An Essay On The Trial By Jury - Lysander Spooner (epub e ink reader .TXT) 📗

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 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 82

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: [31]

 

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.

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 83

Will Yon 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?" Ect.,  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 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 84

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 Eriglish 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 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 Pg 85

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 [32] 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,