Chapter XII: 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_;"[59] 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_."

When 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 often-times 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.[60]

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_.[61] 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. 1. (1346.)

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.