Part 13 (2/2)

”_Forma Juramenti Regis Angliae 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, c.u.m 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 Judiciis tuis equam et rectam justiciam, et discrecionem, 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.”]

[Footnote 63: It would appear, from the text, that the Charter of Liberties and the Charter of the Forest were sometimes called ”_laws of the land_.”]

[Footnote 64: As the ancient coronation oath, given in the text, has come down from the Saxon times, the following remarks of Palgrave will be pertinent, in connection with the oath, as ill.u.s.trating the fact that, in those times, no special authority attached to the laws of the king:

”The Imperial Witenagemot was not a legislative a.s.sembly, 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 const.i.tution 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 const.i.tution 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 _s.h.i.+re_ (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 const.i.tuted but a small portion of the ordinary business transacted by the Imperial Witenagemot. The wisdom of the a.s.sembly was shown in avoiding unnecessary change. _Consisting princ.i.p.ally 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_. 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 opinion which they gave. As the '_Pares_' of the empire, the Witenagemot decided the disputes between the great va.s.sals 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 a.n.a.logous to the proceedings thus adopted by the great council of Edward, the son of Alfred, the Anglo-Saxon king.

In this a.s.sembly, the king, the prelates, the dukes, the ealdormen, and the optimates pa.s.sed 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 va.s.sal prince or a va.s.sal 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 a.s.sembly (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 c.u.mbria was unaffected by the vote of the Earl of East Angliae, if he chose to stand out against it. These dignitaries const.i.tuted a congress, in which the sovereign could treat more conveniently and effectually with his va.s.sals than by separate negotiations. * * But the determinations of the Witan bound those only who were present, or who concurred in the proposition; and a va.s.sal denying his a.s.sent to the grant, might a.s.sert 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.]

[Footnote 65: ”It was the freemen in Germany, and the possessors of land in England, who were _suitors_ (jurors) in the hundred court. These ranks of men were the same. The alteration which had happened in relation to property had invested the German freemen with land or territory.”]

[Footnote 66: It would be wholly erroneous, I think, to infer from this statement of Stuart, that either the ”priests, princes, earls, or _eorldormen_” exercised any authority over the jury in the trial of causes, in the way of dictating the law to them. Henry's account of this matter doubtless gives a much more accurate representation of the truth.

He says that _anciently_

”The meeting (the county court) was opened with a discourse by the bishop, explaining, out of the Scriptures and ecclesiastical canons, their several duties as good Christians and members of the church.

After this, the alderman, or one of his a.s.sessors, made a discourse on the laws of the land, and the duties of good subjects and good citizens. _When these preliminaries were over, they proceeded to try and determine, first the causes of the church, next the pleas of the crown, and last of all the controversies of private parties._”--3 _Henry's History of Great Britain_, 348.

This view is corroborated by Tyrrell's _Introduction to the History of England_, p. 83-84, and by Spence's _Origin of the Laws and Political Inst.i.tutions of Modern Europe_, p. 447, and the note on the same page.

Also by a law of Canute to this effect, _In every county let there be twice a year an a.s.sembly, whereat the bishop and the earl shall be present, the one to instruct the people in divine, the other in human, laws_.--_Wilkins_, p. 136.]

[Footnote 67: There was no distinction between the civil and criminal counts, as to the rights or powers of juries.]

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