Chapter XIII: Section VI: The Coronation Oath

That the legislation of the king was of no authority over a jury, is further proved by the oath taken by the kings at their coronation. This oath seems to have been substantially the same, from the time of the _Saxon_ kings, down to the seventeenth century, as will be seen from the authorities hereafter given.

The purport of the oath is, that the king swears _to maintain the law of the land_--that is, _the common law_. In other words, he swears "_to concede and preserve to the English people the laws and customs conceded to them by the ancient, just, and pious English kings, * * and especially the laws, customs, and liberties conceded to the clergy and people by the illustrious king Edward;" * * and "the just laws and customs which the common people have chosen, (quas vulgus elegit)_."

These are the same laws and customs which were called by the general name of "_the law of the land_," or "_the common law_," and, with some slight additions, were embodied in _Magna Carta_.

This oath not only forbids the king to enact any statutes contrary to the common law, but it proves that his statutes could be of no authority over the consciences of a jury; since, as has already been sufficiently shown, it was one part of this very common law itself,--that is, of the ancient "laws, customs, and liberties," mentioned in the oath,--that juries should judge of all questions that came before them, according to their own consciences, independently of the legislation of the king.

It was impossible that this right of the jury could subsist consistently with any right, on the part of the king, to impose any authoritative legislation upon them. His oath, therefore, to maintain the law of the land, or the ancient "laws, customs, and liberties," was equivalent to an oath that he would never _assume_ to impose laws upon juries, as imperative rules of decision, or take from them the right to try all cases according to their own consciences. It is also an admission that he had no constitutional power to do so, if he should ever desire it. This oath, then, is conclusive proof that his legislation was of no authority with a jury, and that they were under no obligation whatever to enforce it, unless it coincided with their own ideas of justice.

The ancient coronation oath is printed with the Statutes of the Realm, vol. i., p. 168, and is as follows:[62]

TRANSLATION.

"_Form of the Oath of the King of England, on his Coronation._

(The Archbishop of Canterbury, to whom, of right and custom of the
Church of Canterbury, ancient and approved, it pertains to anoint and
crown the kings of England, on the day of the coronation of the king,
and before the king is crowned, shall propound the underwritten
questions to the king.)

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
illustrious 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 God, the clergy, and the people,
entire peace and harmony in God, 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 God,
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 passed 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:

"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 God, &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. God 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 assizes, 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 assembly 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 passed by the king and the Witan were laid before the shire-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 assembly. 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 assembly. That monarch appears to have sent commissioners to hold _shire-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 assent, completely binding on the whole nation."--_Mackintosh's Hist. of England_, _Ch._ 2. _45 Lardner's Cab. Cyc._, 75.]

[Footnote 38: Page 31.]

[Footnote 39: 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 constitutional judicature in all questions 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_, 399.]

[Footnote 40: "Alfred may, in one sense, be called the founder of these laws, (the Saxon,) for until his time they were an unwritten code, 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 us * * 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 tourn, 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--those 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._ 1. _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 Constitution 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_.]

[Footnote 41: Not the conqueror of the English people, (as the friends of liberty maintain,) but only of Harold the usurper.--See _Hale's History of the Common Law_, ch. 5.]

[Footnote 42: For all these codes see Wilkins' Laws of the Anglo-Saxons.

"Being regulations adapted to existing institutions, the Anglo-Saxon statutes are concise and technical, alluding to the law which was then living and in vigor, rather than defining it. The same clauses and chapters are often repeated word for word, in the statutes of subsequent kings, showing that enactments which bear the appearance of novelty are merely declaratory. Consequently the appearance of a law, seemingly for the first time, is by no means to be considered as a proof that the matter which it contains is new; nor can we trace the progress of the Anglo-Saxon institutions with any degree of certainty, by following the dates of the statutes in which we find them first noticed. All arguments founded on the apparent chronology of the subjects included in the laws, are liable to great fallacies. Furthermore, a considerable portion of the Anglo-Saxon law was never recorded in writing. There can be no doubt but that the rules of inheritance were well established and defined; yet we have not a single law, and hardly a single document from which the course of the descent of land can be inferred. * * Positive proof cannot be obtained of the commencement of any institution, because the first written law relating to it may possibly be merely confirmatory or declaratory; neither can the non-existence of any institution be inferred from the absence of direct evidence. Written laws were modified and controlled by customs of which no trace can be discovered, until after the lapse of centuries, although those usages must have been in constant vigor during the long interval of silence."--_1 Palgrave's Rise and Progress of the English Commonwealth_, 58-9.]

[Footnote 43: Rapin says, "The customs now practised in England are, for the most part, the same as the Anglo-Saxons brought with them from Germany."--_Rapin's Dissertation on the Government of the Anglo-Saxons_, vol. 2, Oct. Ed., p. 198. See _Kelham's Discourse before named_.]

[Footnote 44: Hallam says, "The county of Sussex contains sixty-five ('hundreds'); that of Dorset forty-three; while Yorkshire has only twenty-six; and Lancashire but six."--_2 Middle Ages_, 391.]

[Footnote 45: Excepting also matters pertaining to the collection of the revenue, which were determined in the king's court of exchequer. But even in this court it was the law "_that none be amerced but by his peers_."--_Mirror of Justices_, 49.]

[Footnote 46: "For the English laws, _although not written_, may, as it should seem, and that without any absurdity, be termed laws, (since this itself is law--that which pleases the prince has the force of law,) I mean those laws which it is evident were promulgated by the advice of the nobles and the authority of the prince, concerning doubts to be settled in their assembly. For if from the mere want of writing only, they should not be considered laws, then, unquestionably, writing would seem to confer more authority upon laws themselves, than either the equity of the persons constituting, or the reason of those framing them."--_Glanville's Preface_, p. 38. (Glanville was chief justice of Henry II., 1180.) _2 Turner's History of the Anglo-Saxons_, 280.]

[Footnote 47: Mackintosh's History of England, ch. 3. Lardner's Cabinet Cyclopaedia, 266.]

[Footnote 48: If the laws of the king were received as authoritative by the juries, what occasion was there for his appointing special commissioners for the trial of offences, without the intervention of a jury, as he frequently did, in manifest and acknowledged violation of Magna Carta, and "the law of the land?" These appointments were undoubtedly made for no other reason than that the juries were not sufficiently subservient, but judged according to their own notions of right, instead of the will of the king--whether the latter were expressed in his statutes, or by his judges.]

[Footnote 49: Of course, Mr. Reeve means to be understood that, in the hundred court, and court-leet, _the jurors were the judges_, as he declares them to have been in the county court; otherwise the "bailiff" or "steward" must have been judge.]

[Footnote 50: The jurors were sometimes called "assessors," because they assessed, or determined the amount of fines and amercements to be imposed.]

[Footnote 51: "The barons of the Hundred" were the freeholders. Hallam says: "The word _baro_, originally meaning only a man, was of very large significance, and is not unfrequently applied to common freeholders, as in the phrase _court-baron_."--_3 Middle Ages_, 14-15.

_Blackstone_ says: "The _court-baron_ * * is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes anciently called; for that it is held before the freeholders who owe suit and service to the manor."--_3 Blackstone_, 33.]

[Footnote 52: The ancient jury courts kept no records, because those who composed the courts could neither make nor read records. Their decisions were preserved by the memories of the jurors and other persons present.]

[Footnote 53: Stuart says:

"The courts, or civil arrangements, which were modelled in Germany, preserved the independence of the people; and having followed the Saxons into England, and continuing their importance, they supported the envied liberty we boast of. * *

"As a chieftain led out his retainers to the field, and governed them during war; so in peace he summoned them together, and exerted a civil jurisdiction. He was at once their captain and their judge. They constituted his court; and having inquired with him into the guilt of those of their order whom justice had accused, they assisted him to enforce his decrees.

"This court (the court-baron) was imported into England; but the innovation which conquest introduced into the fashion of the times altered somewhat its appearance. * *

"The head or lord of the manor called forth his attendants to his hall. * * He inquired into the breaches of custom, and of justice, which were committed within the precincts of his territory; and with his followers, _who sat with him as judges_, he determined in all matters of debt, and of trespass to a certain amount. He possessed a similar jurisdiction with the chieftain in Germany, and his tenants enjoyed an equal authority with the German retainers.

"But a mode of administration which intrusted so much power to the great could not long be exercised without blame or injustice. The German, guided by the candor of his mind, and entering into all his engagements with the greatest ardor, perceived not, at first, that the chieftain to whom he submitted his disputes might be swayed, in the judgments he pronounced, by partiality, prejudice, or interest; and that the influence he maintained with his followers was too strong to be restrained by justice. Experience instructed him of his error; he acknowledged the necessity of appealing from his lord; and the court of the Hundred was erected.

"This establishment was formed both in Germany and England, by the inhabitants of a certain division, who extended their jurisdiction over the territory they occupied.[65] They bound themselves under a penalty to assemble at stated times; _and having elected the wisest to preside over them, they judged, not only all civil and criminal matters_, but of those also which regarded religion and the priesthood. The judicial power thus invested in the people was extensive; they were able to preserve their rights, and attended this court in arms.

"As the communication, however, and intercourse, of the individuals of a German community began to be wider, and more general, as their dealings enlarged, and as disputes arose among the members of different hundreds, the insufficiency of these courts for the preservation of order was gradually perceived. The _shyre mote_, therefore, or _county court_, was instituted; and it formed the chief source of justice both in Germany and England.

"The powers, accordingly, which had been enjoyed by the court of the _hundred_, were considerably impaired. It decided no longer concerning capital offences; it decided not concerning matters of liberty, and the property of estates, or of slaves; its judgments, in every case, became subject to review; and it lost entirely the decision of causes, when it delayed too long to consider them.

"Every subject of claim or contention was brought, in the first instance, or by appeal, to the _county court_; and the _earl_, or _eorldorman_, who presided there, was active to put the laws in execution. He repressed the disorders which fell out within the circuit of his authority; and the least remission in his duty, or the least fraud he committed, was complained of and punished. He was elected from among the great, and was above the temptation of a bribe; but, to encourage his activity, he was presented with a share of the territory he governed, or was entitled to a proportion of the fines and profits of justice. Every man, in his district, was bound to inform him concerning criminals, and to assist him to bring them to trial; and, as in rude and violent times the poor and helpless were ready to be oppressed by the strong, he was instructed particularly to defend them.

"His court was ambulatory, and assembled only twice a year, unless the distribution of justice required that its meetings should be oftener. Every freeholder in the county was obliged to attend it; and should he refuse this service, his possessions were seized, and he was forced to find surety for his appearance. The neighboring earls held not their courts on the same day; and, what seems very singular, no judge was allowed, after meals, to exercise his office.

"The druids also, or priests, in Germany, as we had formerly occasion to remark, and the clergy in England, exercised a jurisdiction in the _hundred_ and _county_ courts. They instructed the people in religious duties, and in matters regarding the priesthood; and the princes, earls, or _eorldormen_, related to them the laws and customs of the community. These judges were mutually a check to each other; but it was expected that they should agree in their judgments, and should willingly unite their efforts for the public interest.[66]

"_But the prince or earl performed not, at all times, in person, the obligations of his office._ The enjoyment of ease and of pleasure, to which in Germany he had delivered himself over, when disengaged from war, and the mean idea he conceived of the drudgery of civil affairs, _made him often delegate to an inferior person the distribution of justice in his district_. The same sentiments were experienced by the Saxon nobility; and the service which they owed by their tenures, and the high employments they sustained, called them often from the management of their counties. The progress, too, of commerce, giving an intricacy to cases, and swelling the civil code, added to the difficulty of their office, and made them averse to its duties. _Sheriffs, therefore, or deputies, were frequently appointed to transact their business; and though these were at first under some subordination to the earls, they grew at length to be entirely independent of them. The connection of jurisdiction and territory ceasing to prevail, and the civil being separated from the ecclesiastical power, they became the sole and proper officers for the direction of justice in the counties._

"The _hundred_, however, and _county_ courts, were not equal of themselves for the purposes of jurisdiction and order. It was necessary that a court should be erected, of supreme authority, where the disputes of the great should be decided, where the disagreeing sentiments of judges should be reconciled, and where protection should be given to the people against their fraud and injustice.

"The princes accordingly, or chief nobility, in the German communities, assembled together to judge of such matters. The Saxon nobles continued this prerogative; and the king, or, in his absence, the chief _justiciary_, watched over their deliberations. But it was not on every trivial occasion that this court interested itself. In smaller concerns, justice was refused during three sessions of the _hundred_, and claimed without effect, at four courts of the county, before there could lie an appeal to it.

"So gradually were these arrangements established, and so naturally did the varying circumstances in the situation of the Germans and Anglo-Saxons direct those successive improvements which the preservation of order, and the advantage of society, called them to adopt. The admission of the people into the courts of justice preserved, among the former, that equality of ranks for which they were remarkable; and it helped to overturn, among the latter, those envious distinctions which the feudal system tended to introduce, and prevented that venality in judges, and those arbitrary proceedings, which the growing attachment to interest, and the influence of the crown, might otherwise have occasioned."--_Stuart on the Constitution of England_, p. 222 to 245.

"In the Anglo-Saxon period, accordingly, _twelve_ only were elected; and these, together with the judge, or presiding officer of the district, being sworn to regard justice, and the voice of reason, or conscience, all causes were submitted to them."--_Ditto_, p. 260.

"Before the orders of men were very nicely distinguished, the jurors were elected from the same rank. When, however, a regular subordination of orders was established, and when a knowledge of property had inspired the necessitous with envy, and the rich with contempt, _every man was tried by his equals_. The same spirit of liberty which gave rise to this regulation attended its progress. Nor could monarchs assume a more arbitrary method of proceeding. 'I will not' (said the Earl of Cornwall to his sovereign) 'render up my castles, nor depart the kingdom, but by judgment of my peers.' Of this institution, so wisely calculated for the preservation of liberty, all our historians have pronounced the eulogium."--_Ditto_, p. 262-3.

Blackstone says:

"The policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts of judicature as there are manors and towns in the kingdom; _wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbors and friends_. These little courts, however, communicated with others of a larger jurisdiction, and those with others of a still greater power; ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as, by reason of their weight and difficulty, demanded a more solemn discussion. The course of justice flowing in large streams from the king, as the fountain, to his superior courts of record; and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy. * *

"These inferior courts, at least the name and form of them, still continue in our legal constitution; but as the superior courts of record have, in practice, obtained a concurrent original jurisdiction, and as there is, besides, a power of removing plaints or actions thither from all the inferior jurisdictions; upon these accounts (among others) it has happened that these petty tribunals have fallen into decay, and almost into oblivion; whether for the better or the worse may be matter of some speculation, when we consider, on the one hand, the increase of expense and delay, and, on the other, the more able and impartial decisions that follow from this change of jurisdiction.

"The order I shall observe in discoursing on these several courts, constituted for the redress of _civil_ injuries, (for with those of a jurisdiction merely _criminal_ I shall not at present concern myself,[67]) will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed through the kingdom, is yet (with regard to each particular court) confined to very narrow limits; and so ascending gradually to those of the most extensive and transcendent power."--3 _Blackstone_, 30 to 32.

"The _court-baron_ is a court incident to every manor in the kingdom, _to be holden by the steward within the said manor_. This court-baron is of two natures; the one is a customary court, of which we formerly spoke, appertaining entirely to the copy-holders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is a court of the barons, by which name the freeholders were sometimes anciently called; _for that it is held by the freeholders who owe suit and service to the manor, the steward being rather the registrar than the judge_. These courts, though in their nature distinct, are frequently confounded together. _The court we are now considering, viz., the freeholders court, was composed of the lord's tenants, who were the pares_ (equals) _of each other, and were bound by their feudal tenure to assist their lord in the dispensation of domestic justice_. This was formerly held every three weeks; and its most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold plea of any personal actions, of debt, trespass in the case, or the like, where the debt or damages do not amount to forty shillings; which is the same sum, or three marks, that bounded the jurisdiction of the ancient Gothic courts in their lowest instance, or _fierding courts_, so called because four were instituted within every superior district or hundred."--3 _Blackstone_, 33, 34.

"A _hundred court_ is only a larger court-baron, being held for all the inhabitants of a particular hundred, instead of a manor. _The free suitors are here also the judges, and the steward the registrar, as in the case of a court-baron._ It is likewise no court of record, resembling the former at all points, except that in point of territory it is of greater jurisdiction. This is said by Sir Edward Coke to have been derived out of the county court for the ease of the people, that they might have justice done to them at their own doors, without any charge or loss of time; but its institution was probably coeval with that of hundreds themselves, which were formerly observed to have been introduced, though not invented, by Alfred, being derived from the polity of the ancient Germans. The _centeni_, we may remember, were the principal inhabitants of a district composed of different villages, originally in number a _hundred_, but afterward only called by that name, and who probably gave the same denomination to the district out of which they were chosen. Caesar speaks positively of the judicial power exercised in their hundred courts and courts-baron. '_Princeps regiorum atque pagorum_' (which we may fairly construe the lords of hundreds and manors) '_inter suos jus dicunt, controversias que minuunt_.' (The chiefs of the country and the villages declare the law among them, and abate controversies.) And Tacitus, who had examined their constitution still more attentively, informs us not only of the authority of the lords, but that of the _centeni_, the hundreders, or jury, _who were taken out of the common freeholders, and had themselves a share in the determination. 'Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt, centeni singulis, ex plebe comites concilium simul et auctoritas adsunt_.' (The princes are chosen in the assemblies, who administer the laws throughout the towns and villages, and with each one are associated an hundred companions, taken from the people, for purposes both of counsel and authority.) This hundred court was denominated _haereda_ in the Gothic constitution. But this court, as causes are equally liable to removal from hence as from the common court-baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions."--_3 Blackstone_, 34, 35.

"The _county court_ is a court incident to the jurisdiction of the _sheriff_. It is not a court of record, but may hold pleas of debt, or damages, under the value of forty shillings; over some of which causes these inferior courts have, by the express words of the statute of Gloucester, (6 Edward I., ch. 8,) a jurisdiction totally exclusive of the king's superior courts. * * The county court may also hold plea of many real actions, and of all personal actions to any amount, by virtue of a special writ, called a _justicies_, which is a writ empowering the sheriff, for the sake of despatch, to do the same justice in his county court as might otherwise be had at Westminster. _The freeholders of the county court are the real judges in this court, and the sheriff is the ministerial officer._ * * In modern times, as proceedings are removable from hence into the king's superior courts, by writ of pone or _recordari_, in the same manner as from hundred courts and courts-baron, and as the same writ of false judgment may be had in nature of a writ of error, this has occasioned the same disuse of bringing actions therein."--_3 Blackstone_, 36, 37.

"Upon the whole, we cannot but admire the wise economy and admirable provision of our ancestors in settling the distribution of justice in a method so well calculated for cheapness, expedition, and ease. By the constitution which they established, all trivial debts, and injuries of small consequence, were to be recovered or redressed in every man's own county, hundred, or perhaps parish."--_3 Blackstone_, 59.]

[Footnote 54: 1 Blackstone, 63-67.]

[Footnote 55: This quaint and curious book (Smith's Commonwealth of England) describes the _minutiae_ of trials, giving in detail the mode of impanelling the jury, and then the conduct of the lawyers, witnesses, and court. I give the following extracts, _tending to show that the judges impose no law upon the juries, in either civil or criminal cases, but only require them to determine the causes according to their consciences_.

In civil causes he says:

"When it is thought that it is enough pleaded before them, and the
witnesses have said what they can, one of the judges, with a brief
and pithy recapitulation, reciteth to the twelve in sum the arguments
of the sergeants of either side, that which the witnesses have
declared, and the chief points of the evidence showed in writing, and
once again putteth them in mind of the issue, and sometime giveth it
them in writing, delivering to them the evidence which is showed on
either part, if any be, (evidence here is called writings of
contracts, authentical after the manner of England, that is to say,
written, sealed, and delivered,) and biddeth them go together."--p.
74.

This is the whole account given of the charge to the jury.

In criminal cases, after the witnesses have been heard, and the prisoner has said what he pleases in his defence, the book proceeds:

"When the judge hath heard them say enough, he asketh if they can say
any more: If they say no, then he turneth his speech to the inquest.
'Good men, (saith he,) ye of the inquest, ye have heard what these
men say against the prisoner. You have also heard what the prisoner
can say for himself. _Have an eye to your oath, and to your duty, and
do that which God shall put in your minds to the discharge of your
consciences_, and mark well what is said.'"--p. 92.

This is the whole account given of the charge in a criminal case.

The following statement goes to confirm the same idea, that jurors in England have formerly understood it to be their right and duty to judge only according to their consciences, and not to submit to any dictation from the court, either as to law or fact.

"If having pregnant evidence, nevertheless, the twelve do acquit the
malefactor, which they will do sometime, especially if they perceive
either one of the justices or of the judges, or some other man, to
pursue too much and too maliciously the death of the prisoner, * *
the prisoner escapeth; but the twelve (are) not only rebuked by the
judges, but also threatened of punishment; and many times commanded
to appear in the Star-Chamber, or before the Privy Council for the
matter. But this threatening chanceth oftener than the execution
thereof; _and the twelve answer with most gentle words, they did it
according to their consciences_, and pray the judges to be good unto
them, _they did as they thought right, and as they accorded all_, and
so it passeth away for the most part."--p. 100.

The account given of the trial of a peer of the realm corroborates the same point:

"If any duke, marquis, or any other of the degrees of a baron, or
above, lord of the Parliament, be appeached of treason, or any other
capital crime, he is judged by his peers and equals; that is, the
yeomanry doth not go upon him, but an inquest of the Lords of
Parliament, and they give their voice not one for all, but each
severally as they do in Parliament, being (beginning) at the youngest
lord. And for judge one lord sitteth, who is constable of England for
that day. The judgment once given, he breaketh his staff, and
abdicateth his office. In the rest there is no difference from that
above written," (that is, in the case of a freeman.)--p. 98.]

[Footnote 56: "The present form of the jurors' oath is that they shall 'give a true verdict _according to the evidence_.' At what time this form was introduced is uncertain; but for several centuries after the Conquest, the jurors, _both in civil and criminal cases_, were sworn merely to _speak the truth_. (Glanville, lib. 2, cap. 17; Bracton, lib. 3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision was accurately termed _veredictum_, or verdict, that is, 'a thing truly said'; whereas the phrase 'true verdict' in the modern oath is not an accurate expression."--_Political Dictionary_, word _Jury_.]

[Footnote 57: Of course, there can be no legal trial by jury, in either civil or criminal cases, where the jury are sworn to try the cases "_according to law_."]

[Footnote 58: _Coke_, as late as 1588, admits that amercements must be fixed by the peers (8 Coke's Rep. 38, 2 Inst. 27); but he attempts, wholly without success, as it seems to me, to show a difference between fines and amercements. The statutes are very numerous, running through the three or four hundred years immediately succeeding Magna Carta, in which fines, ransoms, and amercements are spoken of as if they were the common punishments of offences, and as if they all meant the same thing. If, however, any technical difference could be made out between them, there is clearly none in principle; and the word amercement, as used in Magna Carta, must be taken in its most comprehensive sense.]

[Footnote 59: "_Common right_" was the common law. _1 Coke's Inst._ 142 a. 2 _do._ 55, 6.]

[Footnote 60: The oath of the justices is in these words:

"Ye shall swear, that well and lawfully ye shall serve our lord the king _and his people_, in the office of justice, and that lawfully ye shall counsel the king in his business, and that ye shall not counsel nor assent to anything which may turn him in damage or disherison in any manner, way, or color. And that ye shall not know the damage or disherison of him, whereof ye shall not cause him to be warned by yourself, or by other; _and that ye shall do equal law and execution of right to all his subjects, rich and poor, without having regard to any person_. And that ye take not by yourself, or by other, privily nor apertly, gift nor reward of gold nor silver, nor of any other thing that may turn to your profit, unless it be meat or drink, and that of small value, of any man that shall have any plea or process hanging before you, as long as the same process shall be so hanging, nor after for the same cause. And that ye take no fee, as long as ye shall be justice, nor robe of any man great or small, but of the king himself. And that ye give none advice or counsel to no man great or small, in no case where the king is party. And in case that any, of what estate or condition they be, come before you in your sessions with force and arms, or otherwise against the peace, or against the form of the statute thereof made, _to disturb execution of the common law_," (mark the term, "_common law_,") "or to menace the people that they may not pursue the law, that ye shall cause their bodies to be arrested and put in prison; and in case they be such that ye cannot arrest them, that ye certify the king of their names, and of their misprision, hastily, so that he may thereof ordain a convenable remedy. And that ye by yourself, nor by other, privily nor apertly, maintain any plea or quarrel hanging in the king's court, or elsewhere in the country. _And that ye deny no man common right by 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" before mentioned,) "that ye do nothing by such letters, but certify the king thereof, and proceed to execute the law," (the "common law" before mentioned,) "notwithstanding the same letters._ And that ye shall do and procure the profit of the king and of his crown, with all things where ye may reasonably do the same. And in case ye be from henceforth found in default in any of the points aforesaid, ye shall be at the king's will of body, lands, and goods, thereof to be done as shall please him, as God you help and all saints."--_18 Edward III._, st. 4. (1344.)]

[Footnote 61: That the terms "_Law_" and "_Right_," as used in this statute, mean the _common law_, is shown by the preamble, which declares the motive of the statute to be that "_the Law of the Land, (the common law,) which we (the king) by our oath are bound to maintain_," may be the better kept, &c.]

[Footnote 62: The following is a copy of the original:

"_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, cum 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 illustrating the fact that, in those times, no special authority attached to the laws of the king:

"The Imperial Witenagemot was not a legislative assembly, 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 constitution 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 constitution 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 _shire_ (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 constituted but a small portion of the ordinary business transacted by the Imperial Witenagemot. The wisdom of the assembly was shown in avoiding unnecessary change. _Consisting principally 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 vassals 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 analogous to the proceedings thus adopted by the great council of Edward, the son of Alfred, the Anglo-Saxon king.

In this assembly, the king, the prelates, the dukes, the ealdormen, and the optimates passed 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 vassal prince or a vassal 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 assembly (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 Cumbria was unaffected by the vote of the Earl of East Angliae, if he chose to stand out against it. These dignitaries constituted a congress, in which the sovereign could treat more conveniently and effectually with his vassals than by separate negotiations. * * But the determinations of the Witan bound those only who were present, or who concurred in the proposition; and a vassal denying his assent to the grant, might assert 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 assessors, 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 Institutions 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 assembly, 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.]