Part 11 (2/2)

”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, &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. 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.[64]

[Footnote 34: 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.]

[Footnote 35: ”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.”]

[Footnote 36: 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.]

[Footnote 37: 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.”--_Dunham's Middle Ages, Sec._ 2, _B._ 2, _Ch._ 1. _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.

Mackintosh says:

”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. Cyc._, 75.]

[Footnote 38: Page 31.]

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