An Essay on the Trial by Jury, Chapter III, Part 2 ....Lysander Spooner, 1852

The oaths that have been administered to jurors, in England, and which are their legal guide to their duty, all (so far as I have ascertained them) corroborate the idea that the jurors are to try all cases on their intrinsic merits, independently of any laws that they deem unjust or oppressive. It is probable that an oath was never administered to a jury in England, either in a civil or criminal case, to try it according to law. The earliest oath that I have found prescribed by law to be administered to jurors is in the laws of Ethelred, (about the year 1015,) which require that the jurors "shall swear, with their hands upon a holy thing, that they will condemn no man that is innocent, nor acquit any that is guilty." - 4 Blackstone, 302. 2 Turner's History of the Anglo-Saxons, 155 Wilkins' Laws of the Anglo-Saxons, 117. Spelman's Glossary, word Jurata.

Blackstone assumes that this was the oath of the grand jury 4 Blackstone, 302); but there was but one jury at the time this oath was ordained. The institution of two juries, grand and petit, took place after the Norman Conquest.

Burne, speaking of the administration of justice in the time of Alfred, says that, in every hundred,
"Twelve freeholders were chosen, who, having sworn, together with the hundreder, or presiding magistrate of that division, to administer impartial justice, proceeded to the examination of that cause which was submitted to their jurisdiction." - Hume, ch. 2.

By a law of Henry II., in 1164, it was directed that the sheriff "faciet jurare duodecim legales homines de vicineto seu de villa, quod inde veritatem secundum conscientiam suam manifestabunt," (shall make twelve, legal men from the neighborhood to swear that they will make known the truth according to their conscience.) - Crabbe's History of the English Law, 119. 1 Reeves, 87. Wilkins, 321 - 323.

Glanville, who wrote within the half century previous to Magna Carta, says;
"Each of the knights summoned far this purpose (as jurors) ought to swear that he will neither utter that which is false, nor knowingly conceal the truth." - Beames' Glanville, 65.

Reeve calls the trial by jury "the trial by twelve men sworn to speak the truth." - 1 Reeve's History of the English Law, 87.

Henry says that the jurors "took a solemn oath, that they would faithfully discharge the duties of their office, and not suffer an innocent man to be condemned, nor any guilty person to be acquitted." - 3 Henry's Hist. of Great Britain, 346.

The Mirror of Justices, (written within a century after Magna Carta,) in the chapter on the abuses of the Common law, says:
"It is abuse to use the words, to their knowledge, in their oaths, to make the jurors speak upon thoughts, since the chief words of their oaths be that they speak the truth." - p. 249.

Smith, writing in the time of Elizabeth, says that, in civil suits, the jury "be sworn to declare the truth of that issue according to the evidence, and their conscience." - Smith's Commonwealth of England. edition of 1621, p. 73.

In criminal trials, he says:
"The clerk giveth the juror an oath to go uprightly betwixt the prince and the prisoner." - Ditto, p. 90. [1]

Hale says:
"Then twelve, and no less, of such as are indifferent and are returned upon the principal panel, or the tales, are sworn to try the same according to the evidence." - 2 Hale's History of the Common Law, 141.

It appears from Blackstone that, even at this day, neither in civil nor criminal cases, are jurors in England sworn to try causes according to law. He says that in civil suits the jury are

"Sworn well and truly to try the issue between the parties; and a true verdict to give according to the evidence." - 3 Blackstone, 365.

"The issue" to be tried is whether A owes B anything, and if so, how much? or whether A has in his possession anything that belongs to B; or whether A has wronged B, and ought to make compensation; and if so, how much? No statute passed by a legislature, simply as a legislature, can alter either of these "issues" in hardly any conceivable case, perhaps in none. No unjust law could ever alter them in any. They are all mere questions of natural justice, which legislatures have no power to alter, and with which they have no right to interfere, further than to provide for having them settled by the most competent and impartial tribunal that it is practicable to have, and then for having all just decisions enforced. And any tribunal, whether judge or jury, that attempts to try these issues, has no more moral right to be swerved from the line of justice, by the will of a legislature, than by the will of any other body of men whatever. And this oath does not require or permit a jury to be so swerved.

In criminal cases, Blackstone says the oath of the jury in England is:
"Well and truly to try, and true deliverance make, between our sovereign lord, the king, and the prisoner whom they have in charge, and a true verdict to give according to the evidence." - 4 Blackstone, 355.

"The issue" to be tried, in a criminal case, is "guilty," or "not guilty." The laws passed by a legislature can rarely, if ever, have anything to do with this issue. "Guilt" is an

intrinsic quality of actions, and can neither be created, destroyed, nor changed by legislation. And no tribunal that attempts to try this issue can have any moral right to declare a man guilty, for an act that is intrinsically innocent, at the bidding of a legislature, any more than at the bidding of anybody else. And this oath does not require or permit a jury to do so.

The words, "according to the evidence," have doubtless been introduced into the above oaths in modern times. They are unquestionably in violation of the Common Law, and of Magna Carta, if by them be meant such evidence only as the government sees fit ft allow to go to the jury. If the government can dictate the evidence, and require the jury to decide according to that evidence, it necessarily dictates the conclusion to which they must arrive. In that case the trial is really a trial by the government, and not by the jury. The jury cannot try an issue, unless they determine what evidence shall be admitted. The ancient oaths, it will be observed, say nothing about "according to the evidence." They obviously take it for granted that the jury try the whole case; and of course that they decide what evidence shall be admitted. It would be intrinsically an immoral and criminal act for a jury to declare a man guilty, or to declare that one man owed. money to another, unless all the evidence were admitted, which they thought ought to be admitted, for ascertaining the truth. [2]

Grand Jury. - If jurors are bound to enforce all laws passed by the legislature, it is a very remarkable fact than the oath of grand juries does not require them to be governed by the laws in finding indictments. There have been various forms of oath administered to grand jurors; but by none of them that I recollect ever to have seen, except those of the States of Connecticut and Vermont, are they sworn to present men according to law.

The English form, as given in the essay on Grand Juries, written near two hundred years ago, and supposed to have been written by Lord Somers, is as follows:
"You shall diligently inquire, and true presentment make, of all such articles, matters, and things, as shall be given you in charge, and of all other matters and things as shall come to your knowledge touching this present service. The king's council, your fellows, and your own, you shall keep secret. You shall present no person for hatred or malice; neither shall you leave any one unpresented for favor, or affection, for love or gain, or any hopes thereof; but in all things you shall present the truth, the whole truth, and nothing but the truth, to the best of your knowledge. So help you God."

This form of oath is doubtless quite ancient, for the essay says "our ancestors appointed" it. - See Essay, p. 33 - 34.

On the obligations of this oath, the essay says:
"If it be asked how, or in what manner, the (grand) juries shall inquire, the answer is ready, according to the best of their understandings. They only, not the judges, are sworn to search diligently to find out all treasons, &c., within their charge, and they must and ought to use their own discretion in the way and manner of their inquiry. No directions can legally be imposed upon there by any court or judges; an honest jury will thankfully accept good advice from judges, as their assistants; but they are bound by their oaths to present the truth, the whole truth, and nothing but the truth, to the best of their own, not the judge's, knowledge. Neither can they, without breach of that oath, resign their consciences, or blindly submit to the dictates of others; and therefore ought to receive or reject such advices, as they judge them good or bad. * * Nothing can be more plain and express than the words of the oath are to this purpose. The jurors need not search the law books, nor tumble over heaps of old records, for the explanation of them. Our greatest lawyers may from hence learn more certainly our ancient law in this case, than from all the books in their studies. The language wherein the oath is penned is known and understood by every man, and the words in it have the same signification as they have wheresoever else they are used. The judges, without assuming to themselves a legislative power, cannot put a new sense upon them, other than according to their genuine, common meaning. They cannot magisterially impose their opinions upon the jury, and make them forsake the direct

words of their oath, to pursue their glosses. The grand inquest are bound to observe alike strictly every part of their oath, and to use all just and proper ways which may enable them to perform it; otherwise it were to say, that after men had sworn to inquire diligently after the truth, according to the best of their knowledge, they were bound to forsake all the natural and proper means which their understandings suggest for the discovery of it, if it be commanded by the judges." - Lord Somers' Essay on Grand Juries, p. 88.

What is here said so plainly and forcibly of the oath and obligations of grand juries, is equally applicable to the oath and obligations of petit juries. In both cases the simple oaths of the jurors, and not the instructions of the judges, nor the statutes of kings nor legislatures, are their legal guides to their duties. [3]

SECTION IV

The Right of Juries to fix the Sentence.

The nature of the common law courts existing prior to Magna Carta, such as the county courts, the hundred courts, the court-leet, and the court-baron, all prove, what has already been proved from Magna Carta, that, in jury trials, the juries fixed the sentence; because, in those courts, there was no one but the jury who could fix it, unless it were the sheriff, bailiff, or steward; and no one will pretend that it was fixed by them. The juries unquestionably gave the "judgment" in both civil and criminal cases.

That the juries were to fix the sentence under Magna Carta, is also shown by statutes subsequent to Magna Carta.

A statute passed fifty-one years after Magna Carta, says that a baker, for default in the weight of his bread, "debeat amerciari vel subire judicium pilloae," - that is, "ought to be amerced, or suffer the sentence of the pillory." And that a brewer, for "selling ale, contrary to the assize," "debeat amerciari, vel pati judicium tumbrelli;" that is, "ought to be amerced, or suffer judgment of the tumbrel." - 51 Henry III., st. 6. (1266.)

If the king (the legislative power) had had authority to fix the punishments of these offences imperatively, he would naturally have said these offenders shall be amerced, and shall suffer judgment of the pillory and tumbrel, instead of thus simply expressing the opinion that they ought to be punished in that manner.

The statute of Westminster, passed sixty years after Magna Carta, provides that,
"No city, borough, nor town, nor any man, be amerced, without reasonable cause, and according to the quantity of the trespass; that is to say, every freeman saving his freehold, a merchant saving his merchandise, a villein his waynage, and that by his or their peers." - 3 Edward I., ch. 6. (1275.)

The same statute (ch. 18) provides further, that,
"Forasmuch as the common fine and amercement of the whole county in Eyre of the justices for false judgments, or for other trespass, is unjustly assessed by sheriff's and baretors in the shires, so that the sum is many times increased, and the parcels otherwise assessed than they ought to be, to the damage of the people, which be many times paid to the sheriffs and baretors, which do not acquit the payers; it is provided, and the king wills, that from henceforth such sums shall be assessed before the justices in Eyre, afore their departure, by the oath of knights and other honest men, upon all such as ought to pay; and the justices shall cause the parcels to be put into their estreats, which shall be delivered up unto the exchequer, and not the whole sum." - St. 3 Edward I., ch. 18, (1275.) [4]

The following statute, passed in 1341, one hundred and twenty-five years after Magna Carta, providing for the trial of peers of the realm, and the king's ministers, contains a recognition of the principle of Magna Carta, that the jury are to fix the sentence.

"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.

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.

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, a severe punishment, &c., &c.

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."

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]

100

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; 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.)

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.

102

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."

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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.

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.

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.

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.

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.

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.

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,

"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.

"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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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.

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:

"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.)

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:

"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.

In 1688, the coronation oath was changed by act of Parliament, and the king was made to swear:

"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.

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]

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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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.

In this assembly, the king, the prelates, the dukes, the ealdormen, and the optimates passed judgment upon all great offenders.* *

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,

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.

FOOTNOTES

[1] This quaint and curious book; (Smith's Commonwealth of England) describes the minutiae of trials, giving in detail the mode of impaneling the jury and then the conduct of the lawyers, witnesses, and court I give the following extracts, tending to show that the judges impose no law upon the juries, in either civil or criminal cases but only require them to determine the causes according to their consciences.

In civil causes he says:
"When it is thought that it is enough pleaded before them, and the witnesses have said what they can, one of the judges, with a brief and pithy recapitulation, reciteth to the twelve in sum the arguments of the sergeants of either side, that which the witnesses have declared, and the chief points of the evidence showed in writing, and once again putteth them in mind of the issue, and sometime giveth it them in writing, delivering to them the evidence which is showed on either part, if any be, (evidence here is called writings of contracts, authentical after the manner of England, that is to say, written, sealed, and delivered,) and biddeth them go together." - p. 74.

This is the whole account given of the charge to the jury. In criminal eases, after the witnesses have been heard, and the prisoner has said what he pleases in his defence, the book proceeds:

"When the judge hath heard them say enough, he asketh if they can say any more. If they say no, then he turneth his speech to the inquest. 'Good men, (saith he,) ye of the inquest, ye have heard what these men say against the prisoner. You have also heard what the prisoner can say for himself. Have an eye to your oath, and to your duty, and do that which God shall put in your minds to the discharge of your consciences, and mark well what is said.' " - p. 92.

This is the whole account given of the charge in a criminal ease.

The following statement goes to confirm the same idea, that jurors in England have formerly understood it to be their right and duty to judge only according to their consciences, and not to submit to any dictation from the court, either as to law or fact.

"If having pregnant evidence, nevertheless, the twelve do acquit the malefactor which they will do sometime, especially if they perceive either one of the justices or of the judges, or some other man, to pursue too much and too maliciously the death of the prisoner, * * the prisoner escapeth; but the twelve (are) not only rebuked by the judges, but also threatened of punishment; and many times commanded to appear in the Star-Chamber, or before the Privy Council for the matter. But this threatening chanceth oftener than the execution thereof; and the twelve answer with most gentle words, they did it according to their consciences, and pray the judges to be good unto them, they did as they thought right, and as they accorded all, and so it passeth away for the most part." - p. 100.

The account given of the trial of a peer of the realm corroborates the same point:

"If any duke, marquis, or any other of the degrees of a baron, or above, lord of the Parliament, be appeached of treason, or any other capital crime, he is judged by his peers and equals; that, is, the yeomanry doth not go upon him, but an inquest of the Lords of Parliament, and they give their voice not one for all, but each severally as they do in Parliament being (beginning) at the youngest lord. And for judge one lord sitteth, who is constable of England for that day. The judgment once given, he breaketh his staff, and abdicateth his office. In the rest there is no difference from that above written," (that is, in the case of a freeman.) - p. 98.

[2] "The present form of the jurors' oath is that they shall 'give a true verdict according to the evidence.' At what time this form was introduced is uncertain; but for several centuries after the Conquest, the jurors, both in civil and criminal cases, were sworn merely to speak the truth. (Glanville, lib. 2, cap. 17; Bracton, lib. 3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision was accurately termed veredictum, or verdict, that is, ' a thing truly said'; whereas the phrase 'true verdict' in the modern oath is not an accurate expression." - Political Dictionary, word Jury.

[3] Of course, there can be no legal trial by jury, in either civil or criminal cases, where the jury are sworn to try the cases "according to law."

[4] Coke, as late as 1588, admits that amercements must be fixed by the peers (8 Coke's Rep. 88, 2 Inst. 27); but he attempts, wholly without success, as it seems to me, to show a difference between fines and amercements. The statutes are very numerous, running through the three or four hundred years immediately succeeding Magna Carta, in which fines, ransoms, and amercements are spoken of as if they were the common punishments of offences, and as if they all meant the same thing. If, however, any technical difference could be made out between them, there is clearly none in principle; and the word amercement, as used in Magna Carta, must be taken in its most comprehensive sense.

[5] "Common right" was the common law. 1 Coke's Inst. 142 a. 2 do. 55, 6.

[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.)

[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, &.

[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."

[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."

[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:

"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 injunction, 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.

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.

Continue to Chapter IV

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