protection, and indeed it was hard to charge him with a breach of Henry’s
charter, of which, though copies had been lodged in every cathedral and
great abbey in England, yet so carefully were they destroyed, that not
one appeared. At length archbishop Langton furnished them with one, which
had escaped the general calamity; and this the associated barons, who
had determined to restrain John, and recover their liberties, made the
basis of their demands, and swore to demand, and if refused, to vindicate
with the sword, at a meeting they had at Edmundsbury under pretence of
devotion. Accordingly, they waited on the king in a military dress, and
made their demands; but he, seeing they were only a party among the
nobles, and not imagining the rest were of the same sentiments, not
only refused, but with haughtiness insisted they should renounce them,
by giving under their hands and seals, that they would never make the
like demand on him or his successors. But his eyes were opened when he
found scarce two or three of those that were with him would comply. He
had recourse to procrastination, and promised them satisfaction at the
latter end of Easter. In the interim he exacted a new oath of allegiance
from his subjects; a feeble precaution; for none refused it, or thought
themselves precluded by that act of duty from vindicating their rights
in what manner they best might. To secure the clergy, he gave them a
charter, confirming their immunities, and the entire freedom of their
elections; and yet a great multitude continued zealous for the liberty
of the subject against him; but his main dependance was on religion. To
render his person sacred, he assumed the cross, as if he intended for
the holy war, and implored the protection of his Holiness, to whom the
discontented barons also represented the justice of their pretensions.
Innocent, in appearance, received them favourably, advised them to
represent their hardships in a decent and humble manner to the king, in
which case he would interpose in favour of all their just and reasonable
petitions; but annulled their association, and forbad them to enter into
any new one for the future.
The barons, who sent to the Pope rather out of respect than any
expectation of favour, proceeded in the method they began. They and their
vassals assembled in array, in such numbers as to compose a formidable
army; and when they had particularly specified their demands, and
were refused, they proceeded to attack him, by reducing his castles.
Against himself, as being under the cross, they made no attempt. On
this occasion, archbishop Langton, who was at the bottom of the whole
confederacy, outwitted John; who, as they had disobeyed the Pope, was
impatient to have them excommunicated, and this the Pope promised to
do as soon as the foreign troops, which the king had brought over for
his defence, had quitted the kingdom; but when they were gone, he broke
his engagement, so that John, left defenceless, was obliged to appoint
four nobles to treat with the revolted lords; and, upon conference, some
points they had insisted on before being given up, the liberties of the
nation were settled, as contained in the two charters of _Magna Charta_,
and _Charta de Foresta_[388].
The manner of obtaining these charters, and the right the people have
to the liberties contained in them, have been the subject of much
controversy between the favourers of arbitrary power and the assertors
of freedom; the one, contending that they were the fruits of rebellion,
extorted by force and fraud, from a prince unable to resist, and
therefore revocable by him or his successors; and the others, that they
were the antient privileges of the nation, which John had, contrary to
his coronation-oath, invaded, and which they therefore had a right to
reclaim by arms. That they were obtained by force, is undoubted, and
that John and many of his successors looked upon them, therefore, as of
no validity, is as clear, even from the argument lord Coke brings for
their great weight, their being confirmed above twenty times by act of
parliament. To what purpose so many confirmations, if the kings had not
thought them invalid, and had not, on occasions, broke through them; and
were it as clear that they were not the antient rights of the people,
it must be owned they were extorted by rebellion. But that they were no
other than confirmations, appears very plainly from the short detail I
have heretofore given of the constitution and spirit of the monarchy of
the Saxons, and all other northern nations.
As to any new regulations introduced in them, as some there are, they
are only precautions for the better securing those liberties the people
were before entitled to, and it is a maxim of all laws, that he who has a
right to a thing, hath a right to the means without which he cannot enjoy
that thing.
The friends, therefore, to absolute power, sensible that the original
constitution is against them, choose to look no farther back than
the Conquest. Then, say they, the Saxon government and laws were
extinguished, the English by the Conquest lost their rights, the
foreigners had no title to English liberties, and the Conqueror and his
son William acted as despotic monarchs. Therefore, their successors
had the same right, and it was treason to think of controuling them.
But how little foundation there is for this doctrine, may appear from
what I observed on the reign of the Conqueror. He claimed to be king on
the same footing as his predecessors; he confirmed the Saxon laws, and
consequently both Saxons and foreigners, when settled in the kingdom,
had a right to them. If he oppressed the English, that oppression did
not extend to all; and to those it did, it was not exercised as upon
conquered slaves, but as upon revolted rebels. But, for argument sake,
to allow that the English became slaves, and that the foreign lords
had no right to the Saxon privileges, both which are false, how came
the king to be despotic sovereign over them? They were partly his own
subjects, freemen, according to the feudal principles, who served him
as volunteers, for he had no right to command their service in England;
or volunteers from other princes dominions, and to say that freemen and
their posterity became slaves, because they are so kind as to conquer a
kingdom for their leader, is a most extraordinary paradox.
But William the Conqueror, in some instances, and his son in all, acted
as despotic princes; therefore they had a right so to do. I answer,
the triumvirs proscribed hundreds of the best Romans, therefore they
had a right. It is as unsafe to argue from matter of fact to matter of
right, as from matter of right to matter of fact. It is as absurd to
say, Tarquin ruled absolutely, therefore the Romans were rightfully his
slaves, as to say the Romans had a right to liberty under him, therefore
they were free.
But it may be said, the people quietly submitted, and new rights may be
acquired, and new laws made, by the tacit consent of prince and people,
as well as by express legislation. I allow it where the consent is
undoubtedly voluntary, and hath continued uninterrupted for a long space
of time; and how voluntary this submission was, we may judge from the
terms they made with Henry the First, before they suffered him to mount
the throne. Besides, there are some points of liberty, essential to human
nature, that cannot, either by express or tacit laws, be given up, such
as the natural right that an innocent man has to his life, his personal
liberty, and the guidance of his actions, provided they are lawful, when
the public good doth not necessarily require a restraint. In short, never
was there a worse cause, or worse defended; and this maxim was what
influenced the conduct of the Stuarts, and precipitated that unhappy
house to their ruin.
John, who entertained the same sentiments, had no resource to recover
his lost rights, as he thought them, but the assistance of the Pope, and
an army of foreigners. The first very cordially espoused his interest.
He was provoked that he, who had humbled kings, should be controuled by
petty lords, and that by these privileges he should be prevented from
reaping that golden harvest he expected from England. He annulled the
charters, commanded them to recede from them, and, on their disobedience,
excommunicated them, first in general, and then, by name.
About the same time arrived an army of veteran foreigners, that came
to assist John, who had, in imitation of the Conqueror, distributed to
them the estates of the barons. With these and a few English lords,
he took the field, and ravaged the country with a more than Turkish
barbarity. The confederate barons saw the liberties they had contended
for annulled, their lives and estates in the most imminent danger, and,
in a fit of despair, invited Lewis, prince of France, to the crown, who,
bringing over an army, saved them from immediate destruction. However,
this strengthened John. It was not for any to stand neuter. Few chose to
embark in an excommunicated party, and many, who saw slavery unavoidable,
and nothing left but the choice of a master, preferred their countryman
for a king to a foreigner. The loss of liberty now seemed certain, which
ever prevailed; when the haughtiness of Lewis, and his want of confidence
in the English noblemen who joined him, concurring with the death of
John, and the innocence of his infant son, providentially preserved the
freedom of England.
LECTURE XXXVIII.
_The minority of Henry III.—Ecclesiastical grievances—The
dispensing power—The canon law—Confirmation of Magna Charta—A
commentary on Magna Charta, in so far as it relates to what now
is law._
John left his minor son under the guardianship of the earl of Pembroke,
a nobleman of great abilities, and the strictest integrity. The first
step he took for the benefit of his pupil, was the confirmation of the
charters, and the next was a negotiation with the revolted lords, who
began to be discontented with the prince of France; which succeeded
so happily, that in a short time he brought them all over with very
little bloodshed, and Lewis was obliged to quit the kingdom. Peace being
re-established, the regent applied himself with all diligence to restore
the peace of the kingdom, and justice to her regular course: And had he
lived long enough to form the conduct and principles of the young king,
England never had a fairer prospect of happiness; but he soon dying, and
his successors being men of a different stamp, such principles were sown
in the monarch’s mind, as, in the event, produced bitter fruit both to
him and the whole kingdom.
This reign was as calamitous as the preceeding one, and rather more
shameful; and what added to the misfortune, it lasted three times as
long. As soon as Henry came of age, he revoked _Magna Charta_, as being,
an act of his nonage, soon after he confirmed it, then broke it, then
confirmed it by oath, with a solemn excommunication of all that should
infringe it; then he obtained from the Pope a dispensation of his oath,
and broke it again. And thus he fluctuated for fifty years, according as
his hopes or years prevailed. However, in general, the charter was pretty
well observed. The great point it was infringed in, was the levying
money without the parliament, and in this he frequently prevailed, being
assisted by his Lord Paramount, the Pope. They joined in levying taxes,
and then divided the spoil between them. Indeed, their Holinesses had,
upon each occasion, by much the greater share; for they not only fleeced
the clergy separately, but drew vast sums from the king, on pretence of a
foolish project of making his younger son king of Sicily; all which they
squandered on their private occasions.
In this reign they introduced the practice of provisorship, against
which so many acts of parliament have been made. It went on this maxim,
That the Pope was universal pastor of the church, and consequently sole
judge who should be his deputy in any particular place. The inference
necessarily followed, that the rights of patronage to livings, whether in
a Bishop or lay patron, were, strictly speaking, no rights at all, being
such only where the Pope did not chuse to interfere. But this privilege
would have been of little significance, if they could act only in the
vacancy of a living; for it would generally have been filled up before
he could have notice. Bulls of provisorships were, therefore, invented.
These were charters of the Pope, directed to the bishop, acquainting
him, that he had provided for such a person, by appointing him to such
a benefice, when it should become vacant, or the first benefice of such
a value that should fall; strictly forbidding the Bishop to admit any
other person, upon any account whatsoever. Sometimes the person provided
for was not named; but notice was to be given when the vacancy happened.
In process of time a number of livings were resolved in the same bull;
nay, one went so far as to forbid any living that should fall to be
filled, till the Pope had provided for three hundred persons. Such were
the delightful consequences of John’s homage, and of England becoming
St. Peter’s patrimony; so that the monkish historians tell us that Rome
sheared all Europe; but in England they flayed off the skin. An account
was taken at one time of the value of English benefices possessed by
Italian priests, non-residents, and it was found to exceed the ordinary
revenue of the crown. All these bulls concluded with a non obstante, that
is, notwithstanding any laws, custom, privilege, right or patronage,
or any thing else whatever; and this hopeful precedent Henry the Third
adopted in his charters, thereby, if he could not repeal, at least making
ineffectual the laws of the land; and thus began the king’s claiming a
_dispensing power_ over the laws[389].
In this meridian of the Pope’s power was the canon law introduced into
England, and it soon began to usurp considerably on the civil courts;
insomuch that, had not the common law judges exerted themselves to check
the ecclesiastical court by prohibitions, which they did even in this
reign, it would have gained the same ascendant that it has in the Pope’s
territory.
The latter end of this reign was filled with a succession of troubles,
occasioned by the repeated breaches of the charters, and fomented by
the ambition of some of the great nobles; however, in the end, the king
prevailed, by the assistance of his son; but it was found expedient,
even in the midst of victory, in order to prevent future convulsions,
to establish the liberties of England, by confirming _Magna Charta_;
and they have ever since stood their ground. I shall therefore proceed
briefly to speak to _Magna Charta_, and in so doing shall omit almost all
that relates to the feudal tenures, which makes the greatest part of it,
and confine myself to that which now is law.
The first chapter of _Magna Charta_, as confirmed in the 9th year of
Henry, which is that now in force, and differs from that of John in some
omissions, concerned the freedom of the church, in which was principally
included the freedom of elections to Bishopricks, which, since the
reformation, has been taken away. I shall, therefore, proceed to those
that concern the laity; the five next are feudal, and the seventh is
concerning widows. It first gives them free liberty to marry or not;
whereas, before, such as were called the _king’s widows_, that is,
those who held lands, or whose husbands held lands of the king, had
been obliged to pay for license to marry if they had a mind, or were
distrained to marry, if they had no mind, which it is unnecessary to say
was a grievous oppression. It restrains the taking any thing from the
widow for her dower, or for her own land, which her husband had held in
her right. It provides for her _quarantine_, that is, gives her leave to
stay forty days in her husband’s house, unless she had dower assigned to
her before, and within that time orders the third part of her husband’s
land to be assigned her by the heir, as her dower; and that, in the
interim, she should have reasonable estovers[390].
The next is in favour of the _king’s debtors_, and their securities. By
the old law, the king’s profit was so highly favoured, that he could, to
satisfy his debt, seize the chattels or extend, that is, take the profits
of the real estate of his debtor, at his pleasure; or he might, in the
first instance, come on the security, without attacking the principal
debtor. For remedy hereof, it forbids the king, or any of his officers,
seizing the land, while the debtor’s personal chattels are sufficient.
It forbids, also, the distraining the securities, while the debtor’s
chattels were sufficient. If they were not, the king had the option
either to seize the land of the debtor, or distrain the securities; and
if the latter was done, it provides, that the securities should have
the land, until they are reimbursed. Immediately after this, in king
John’s charter, followed the law prohibiting the king from levying any
talliage or tax on the socage tenants, or on boroughs, without assent
of parliament, which is here omitted; and this king and his son Edward
asserted and exercised the right; but the last was at length obliged
to give it up, in the famous statute _de tallagio non concedendo_, and
not till then were these ranks of the people entirely emancipated. This
omission for a time rendered illusory the next, the ninth chapter, which
provides that the city of London and all the other cities, boroughs, and
ports, should enjoy all their ancient liberties and customs; for these
would be of little use whilst arbitrary taxation remained. The tenth is
in affirmance of the common law, that no person should be distrained for
more rent or services than he owed out of the land. If he was, he had
a double remedy, either by _a suit in replevin_, or by the writ called
_ne injuste vexes_. The next is for fixing the court of Common Pleas,
of which I spoke already. The twelfth was for the ease of the people,
by taking assizes in the country. But those actions are out of use now.
The thirteenth is concerning assizes too. I hasten therefore to the
fourteenth that treats of _amerciaments_.
Amerciaments come from the word _mercy_, and are so called from the words
in the record, _sit in miserecordia pro falso clamore suo_, and were
properly, though the word hath been since extended, what a plaintiff
or defendant that had troubled the king’s courts should pay by way of
punishment for maintaining an unjust suit; whereas _fines_, to which they
bear a resemblance, and with which they have sometimes been confounded,
were for offences, and assessed by the court; as were amerciaments also
sometimes, and very grievously, though entirely against law. This act
restores the common law; orders the amerciaments to be proportioned to
the nature of the case, and also, in regard to the man’s circumstances,
so that he should not be ruined thereby; that no freeholder should be
amerced in so heavy a manner as to destroy his freehold; no merchant, his
merchandize; no villain, his carts, whereby he would be unable to do his
lord’s services; no ecclesiastic according to the value of his benefice,
but only according to his lay property. And that this might be constantly
observed, the amerciaments were to be asserted, or settled by the man’s
peers. It may be asked, what remedy had the man, who was too severely
amerced by his peers? On this act was grounded the writ of _moderata
miserecordia_, whereby this amerciament may be tried by another jury, and
moderated.
The fifteenth provides, that none should be distrained to repair bridges,
or landing places, but who are bound by their tenures or custom. The
sixteenth for the free navigation in rivers, and unloading of goods.
The seventeenth takes away the power of trying pleas of the crown
from sheriffs, constables and coroners, and other inferior officers;
a very necessary law, upon account of the great value of the life of
an individual, especially as none but the king’s courts could give the
benefit of clergy. However, sheriffs and coroners can take _indictments_;
for that is not _trying_, but bringing the matter into a method of
trial. The eighteenth concerns debts due to the king where his debtor
is dead. By this law, the first duty of executors is to pay the debts
of the deceased; those of the highest nature, not as to _value_, but in
_quality_, in the first place, then the lower ones: and if the effects
were not sufficient, it was in their option to pay one creditor of the
same nature without another, so that they observed the rule of not
paying the lower debtor before the higher. But the king, be his debts of
what nature they would, by his prerogative, had the preference of all
creditors, and by colour hereof his officers often seized and embezzled
the effects of the deceased, to the prejudice of other creditors and
legatees. This orders the sheriff to attach and value the goods by a jury
of twelve men, to the value of the debt, which were to remain unremoved,
till the king was paid; and then the whole, or, if not, the overplus, to
be restored to the executors. The two next are feudal. The twenty-first
relates to purveyorship, which has been abolished.
The twenty-second relates to the king’s right to the lands of felons. On
which there is something curious to be observed. By attainder of felony,
the goods and chattels of the felon are forfeited to the king, and the
land to the lord from whom they were holden; but in case of treason, both
were forfeited to the king. Such was the feudal law; but by the law of
England, in order to deter persons from committing felony, and to make
the lords more careful what kind of tenants they chose, the king had
an interest in the land of felons; not for his own benefit indeed, but
for the terrifying by example. He had a right to commit waste in them,
to cut down the trees, to demolish the houses and improvements, and to
plow up the meadows; and for this purpose he was allowed, by common
law, a year and a day. To prevent this destruction, the lords, to whom
the land escheated frequently, by a fine, bought off the king’s right
of waste; but if they did not, his officers would take the profits for
the time, and then hold it longer, till they had committed the waste.
This act prohibits the retaining the land longer than a year and a day,
and directs that then it should be restored to the lord. This new law
was certainly intended for the public good, to prevent this malicious
wasting, which the king’s officers would be sure to commit, if they were
not properly, as they thought, considered; and to give the king, in
lieu of the waste that he had a right to make, a lawful profit, which
his officers had unlawfully, to their own use, we may be sure, extorted
before. It gives the custody of the lands for that time, and consequently
the profits. But observe the consequence.