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 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.
Public-domain text, read in full here on John Shaqi.
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