An Essay on the Trial by Jury Part 10

_Lord Bacon_ was sentenced by the House of Lords, (1620,) _no mention being made of the a.s.sent of the king_. The sentence is in these words:

"And, therefore, this High Court doth adjudge, That the Lord Viscount St. Albans, Lord Chancellor of England, shall undergo fine and ransom of 40,000 pounds. That he shall be imprisoned in the tower during the king's pleasure. That he shall forever be incapable of any office, place, or employment in the state or commonwealth. That he shall never sit in Parliament, nor come within the verge of the court."

And when it was demanded of him, before sentence, whether it were his hand that was subscribed to his confession, and whether he would stand to it; he made the following answer, which implies that the lords were the ones to determine his sentence.

"My lords, it is my act, my hand, my heart. _I beseech your lordships to be merciful to a broken reed._"--_1 Hargrave's State Trials_, 386-7.

The sentence against Charles the First, (1648,) after reciting the grounds of his condemnation, concludes in this form:

"For all which treasons and crimes, _this court doth adjudge_, that he, the said Charles Stuart, as a tyrant, traitor, murderer, and public enemy to the good people of this nation, shall be put to death by the severing his head from his body."

The report then adds:

"This sentence being read, the president (of the court) spake as followeth: 'This sentence now read and published, is the act, sentence, judgment and resolution of the whole court.'"--_1 Hargrave's State Trials_, 1037.

Unless it had been the received "_law of the land_" that those who tried a man should fix his sentence, it would have required an act of Parliament to fix the sentence of Charles, and his sentence would have been declared to be "_the sentence of the law_," instead of "_the act, sentence, judgment, and resolution of the court_."

But the report of the proceedings in "the trial of Thomas, Earl of Macclesfield, Lord High Chancellor of Great Britain, before the House of Lords, for high crimes and misdemeanors in the execution of his office,"

in 1725, is so full on this point, and shows so clearly that it rested wholly with the lords to fix the sentence, and that the a.s.sent of the king was wholly unnecessary, that I give the report somewhat at length.

_After being found guilty_, the earl addressed the _lords_, for a _mitigation of sentence_, as follows:

"'I am now to expect your lordships' judgment; and I hope that you will be pleased to consider that I have suffered no small matter already in the trial, in the expense I have been at, the fatigue, and what I have suffered otherways. * * I have paid back 10,800 pounds of the money already; I have lost my office; I have undergone the censure of both houses of Parliament, which is in itself a severe punishment,'" &c., &c.

On being interrupted, he proceeded:

"'My lords, I submit whether this be not proper in _mitigation of your lordships' sentence_; but whether it be or not, I leave myself to your lordships' justice and mercy; I am sure neither of them will be wanting, and I entirely submit.' * *

"Then the said earl, as also the managers, were directed to withdraw; and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be committed to the custody of the gentleman usher of the black rod; and then proceeded to the consideration of what _judgment_," (that is, _sentence_, for he had already been found _guilty_,) "to give upon the impeachment against the said earl." * *

"The next day, the Commons, with their speaker, being present at the bar of the House (of Lords), * * the speaker of the House of Commons said as follows:

"'My Lords, the knights, citizens, and burgesses in Parliament a.s.sembled, in the name of themselves, and of all the commons of Great Britain, did at this bar impeach Thomas, Earl of Macclesfield, of high crimes and misdemeanors, and did exhibit articles of impeachment against him, and have made good their charge. I do, therefore, in the name of the knights, citizens, and burgesses, in Parliament a.s.sembled, and of all the commons of Great Britain, demand _judgment_ (_sentence_) of your lordships against Thomas, Earl of Macclesfield, for the said high crimes and misdemeanors.'

"Then the Lord Chief Justice King, Speaker of the House of Lords, said: 'Mr. Speaker, the Lords are now ready to proceed to judgment in the case by you mentioned.

"'Thomas, Earl of Macclesfield, the Lords have unanimously found you guilty of high crimes and misdemeanors, charged on you by the impeachment of the House of Commons, and do now, according to law, proceed to _judgment_ against you, which I am ordered to p.r.o.nounce.

Their lordships' _judgment_ is, and this high court doth adjudge, that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty thousand pounds unto our sovereign lord the king; and that you shall be imprisoned in the tower of London, and there kept in safe custody, until you shall pay the said fine.'"--_6 Hargrave's State Trials_, 762-3-4.

This case shows that the principle of Magna Carta, that a man should be _sentenced only_ by his peers, was in force, and acted upon as law, in England, so lately as 1725, (five hundred years after Magna Carta,) so far as it applied to a _peer of the realm_.

But the same principle, on this point, that applies to a peer of the realm, applies to every freeman. The only difference between the two is, that the peers of the realm have had influence enough to preserve their const.i.tutional rights; while the const.i.tutional rights of the people have been trampled upon and rendered obsolete by the usurpation and corruption of the government and the courts.

SECTION V.

_The Oaths of Judges._

As further proof that the legislation of the king, whether enacted with or without the a.s.sent 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 a.s.sent 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 pa.s.sed by the king two years afterwards, which fully explains this oath, as follows:

"Edward, by the Grace of G.o.d, &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 G.o.d, and ease and quietness of our subjects, as to save our conscience, and for to save and keep our said oath, by the a.s.sent 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.

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 ill.u.s.trious 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 _a.s.sume_ 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 const.i.tutional 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.)