by his oath to observe these very laws and
liberties." – Echard's History of England, p. 105 – 6. |
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It would appear, from the following
authorities, that since Magna Carta the form of the coronation oath has been
"to maintain the law of the land," –
meaning that law as embodied in Magna Carta. Or perhaps
it is more probable that the ancient form has been still observed, but that, as its
substance and purport were
"to
maintain the law of the land,"
this
latter form of expression has been used, in the instances here cited, from motives of
brevity and convenience. This supposition is the more probable, from the fact that I find
no statute prescribing a change in the form of the oath until 1688.
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That Magna Carta was considered as embodying "the law of the
land," or "common law," is shown by a statute passed by Edward I., wherein
he "grants," or concedes,
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"That the Charter of Liberties and the Charter of the Forest
* * shall be kept in every point, without breach, * * and that our justices, sheriffs,
mayors, and other ministers, which, under us, have the
laws of our land [9]]
to guide, shall allow the said
charters pleaded before them in judgment, in all their points, that is, to wit,
the Great Charter as the Common Law, and the Charter of the Forest for the wealth of the realm.
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"And we will, that if any judgment be
given from henceforth, contrary to the points of the charters aforesaid, by the justices,
or by any other our ministers that hold plea before them against the points of the
charters, it shall be undone, and holden for naught." –
25 Edward I., ch. 1 and 2. (1297.)
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[9] It would appear, from the text, that the Charter of Liberties and
the Charter of the Forest were sometimes called "
laws of the land."
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Blackstone also 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 usually mean the
old common law which was established under our Saxon princes." – Blackstone's
Introduction to the Charters. See Blackstone's Law Tracts, 289. |
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 History of the English Law, p. 127. |
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That the coronation oath of the kings
subsequent to Magna Carta was, in substance, if not in form,
"to maintain this law of the land, or common law,"
is shown by a statute of Edward Third, commencing as
follows:
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"Edward, by the Grace of God, &c., &c., to the
Sheriff of Stafford, Greeting: Because that by divers complaints made to us, we have
perceived that the
law of the land, which
we by oath are bound to maintain," &c. – St. 20 Edward III. (1346.) |
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The following extract from Lord Somers'
tract on Grand Juries shows that the coronation oath continued the same as late as 1616,
(four hundred years after Magna Carta.) He says:
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"King James, in his speech to the judges, in the Star
Chamber, Anno 1616, told them, 'That he had, after many years, resolved to renew his oath,
made at his coronation, concerning justice, and the promise therein contained for
maintaining the law of the land.' And, in the next page save one, says,
'I was sworn to maintain the law of the land,
and
therefore had been perjured if I had broken it. God is my judge, I never intended it.'
" –
Somers on Grand Juries, p. 82. |
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In 1688, the coronation oath was
changed by act of Parliament, and the king was made to swear:
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"To govern the people of this kingdom of England, and the
dominions thereto belonging,
according to
the statutes in Parliament agreed on, and the laws and customs of the same." –
St. 1 William and Mary, ch. 6. (1688.)
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The effect and legality of this oath will hereafter be
considered. For the present it is sufficient to show, as has been already sufficiently
done, that from the Saxon times until at least as lately as 1616, the coronation oath has
been, in substance,
to maintain the law of
the land, or the common law,
meaning
thereby the ancient Saxon customs, as embodied in the laws of Alfred, of Edward the
Confessor, and finally in Magna Carta.
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It may here be repeated that this oath plainly proves that the
statutes of the king were of no authority over juries, if inconsistent with their ideas of
right,; because it was one part of the common law that juries should try all causes
according to their own consciences, any legislation of the king to the contrary
notwithstanding. [10]
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[10] As the ancient coronation oath, given in the text, has come down from the
Saxontimes, the following remarks of Palgrave will be pertinent, in connection with the
oath, as illustrating the fact that, in those times, no special authority attached to the
laws of the king: |
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"The Imperial Witenagemot was not a legislative assembly, in the strict sense of
the term, for the whole Anglo-Saxon empire. Promulgating his edicts amidst his peers and
prelates, the king uses the language of command; but the theoretical prerogative was
modified by usage, and the practice of the constitution required that the law should be
accepted by the legislatures (courts) of the several kingdoms. * * The 'Basileus' speaks
in the tone of prerogative: Edgar does not merely recommend, he commands that the law
shall be adopted by all the people, whether English, Danes, or Britons, in every part of
his empire. Let this statute be observed, he continues, by Earl Oslac, and all the host
who dwell under his government, and let it be transmitted
by writ
to the ealdormen of the other subordinate
states. And yet, in defiance of this positive iujunction, the laws of Edgar were not
accepted in Mercia until the reign of Canute the Dane. It might be said that the course so
adopted may have been an exception to the general rule; but in the scanty and imperfect
annals of Anglo-Saxon legislation, we shall be able to find so many examples of similar
proceedings,
that this mode of enactment must be
considered as dictated by the constitution of the empire.
Edward was
the supreme lord of the Northumbrians, but more than a century elapsed before they obeyed
his decrees. The laws of the glorious Athelstane had no effect in Kent, (county,) the
dependent appanage of his crown, until sanctioned by the
Witan of the shire
(county court). And the power of Canute himself, the 'King of all England,' does
not seem to have compelled the Northumbrians to receive his code, until the reign of the
Confessor, when such acceptance became a part of the compact upon the accession of a new
earl. |
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Legislation constituted but a small portion of the ordinary business transacted by the
Imperial Witenagemot. The wisdom of the assembly was shown in avoiding unnecessary change.
Consisting principally of traditionary usages and
ancestorial customs, the law was upheld by opinion. The people considered their
jurisprudence as a part of their inheritance.
Their privileges and
their duties were closely conjoined;
most
frequently, the statutes themselves were only affirmances of ancient customs, or
declaratory enactments.
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In the Anglo-Saxon commonwealth, therefore, the legislative functions of the
Witenagemot were of far less importance than the other branches of its authority. * * The
members of the Witenagemot were the ' Pares Curiae ' (Peers of Court) of the kingdom. How
far, on these occasions, their opinion or their equity controlled the power of the crown,
cannot be ascertained. But the form of inserting their names in the
'Testing Clause'
was retained under the Anglo-Norman
reigns; and the sovereign, who submitted his Charter to the judgment of the
Proceres, professed to be guided by the
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| 109 |
| opinion which they gave. As the
'Pares'
of the empire, the Witenagemot decided' the disputes between the great vassals
of the crown. * * The jurisdiction exercised in the Parliament of Edward I., when the
barony of a
Lord-Marcher
became the subject of litigation, is entirely analogous to the proceedings thus adopted by
the great council of Edward, the son of Alfred, the Anglo-Saxon king. |
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In this assembly, the king, the prelates, the dukes, the ealdormen, and the optimates
passed judgment upon all great offenders.* *
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The sovereign could not compel the obedience of the different nations composing the
Anglo-Saxon empire.
Hence, it became more necessary for him to conciliate their opinions,
if he solicited
any service from a vassal prince or a vassal state beyond the ordinary terms of the
compact; still more so, when he needed the support of a free burgh or city. And we may
view the assembly (the Witenagemot) as partaking of the character of a political congress,
in which the liegemen of the crown, or the communities protected by the ' Basileus,'
(sovereign,) were
asked or persuaded
to relieve the exigences of the state, or to consider those measures which might
be required for the common weal. The sovereign was compelled to
parley
with his dependents, |
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It may be doubted whether any one member of the empire had power to legislate for any
other member. The Regulus of Cumbria was unaffected by the vote of the Earl of East
Angliae, if he chose to stand out against it. These dignitaries constituted a congress, in
which the sovereign could treat more conveniently and effectually with his vassals than by
separate negotiations. * * But the determinations of the Witan bound those only who were
present, or who concurred in the proposition; and a vassal denying his assent to the
grant, might assert that the engagement which he had contracted with his superior did not
involve any pecuniary subsidy, but only rendered him liable to perform service in the
field." –
1 Palgrave's Rise and Progress
of the English Commonwealth, 637 to 642.
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We Hold These Truths…