An Essay On The Trial By Jury, Lysander Spooner [ebook reader browser .txt] 📗

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 (The Oaths Of Judges) Pg 86

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;" [28] 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."

 

Where 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

Oftentimes 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. [29]

 

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,  Ect.,  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 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 (The Oaths Of Judges) Pg 87

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." [30] 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. L. (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 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 5 (The Oaths Of Judges) Pg 88

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.

 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 6 (The Coronation Oath) Pg 89

 

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 

Chapter 3 (Additional Proofs Of The Rights And Duties Of Jurors) Section 6 (The Coronation Oath) Pg 90

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