libero tenemento suo, vel libertatibus, vel liberis consuetudinibus
suis_. Here it may be thought the word _liber homo_ should be restrained
to freeholders, because none others can be disseized; but the following
words, _libertatibus_ and _consuetudinibus_, lead, by their import, to
a more enlarged construction, and take in all the subjects; so that
_disseizetur_ must not be taken in its limited peculiar sense, but
rather in general for _deprivetur_. First, then, no freeholder shall be
disseized of his freehold, but by verdict of a jury, or by the law of
the land, as upon default, not pleading, or being outlawed. It was made
to prevent wrongful entries, by such as had right or pretended right to
the land, in order to avoid breaches of the peace and bloodshed, which
often ensued thereon; but it was not intended to take away the entry of
a person who had a right to enter given him by law, for that the law
could never construe a _disseizen_, which is a wrongful diverting of the
freehold.
To understand this, it is necessary to observe, that a man may have right
to the lands, and yet no right to enter upon them; or he may have both;
and in the last case it is no disseizen. If A disseizes B, he shall
never, by his own wrongful act, deprive B of the right of possession; but
he may of his own authority enter at any time, during A’s life, provided
he doth it without breach of the peace. But if A is dead, now the lands
being thrown by the law upon A’s heir, who had no hand in the wrong, and
who is answerable to the Lord Paramount for the services due from the
land, B has, by his own negligence, in not entring, or if he could not
enter, claiming, during A’s life, lost the right of possession; it is
transferred to A’s heir, and B must recover his right by a suit at law.
To see what is meant by _libertatibus_. It comprehendeth, in the first
place, the laws of the realm, that every man should freely enjoy such
advantages and privileges as these laws give him. Secondly, it signifies
the privileges that some of the subjects, whether single persons, or
bodies corporate, have above others, by the lawful grant of the king;
as the chattels of felons or outlaws, and the lands and privileges
of corporations. Hence any grant of the king, by letters patent to
any person, which deprives another subject of his natural right and
free liberties, is against this branch of _Magna Charta_, as are all
monopolies, which were so plentifully and so oppressively granted in the
reigns of Elizabeth and James the First, and here in Ireland, in that
of Charles the First. We must, however, except such monopolies as are
erected by act of parliament, or by the king’s patents, pursuing the
directions of an act made for that purpose[406].
Lastly, _Consuetudinibus_ takes in and preserves those local customs
in many parts of England, which, though they derogate from the common
law, are yet countenanced and acknowledged as part of the general system
of law. It also extends to any privileges which a subject claims by
prescription, as wreck, waif, stray, and the like[407].
The next clause is, _aut utlagetur_; of which having spoken already, I
shall pass on to the fourth, _aut exuletur_. No man shall be banished
out of the realm, _nisi per legem terræ_; for the _judicium parium_ is
out of this clause, there being no crime of which a man is convicted,
whose sentence is banishment. The _transportation_ now commonly used
for slighter felonies is not like it; for that is by the free consent
of the criminal, who desires to commute a heavier punishment for a
slighter. Now _per legem terræ_ a man may be exiled two ways, either by
act of parliament, as some wicked minions of our former kings were, and
particularly Richard the Second’s corrupt judges into Ireland; or by a
man’s abjuring the realm when accused of felony, that is, swearing to
depart out of the kingdom, never to return; which latter is long since
fallen into disuse. Coke says, that the king cannot send any subject
against his will to serve him out of the realm, and the reason is strong;
for if he could under pretence of service, he might tear him from his
family and country, and transport him to the remotest corner of the
earth, there to remain during the whole of his life[408]. But what shall
we say as to the military tenants, who by the very tenure of their grants
were obliged to serve the king in his wars out of the realm? Certainly,
whilst the feudal system retained its pristine vigour, and personal
service was required, they were an exception to this rule; but when
the commutation of _escuage_ was established, they were considered as
under it. Indeed their general readiness to attend their king’s service
in person, gave no occasion for this question’s ever being decided.
The famous case on this point was in Edward the Third’s reign; that
prince had made many grants to Sir Richard Pembrige, some for _servitio
impenso_, others for _servitio impendendo_. The king commanded him to
serve in Ireland, as his Lord-deputy, which he positively refused to do,
looking upon the appointment as no better than an exile; and for this
refusal the king seized all that had been granted to him _pro servitio
impendendo_; and the question came on in court, whether the seizure
was lawful. The judges clearly held the refusal lawful, and therefore
would not commit him to prison; but as to the seizure, in consequence
of the words _pro servitio impendendo_, without specifying where, they
thought it justified. But Coke says, “it seemeth to me that the seizure
was unlawful.” For _pro servitio impenso_, and _impendendo_, must be
intended of lawful service within the realm. The last time this act was
violated was in the reign of the misguided James the First, in the case
of the unfortunate Sir Thomas Overbury; who for refusing to go ambassador
to Muscovy, was by that prince sent to the Tower, in which place he
was afterwards barbarously poisoned; and for his murder the favourite
Somerset and his countess were both condemned to die[409].
LECTURE XLII
_Continuation of the commentary on Magna Charta._
The fifth branch of this statute is in very general terms; it is, _aut
aliquo modo destruatur_. “_Destruction_” is a word of very general
import. Coke, in the first place, explains it by saying, “no man shall
be fore-judged of life or limb, or put to the torture or death, without
legal trial.” But he shews, afterwards, by his instances, that it is much
more extensive: For he observes, that “when _any thing_ is prohibited,
_every thing_ is prohibited which necessarily leads to it.” Every
thing, therefore, openly and visibly tending to a man’s destruction,
either as to life, limb, or the capacity of sustaining life, is hereby
directly forbid: So that, _torture_, as it endangers life and limbs, and
may prevent a man from earning his livelihood, is, on all these three
accounts, unlawful, though common among all other nations of Europe, who
have borrowed it from the old Roman law with respect to slaves; a plain
indication in what light the introducers of it looked on their subjects.
It cannot be said that this hath never been violated in England in
arbitrary times; (as what nation is there, whose fundamental laws have
not been, on occasion, violated?) yet, in five hundred years, I do not
believe the English history can afford ten instances[410].
For the same reason, “judging a man, either in a civil or criminal cause,
without calling him to answer and make his defence,” is against this
provision. So likewise is “the not producing the witnesses, that the
party may have an opportunity to cross-examine them,” I believe, if they
may be had. For in the case of death, or absence in a foreign country,
that they cannot be produced, there is an exception, for very necessity’s
sake; and in that case, the examination of such person, taken before a
proper magistrate, is good evidence, tho’ thereby the party loses the
cross-examination or information against the murderer. But whenever this
happens, the jury should consider that the party has lost the benefit
of the cross-examination, and have that in their contemplation, when
they are preparing to give their verdict. Directly contrary to this
fundamental law, and to common justice, was the trial of Sir Walter
Raleigh, conduced by Coke, attorney-general, upon the depositions of
people who might be brought face to face. For, notwithstanding the
perfect knowledge of that great lawyer in the laws of England, he was a
most time-serving minister of the crown. The people of these nations are
much indebted to him for his excellent writings on the law, and more for
demonstrating the antient right of the people of England to the liberties
they claimed: But, if we consider that he was then in disgrace at court,
I fear this panegyric must be confined to his behaviour while a judge,
which was without reproach; nor did he hesitate to forfeit the favour of
the crown, by opposing incroachments on the law of England.
As _tending to destruction_; it is likewise unlawful to amerce or fine
a man convicted of a crime, beyond what he has a possibility of paying;
for that would tend to perpetual imprisonment, and disabling him from
maintaining himself and family. Neither is it lawful, tho’ a man be
indicted of treason or felony, for the king to grant, or even to promise,
the forfeiture of his lands or goods; for this would be throwing a
temptation in the way of others to suborn witnesses to his destruction.
These I mention, only as particular instances, to open the import of this
law; but the words are, _aliquo modo destruatur_, taking in “every thing
that directly tends to destruction.” And it must be observed that these
words, _aliquo modo_, are not in any other branch of this act.
I come now to the last clause of this first part, _nec super eum ibimus,
nec super eum mittemus, nisi per legale judicium parium suorum, aut per
legem terræ_. I observed before, from the words here being in the first
person, that they refer to the suit of the king; and they relate not
only, by the latter words, to a legal trial, as to matter and form, but
also to a trial in a proper and legal court. The words _nec super eum
ibimus_ belong to the King’s Bench, where the suits of the king, the
_placita coronæ_, are properly handled, and where the king is always
supposed to be present. The words _super cum mittemus_ refer to other
courts sitting for the same purposes, as Justice of gaol-delivery, for
instance, under the king’s commission. But when those words are coupled
with the following ones, _per legem terræ_, they carry a farther import;
not only that the courts, trying the king’s causes should proceed
according to the law of the land, but that the courts themselves should
be such as the _lex terræ_ authorizes; that is, either the common law,
from time immemorial, or acts of parliament. So that the king hath no
power, of his own authority, to form new criminal courts, as he may civil
ones. In some cases, he appoints, indeed, the judges of the courts of
common law, and issues commissions, and appoints the commissioners in
criminal courts authorized by parliament; but no farther doth his power
extend.
To this it may be objected, that the king may create a county palatine,
and consequently new criminal courts; but let this be considered:
Counties, and duchies, such as we call _palatine_, were, I may say,
indeed of the essence of a feudal kingdom, as ours originally was; that
is, the king might dismember a part of his kingdom from the immediate
subjection to the crown, transfer a subordinate degree of the legal
rights to a subject; and when a county of that kind was created, without
saying any more, all the courts, not new ones, but the same that were
at common law through the whole kingdom, followed as incidents; in
the same manner as by erecting a new county, not palatine, it had its
county-court, and the sheriff’s tourne. These are not erecting, properly
speaking, new courts, so much as bringing the old ones home to the doors
of the people of that district.
As I observed at the beginning, this law naturally divides itself into
two parts, the first ending at the words _per legem terræ_. Having made
such observations as have occurred to me as necessary or material for
the understanding thereof, I now proceed to the latter part of this
statute, which runs in these words: _Nulli vendemus, nulli negabimus,
aut deferemus justitiam, vel rectum_. Some have imagined that, by these
words, in the disjunctive, are meant common law and equity; but courts
of equity, and proceedings in cases of equity in those courts, were
not known in times so early; and the legal signification of _rectum_
in old statutes, and law-books, is either the right that a man hath to
a thing, or the law of the land, the means of attaining the possession
and enjoyment of that right; and in that sense it is here to be taken;
as Coke says, _justice_ is the end, _rectum_ the means, namely, due
process of law; neither of which is to be sold, denied, or delayed to the
subject. In order to understand this, it will be necessary to point out
some of the mischiefs that were before this act, which is the surest way
to expound the meaning of any law[411].
For this purpose it is to be remembered, that, in the Saxon times, almost
all suits, except between grandees, were expedited in the county-courts.
I have observed before, that the Conqueror and his successors discouraged
these, and encouraged suits in the _Aula Regis_, or king’s courts; and
that the subjects were fond of suing there; but still it was a matter of
favour, where the cause properly belonged to the country jurisdictions,
and could not be demanded as a right. As a matter of favour, it might
be denied by the king, or his chancellor, who was the issuer of the
original writs, unless a sum of money was paid, such as they demanded.
This was _selling_ justice. Or, if the person to be sued was a favourite
of the king, or chancellor, the writ might be denied; this was _denying_
justice. Or, if it was granted, as the proceedings were _ex gratia_,
the party might, _ad libitum_, be delayed by the judges, or the cause
might be stopped by order of the king, and this was the _deferring_ of
justice, meant by this act, which was intended for the giving every
subject a right, in all cases, and against all persons, to have justice
administered to him in the king’s courts. The chancellor now is hereby
obliged instantly to issue all original writs, and the judges of the
several courts, where causes depend, to issue the proper judicial ones
without fee or reward. This, however, is not so to be understood, as to
prohibit the moderate and accustomed fees, which, from time immemorial,
have been paid to the officer, for his trouble in making them out,
or to the judge, for putting the seal; for these are a part of their
livelihood, but only those arbitrary sums which were before taken, and
which the state properly calls the _selling_ of justice. So likewise
the judges are obliged, in every cause before them, to proceed with
expedition, and to suffer no delays, but such as the law allows, and
requires, for giving each party an opportunity of defence, and of laying
his cause fully before the court.
However, notwithstanding this act, the evil was often repeated, and many
suits stopped by the command of the king, and others, as appears by four
several acts of parliament, made to enforce and explain this one, the
substance of which acts, is summoned by Coke in these words: That “by
no means common right, or common law, should be disturbed or delayed;
no, though it be by command, and under the great seal, or privy seal,
order, writ, letters, message, or commandment whatsoever, either from the
king, or any other; and that the justices shall proceed, as if no such
writs, letters, order, message, or other commandment, were come to them.”
However, this is not to be understood so strictly, but that the king may
stop his own civil suit that he hath instituted for his own benefit, as
a _capias_ for a fine, because _quisque juri suo renunciare potest_;
and this stoppage, in truth, is for the benefit of the subject. It is
otherwise in criminal accusations, unless he can shew good cause to the
court to put it off. For every man accused has a right to be brought to
his trial[412].
Neither are legal protections within the prohibition of this law; these
were granted to stop suits against any man that was personally employed
in the service of the king, and were founded on this presumption, that
such service was for the public benefit, to which all private regards
must give way. But then these protections, must be legal ones, such,
and none other, as are found in the Register, the antientest book of
the law, and not ones newly devised, and for new-fangled causes. These
protections, however, were greatly abused in the sequel; favourites,
and their dependants, frequently obtaining them, to hinder others of
their just rights, under pretence of serving the king; where in truth,
there was no such thing. It is therefore recorded, highly to the honour
of Elizabeth, that she first discontinued the granting them; and her
laudable example has been followed by all her successors. I shall,
therefore, not dwell upon them, it being sufficient to have mentioned
that such things there are, or at least _were_ in our law.
I hope the prolixity with which I have treated of _this_ chapter of
_Magna Charta_, the care I have taken to open the true meaning and force
of every word in it, and the many tacit exceptions each part of it is
subject to, will be excused, when it is considered, that it not only
contains great variety of matter, but is the most important, and of
more general consequence and concern, than any other law of the land.
It is the guardian of the life, the liberty, the limbs, the livelihood,
the possessions, and to the right to justice of every individual, and
therefore it concerns every man to know it, and fully to understand it.
The thirtieth chapter is in favour of commerce and merchant strangers.
Certain it is, that, in antient times, the kings of Europe, and their
military subjects, looked on merchandize as a dishonourable profession;
as did the Romans also, in the military ages of that republic. By the
old laws of England, no merchants alien were to frequent England, except
at the four great fairs; and then were permitted to stay but forty days
at a time, that is, an hundred and sixty days in the whole year. But now
this act has altered the former law, and is very favourable to persons
engaged in commerce, who before were little better than at sufferance. It
commands, that all merchants, namely, merchant strangers, whose sovereign
is in amity with the king, unless publicly prohibited, that is, says
Coke, by Parliament, which is true, as the law hath since stood, (but
before, I conceive the king himself had the power to prohibit) shall
have safe and sure conduct in seven things. First, to depart out of
England without licence, at their will and pleasure. Secondly, to come
into England in the same manner. Thirdly, to continue in England without
limit of time. Fourthly, to go and travel through any part of England at
their pleasure, by land or water. Fifthly, free liberty to buy and sell.
Sixthly, without any manner of evil, tolls or taxes; but only, Seventhly,
by the old and rightful customs, that is, by such duties as were of old
time accustomed to be paid, and are therefore called _Customs_. By this
law the king is prohibited from laying any new taxes on the imports or
exports of merchant strangers. And as now they gained a general licence
to continue in the realm, from hence arose that privilege of merchant
strangers to take leases for years, of houses for their dwelling, and
warehouses for their goods, which they continued in England; for,
regularly, all acquisitions of aliens, in lands or tenements, belong to
the king[413].
The second branch of this act is a very equitable one. It concerns
merchant enemies, or rather such merchant strangers as came in friends,
and afterwards became enemies, by a war’s breaking out between the
sovereigns while they are in England. It provides that, on a war’s
so breaking out, the persons and effects of such merchants should be
seized, and safely kept till it should be known how the English merchants
had been treated in the enemy’s country; and that, if they were well
treated, these should be so too. This regulation, however, is not put
in use; because, by the treaties made between the sovereigns of Europe,
it is stipulated, that, on the breaking out of war, the merchants in
each others country should have a certain number of days to withdraw
themselves and their effects. But if a merchant enemy comes into the
country, after war declared, he is to be treated as an enemy; to which,
by the old law, now antiquated, there was a very humane exception, that
of persons driven into England by stress of weather.
LECTURE XLIII.
_Continuation of the commentary on Magna Charta._
As I have dwelt on the twenty-ninth chapter of _Magna Charta_ so long,
and treated of it and every part of it so minutely, I shall, in this
lecture, dispatch the remaining part thereof with more expedition.
Indeed, of the thirty-first I would have said no more, than merely to
observe, that it related to the military tenures now abolished, were it
not proper to remark, that it was made to enforce the old feudal law,
then the law of England, with respect to landed estates, and to restrain
John’s successors from the violences he had introduced in favour of the
royal prerogative, to the detriment of the immunities and privileges of
the subjects. It has been already observed in these lectures, that by the
feudal law, especially as established by the Conqueror in England, the
king was very amply provided for with a landed estate, to support his
dignity and expences, which was at that time looked on all over Europe
as unalienable, except during the life of the king in being; and that
the rest of the land was to be the property of the free subjects of the
realm, subject to the services imposed, and the other consequences of his
seignory as feudal lord.
One of these consequences was the escheat on the failure of heirs, either
by there being none, or by the blood being corrupted by the commission
of felony, which in law amounted to the same thing; as no son, uncle,
nephew, or cousin, could by law claim as heir by descent to a person
attainted. For the legal blood, the title to the inheritance, failed in
him the last possessor, by his breach of fealty; and every heir lineal or
collateral by the law of England being obliged to claim as heir to the
person last seized, must be excluded, when the legal blood inheritable
failed in the last possessor.
In consequence of these escheats, which often happened in those times,
both by corruption of blood, and failure of heirs inheritable, (for,
as I have observed before, the granting _feuda antiqua ut nova_ was
introduced only by Henry the Second, the father of John, and were not at
this time become universal, as they since have been) John introduced this
new maxim, that when an earldom or barony fell to the crown by escheat,
he held it in the right of his crown, as it was originally derived from
thence; and consequently, that the tenants of the former lord, being
now, instead of _intermediate_, become _immediate_ tenants of the crown,
held of him _in capite_, as it was called; that is, that he, by this
escheat, obtained privileges over the tenants of the former lord, which
he, the former lord, never had, or could have, but which he claimed as
king, _in jure coronæ_. These privileges were many in number; but it will
be sufficient to mention only two of them, to shew into how much worse
a state the tenants of these escheated lordships were thrown, by being
considered as tenants _in capite_.