Part 11 (1/2)

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 ill.u.s.trious king Edward?

(And the king shall answer,) I do concede, and will preserve them, and confirm them by my oath.

Will you preserve to the church of G.o.d, the clergy, and the people, entire peace and harmony in G.o.d, 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 G.o.d, according to your powers?

(And the king shall answer,) I concede and promise.”

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.

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 English 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_[63] 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: