Essay on the Trial By Jury Part 11

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?" ect., 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.

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.

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 pa.s.sed 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 [32] 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.)

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 G.o.d, ect., ect., 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," ect. 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. G.o.d 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.)

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.[33]

[1] Hale says:"The trial by jury of twelve men was the usual trial among the Normans, in most suits; especially in a.s.sizes, et juris utrum." 1 Hale's History of the Common Law, 219

This was in Normandy, before the conquest of England by the Normans. See Ditto, p. 218.

Crabbe says:"It cannot be denied that the practice of submitting causes to the decision of twelve men was universal among all the northern tribes (of Europe) from the very remotest antiquity."

Crabbe's History of the English Law, p. 32.

[2] "The people, who in every general council or a.s.sembly could oppose and dethrone their sovereigns, were in little dread of their encroachments on their liberties; and kings, who found sufficient employment in keeping possession of their crowns, would not likely attack the more important privileges of their subjects."

[3] This office was afterwards committed to sheriffs. But even while the court was held by the lord, "the Lord was not judge, but the Pares (peers) only." Gilbert on the Court of Exchequer, 61-2.

[4] The opinion expressed in the text, that the Witan had no legislative authority, is corroborated by the following authorities:

"From the fact that the new laws pa.s.sed by the king and the Witan were laid before the s.h.i.+re-mote, (county court,) we should be almost justified in the inference that a second sanction was necessary before they could have the effect of law in that particular county." Durham's Middle Ages, Sec. 2, B. 2, Ch. l.

57 Lardner's Cab. Cyc., 53.

The "second sanction" required to give the legislation of the king and Witan the effect of law, was undoubtedly, I think, as a general thing, the sanction of a jury. I know of no evidence whatever that laws were ever submitted to popular vote in the county courts, as this author seems to suppose possible. Another mode, sometimes resorted to for obtaining the sanction of the people to the laws of the Witan, was, it seems, to persuade the people themselves to swear to observe them. Mackintoshsays:

"The preambles of the laws (of the Witan) speak of the infinite number of liegemen who attended, as only applauding the measures of the a.s.sembly. But this applause was neither so unimportant to the success of the measures, nor so precisely distinguished from a share in legislation, as those who read history with a modern eye might imagine. It appears that under Athelstan expedients were resorted to, to obtain a consent to the law from great bodies of the people in their districts, which their numbers rendered impossible in a national a.s.sembly. That monarch appears to have sent commissioners to hold s.h.i.+re-gemotes or county meetings, where they proclaimed the laws made by the king and his counsellors, which, being acknowledged and sworn to at these folk-motes (meetings of the people) became, by their a.s.sent, completely binding on the whole nation." Mackintosh's Hist. of England, Ch. 2. 45 Lardner's Cab. Cc., 75.

[5] Page 31.

[6] Hallam says, "It was, however, to the county court that an English freeman chiefly looked for the maintenance of his civil rights." 2 Middle Ages, 392.

Also, "This (the county court) was the great const.i.tutional judicature in all ques- tions of civil right." Ditto, 395.

Also, "The liberties of these Anglo-Saxon thanes were chiefly secured, next to their swords and their free spirits, by the inestimable right of deciding civil and criminal suits in their own county courts." Ditto, 899.

[7] "Alfred may, in one sense, be called the founder of these laws, (the Saxon,) for until his time they were an unwrittencode, but he expressly says, 'that I, Alfred, collected the good laws of our forefathers into one code, and also I wrote them down'

-- which is a decisive fact in the history of our laws well worth noting." Introduction to Gilbert's History of the Common Pleas, p. 2, note.

Kelham says, "Let us consult our own lawyers and historians, and they will tell as that Alfred, Edgar, and Edward the Confessor, were the great compilers and restorers of the English Laws."

Kelham's Preliminary Discourse to the Laws of William the Conqueror, p. 12. Appendix to Kelham's Dictionary of the Norman Language.

"He (Alfred) also, like another Theodosius, collected the various customs that he found dispersed in the kingdom, and reduced and digested them into one uniform system, or code of laws, in his som-bec, or liber judicialis (judicial book). This he compiled for the use of the court baron, hundred and county court, the court-leet and sheriff's toarn, tribunals which he established for the trial of all causes, civil and criminal, in the very districts wherein the complaints arose." 4 Blackstone, 411.

Alfred himself says, "Hence I, King Alfred, gathered these together, and commanded many of those to be written down which our forefathers observed those which I liked and those which I did not like, by the advice of my Witan, I threw aside. For I durst not venture to set down in writing over many of my own, since I knew not what among them would please those that should come after us. But those which I met with either of the days of me, my kinsman, or of Offa, King of Mercia, or of Aethelbert, who was the first of the English who received baptism thse which appeared to me the justest I have here collected, and abandoned the others. Then I, Alfred, King of the West Saxons, showed these to all my Witan, and they then said that they were all willing to observe them." Laws of Alfred, translated by R. Price, prefixed to Mackintosh's History of England, vol. l. 45 Lardner's Cab. Cyc.

"King Edward * * projected and begun what his grandson, King Edward the Confessor, afterwards completed, viz., one uniform digest or body of laws to be observed throughout the whole kingdom, being probably no more than a revival of King Alfred's code, with some improvements suggested by necessity and experience, particularly the incorporating some of the British, or, rather, Mercian customs, and also such of the Danish (customs) as were reasonable and approved, into the West Saxon Lage, which was still the ground-work of the whole. And this appears to be the best supported and most plausible conjecture, (for certainty is not to be expected,) of the rise and original of that admirable system of maxims and unwritten customs which is now known by the name of the common law, as extending its authority universally over all the realm, and which is doubtless of Saxon parentage." 4 Blackstone, 412.

"By the Lex Terrae and Lex Regni is understood the laws of Edward the Confessor, confirmed and enlarged as they were by William the Conqueror; and this Const.i.tution or Code of Laws is what even to this day are called 'The Common Law of the Land.'" Introduction to Gilbert's History of the Common Pleas, p. 22, note.