PROBABLY no political compact between king and people was
ever
entered into in a manner to settle more authoritatively the
fundamental law of a nation, than was Magna Carta. Probably no
people were ever more united and resolute in demanding from
their
king a definite and unambiguous acknowledgment of their rights
and liberties, than were the English at that time. Probably no
king was ever more completely stripped of all power to maintain
his throne, and at the same time resist the demands of his
people, than was John on the 15th day of June, 1215. Probably no
king every consented, more deliberately or explicitly, to hold
his throne subject to specific and enumerated limitations upon
his power, than did John when he put his seal to the Great
Charter of the Liberties of England. And if any political compact
between king and people was ever valid to settle the liberties of
the people, or to limit the power of the crown, that compact is
now to be found in Magna Carta. If, therefore, the constitutional
authority of Magna Carta had rested solely upon the compact of
John with his people, that authority would have been entitled to
stand forever as the supreme law of the land, unless revoked by
the will of the people themselves.
But the authority of Magna Carta does not rest alone upon the
compact with John. When, in the next year, (1216,) his son, Henry
III., came to the throne, the charter was ratified by him, and
again in 1217, and again in 1225, in substantially the same form,
and especially without allowing any new powers, legislative,
judicial, or executive, to the king or his judges, and without
detracting in the least from the powers of the jury. And from the
latter date to this, the charter has remained unchanged.
In the course of two hundred years the charter was confirmed by
Henry and his successors more than thirty times. And although
they were guilty of numerous and almost continual breaches of it,
and were constantly seeking to evade it, yet such were the
spirit, vigilance and courage of the nation, that the kings held
their thrones only on the condition of their renewed and solemn
promises of observance. And it was not until 1429, (as will be
more fully shown hereafter,) when a truce between themselves,
and
a formal combination against the mass of the people, had been
entered into, by the king, the nobility, and the "forty shilling
freeholders," (a class whom Mackintosh designates as "a few
freeholders then accounted wealthy," [1]) by the exclusion of all
others than such freeholders from all voice in the election of
knights to represent the counties in the House of Commons, that a
repetition of these confirmations of Magna Carta ceased to be
demanded. and obtained. [2]
The terms and the formalities of some of these "confirmations"
make them worthy of insertion at length.
Hume thus describes one which took place in the 38th year of
Henry III. (1253):
" But as they (the barons) had experienced his (the king's)
frequent breach of promise, they required that he should ratify
the Great Charter in a manner still more authentic and solemn
than any which he had hitherto employed. All the prelates and
abbots were assembled. They held burning tapers in their hands.
The Great Charter was read before them. They denounced the
sentence of excommunication against every one who should
thenceforth violate that fundamental law. They threw their tapers
on the ground, and exclaimed, May the soul of every one who
incurs this sentence so stink and corrupt in hell! The king bore
a part in this ceremony, and subjoined, ' So help me God! I will
keep all these articles inviolate, as I am a man, as I am a
Christian, as I am a knight, and as I am a king crowned and
anointed.' " Hume, ch. 12. See also Blackstone's Introd. to the
Charters. Black. Law Tracts, Oxford ed., p. 332. Makintosh's
Hist. of Eng., ch. 3. Lardner's Cab. Cyc., vol. 45, p. 233 4.
The following is the form of "the sentence of excommunication"
referred to by Hume:
"The Sentence of Curse, Given by the Bishops, against the
Breakers of the Charters.
"The year of our Lord a thousand two hundred and fifty-three, the
third day of May, in the great Hall of the King at Westminster,
in the presence, and by the assent, of the Lord Henry, by the
Grace of God King of England, and the Lords Richard, Earl of
Cornwall, his brother, Roger (Bigot) Earl of Norfolk and
Suffolk;, marshal of England, Humphrey, Earl of Hereford, Henry,
Earl of Oxford, John, Earl of Warwick, and other estates of the
Realm of England: We, Boniface, by the mercy of God Archbishop
of
Canterbury, Primate of all England, F. of London, H. of Ely, S.
of Worcester, F. of Lincoln, W. of Norwich, P. of Hereford, W. of
Salisbury, W. of Durham, R. of Exeter, M. of Carlisle, W. of
Bath, E. of Rochester, T. of Saint David's, Bishops, appareled in
Pontificals, with tapers burning, against the breakers of the
Church's Liberties, and of the Liberties or free customs of the
Realm of England, and especially of those which are contained in
the Charter of the Common Liberties of the Realm, and the
Charter
of the Forest, have solemnly denounced the sentence of
Excommunication in this form. By the authority of Almighty God,
the Father, the Son, and the Holy Ghost, and of the glorious
Mother of God, and perpetual Virgin Mary, of the blessed Apostles
Peter and Paul, and of all apostles, of the blessed Thomas,
Archbishop and Martyr, and of all martyrs, of blessed Edward of
England, and of all Confessors and virgins, and of all the saints
of heaven: We excommunicate, accurse, and from the thresholds
(liminibus) of our Holy Mother the Church, We sequester, all
those that hereafter willingly and maliciously deprive or spoil
the Church of her right: And all those that by any craft or
wiliness do violate, break, diminish, or change the Church's
Liberties, or the ancient approved customs of the Realm, and
especially the Liberties and free Customs contained in the
Charters of the Common Liberties, and of the Forest, conceded by
our Lord the King, to Archbishops, Bishops, and other Prelates of
England and likewise to the Earls, Barons, Knights, and other
Freeholders of the Realm: And all that secretly, or openly, by
deed, word, or counsel, do make statutes, or observe them being
made, and that bring in Customs, or keep them when they be
brought in, against the said Liberties, or any of them, the
Writers and Counselors of said statutes, and the Executors of
them, and a11 those that shall presume to judge according to
them. All and every which persons before mentioned, that
wittingly shall commit anything of the premises, let them well
know that they incur the aforesaid sentence, ipso facto, (i. e..
upon the deed being done.) And those that ignorantly do so, and
be admonished, except they reform themselves within fifteen days
after the time of the admonition, and make full satisfaction for
that they have done, at the will of the ordinary, shall be from
that time forth included in the same sentence. And with the same
sentence we burden all those that presume to perturb the peace of
our sovereign Lord the King, and of the Realm. To the perpetual
memory of which thing, We, the aforesaid Prelates, have put our
seals to these presents." Statutes of the Realm, vol. 1, p. 6.
Ruffhead's Statutes, vol. 1, p. 20.
One of the Confirmations of the Charters, by Edward I., was by
statute, in the 25th year of his reign, (1297,) in the following
terms. The statute is usually entitled. "Confirmatio
Cartarum,"(Confirmation of the Charters.)
Ch. 1. "Edward, by the Grace of God, King of England, Lord of
Ireland, and Duke of Guyan, To all those that these presents
shall hear or see, Greeting. Know ye, that We, to the honor of
Cod, and of Holy Church, and to the profit of our Realm, have
granted, for us and our heirs, that the Charter of Liberties, and
the Charter of the Forest, which were made by common assent of
all the Realm, in the time of King Henry our Father, shall be
kept in every point without breach. And we will that the same
Charters shall be sent under our seal, as well to our justices of
the Forest, as to others, and to all Sheriff's of shires, and to
all our other officers, and to all our cities throughout the
Realm, together with our writs, in the which it shall he
contained, that they cause the aforesaid Charters to be
published, and to declare to the people that We have confirmed
them at all points; and to our Justices, Sheriffs, mayors, and
other ministers, which under us have the Laws of our Land to
guide, that they allow the same Charters, in all their points, in
pleas before them, and in judgment; that is, to wit, the Great
Charter as the Common Law, and the Charter of the Forest for the
wealth of our Realm.
Ch. 2. "And we will that if any judgment be given from henceforth
contrary to the points of the charters aforesaid by the justices,
or by any others our ministers that hold plea before them,
against the points of the Charters, it shall be undone and holden
for naught.
Ch. 3. "And we will, that the same Charters shall be sent, under
our seal, to Cathedral Churches throughout our Realms there to
remain, and shall be read before the people two times in the
year.
Ch. 4. "And that all Archbishops and Bishops shall pronounce the
sentence of excommunication against all those that by word, deed,
or counsel, do contrary to the foresaid charters, or that in any
point break or undo them. And that the said Curses be twice a
year denounced and published by the prelates aforesaid. And if
the same prelates, or any of them, be remiss in the denunciation
of the said sentences, the Archbishops of Canterbury and York-,
for the time being, shall compel and distrain them to make the
denunciation in the form aforesaid." St. 25 Edward I., (1297.).
Statutes of the Realm, vol. l, p. 123.
It is unnecessary to repeat the terms of the various
confirmations, most of which were less formal than those that
have been given, though of course equally authoritative. Most of
them are brief, and in the form of a simple statute, or promise,
to the effect that "The Great Charter, and the Charter of the
Forest, shall be firmly kept and maintained in all points." They
are to be found printed with the other statutes of the realm. One
of them, after having "again granted, renewed and confirmed" the
charters, requires as follows:
"That the Charters be delivered to every sheriff of England under
the king's seal, to be read four times in the year before the
people in the full county," (that is, at the county court,) "that
is, to wit, the next county (court) after the feast of Saint
Michael, and the next county (court) after Christmas, and at the
next county (court) after Easter, and at the next county (court)
after the feast of Saint John " 28 Edward I., ch. 1, (1300.) v
Lingard says, "The Charter was ratified four times by Henry III.,
twice by Edward I., fifteen times by Edward III., seven times by
Richard II., six times by Henry IV., and once by Henry V.;"
making thirty-five times in all. 3 Lingard, 50, note, Philad.
ed.
Coke says Magna Carta was confirmed thirty-two times. Preface
to 2 Inst., p. 6.
Lingard calls these "thirty-five successive ratifications" of the
charter, "a sufficient proof how much its provisions were
abhorred by the sovereign, and how highly they were prized by the
nation." 3 Lingard, 50.
Mackintosh says, "For almost five centuries (that is, until 1688)
it (Magna Carta) was appealed to as the decisive authority on
behalf of the people, though commonly so far only as the
necessities of each case demanded." Mackintosh's Hist. of Eng.
ch. 3. 45 Lardner's Cab. Cyc., 221.
Coke, who has labored so hard to overthrow the most vital
principles of Magna Carta, and who, therefore, ought to be
considered good authority when he speaks in its favor, [3] says:
"It is called Magna Carta, not that it is great in quantity, for
there be many voluminous charters commonly passed, specially in
these later times, longer than this is; nor comparatively in
respect that it is greater than Charta de Foresta, but in respect
of the great importance and weightiness of the matter, as
hereafter shall appear; and likewise for the same cause Charta de
Foresta; and both of them are called Magnae Char- tae Libertatum
Angliae, (The Great Charters of the Liberties of England.)
"And it is also called Charta Libertatum regni, (Charter of the
liberties of the kingdom;) and upon great reason it is so called
of the effect, quia liberos facit, (because it makes men free.)
Sometime for the same cause (it is called) communis libertas,
(common liberty,) and le chartre des franchises, (the charter of
franchises.)
"It was for the most part declaratory of the principal grounds of
the fundamental laws of England, and for the residue it is
additional to supply some defects of the common law.
"Also, by the said act of 25 Edward I., (called Confirmatio
Chartarum,) it is adjudged in parliament that the Great Charter
and the Charter of the Forest shall be taken as the common law.
"They (Magna Carta and Carta de Foresta) were, for the most part,
but declarations of the ancient common laws of England, to the
observation and keeping whereof, the king was bound and sworn.
"After the making of Magna Charta, and Charta de Foresta, divers
learned men in the laws, that I may use the words of the record,
kept schools of the law in the city of London, and taught such as
resorted to them the laws of the realm, taking their foundation
of Magna Charta and Charta de Foresta.
"And the said two charters have been confirmed, established, and
commanded to be put in execution by thirty-two several acts of
parliament in all.
"This appeareth partly by that which hath been said, for that it
hath so often been confirmed by the wise providence of so many
acts of parliament.
"And albeit judgments in the king's courts are of high regard in
law, and judicia (judgments) are accounted as jurisdicta, (the
speech of the law itself,) yet it is provided by act of
parliament, that if any judgment be given contrary to any of the
points of the Great Charter and Charta de Foresta, by the
justices, or by any other of the king's ministers, &c;., it shall
be undone, and holden for naught.
"And that both the said charters shall be sent under the great
seal to all cathedral churches throughout the realm, there to
remain, and shall be read to the people twice every year.
"The highest and most binding laws are the statutes which are
established by parliament; and by authority of that highest court
it is enacted (only to show their tender care of Magna Carta and
Carta de Foresta) that if any statute be made contrary to the
Great Charter, or the Charter of the Forest, that shall be holden
for none; by which words all former statutes made against either
of those charters are now repealed; and the nobles and great
officers were to be sworn to the observation of Magna Charta and
Charta de Foresta.
"Magna fuit quondam magnae reverentia chartae." (Great was
formerly the reverence for Magna Carta.) Coke's Proem to 2
Inst., p. 1 to 7.
Coke also says, "All pretence of prerogative against Magna Charta
is taken away." 2 Inst., 36.
He also says, "That after this parliament (52 Henry III., in
1267) neither Magna Carta nor Carta de Foresta was ever
attempted to be impugned or questioned." 2 Inst., 102. [4]
To give all the evidence of the authority of Magna Carta, it
would be necessary to give the constitutional history of England
since the year 1215. This history would show that Magna Carta,
although continually violated and evaded, was still acknowledged
as law by the government, and was held up by the people as the
great standard and proof of their rights and liberties. It would
show also that the judicial tribunals, whenever it suited their
purposes to do so, were in the habit of referring to Magna Carta
as authority, in the same manner, and with the same real or
pretended veneration, with which American courts now refer to the
constitution of the United States, or the constitutions of the
states. And, what is equally to the point, it would show that
these same tribunals, the mere tools of kings and parliaments,
would resort to the same artifices of assumption, precedent,
construction, and false interpretation, to evade the requirements
of Magna Carta, and to emasculate it of all its power for the
preservation of liberty, that are resorted to by American courts
to accomplish the same work on our American constitutions.
I take it for granted, therefore, that if the authority of Magna
Carta had rested simply upon its character as a compact between
the king and the people, it would have been forever binding upon
the king, (that is, upon the government, for the king was the
government,) in his legislative, judicial, and executive
character; and that there was no constitutional possibility of
his escaping from its restraints, unless the people themselves
should freely discharge him from them.
But the authority of Magna Carta does not rest, either wholly or
mainly, upon its character as a compact. For centuries before the
charter was granted, its main principles constituted "the Law of
the Land," the fundamental and constitutional law of the realm,
which the kings were sworn to maintain. And the principal benefit
of the charter was, that it contained a written description and
acknowledgment, by the king himself, of what the constitutional
law of the kingdom was, which his coronation oath bound him to
observe. Previous to Magna Carta, this constitutional law rested
mainly in precedents, customs, and the memories of the people.
And if the king could but make one innovation upon this law,
without arousing resistance, and being compelled to retreat from
his usurpation, he would cite that innovation as a precedent for
another act of the same kind; next, assert a custom; and,
finally, raise a controversy as to what the Law of the Land
really was. The great object of the barons and people, in
demanding from the king a written description and
acknowledgment
of the Law of the Land, was to put an end to all disputes of this
kind, and to put it out of the power of the king to plead any
misunderstanding of the constitutional law of the kingdom. And
the charter, no doubt, accomplished very much in this way. After
Magna Carta, it required much more audacity, cunning, or
strength, on the part of the king, than it had before, to invade
the people's liberties with impunity. Still, Magna Carta, like
all other written constitutions, proved inadequate to the full
accomplishment of its purpose; for when did a parchment ever
have
power adequately to restrain a government, that had either
cunning to evade its requirements, or strength to overcome those
who attempted its defence? The work of usurpation, therefore,
though seriously checked, still went on, to a great extent, after
Magna Carta. Innovations upon the Law of the Land are still made
by the government. One innovation was cited as a precedent;
precedents made customs; and customs became laws, so far as
practice was concerned; until the government, composed of the
king, the high functionaries of the church, the nobility, a House
of Commons representing the "forty shilling freeholders," and a
dependent and servile judiciary, all acting in conspiracy against
the mass of the people, became practically absolute, as it is at
this day.
As proof that Magna Carta embraced little else than what was
previously recognized as the common law, or Law of the Land, I
repeat some authorities that have been already cited.
Crabbe says, "It is admitted on all hands that it (Magna Carta)
contains nothing but what was confirmatory of the common law
and
the ancient usages of the realm; and is, properly speaking, only
an enlargement of the charter of Henry I. and his successors."
Crabbe's Hist. of the Eng. Law, p. 127.
Blackstone says, "It is agreed by all our historians that the
Great Charter of King John was, for the most part, compiled from
the ancient customs of the realm, or the laws of Edward the
Confessor; by which they mean the old common law which was
established under our Saxon princes." Blackstone's Introd. to
the Charters. See Blackstone's Law Tracts, Oxford ed., p. 289.
Coke says, " The common law is the most general and ancient law
of the realm... The common law appeareth in the statute of Magna
Carta, and other ancient statutes, (which for the most part are
affirmations of the common law,) in the original writs, in
judicial records, and in our books of terms and years." 1
Inst., 115 b.
Coke also says, "It (Magna Carta) was for the most part
declaratory of the principal grounds of the fundamental laws of
England, and for the residue it was additional to supply some
defects of the common law... They (Magna Carta and Carta de
Foresta) were, for the most part, but declarations of the ancient
common laws of England, to the observation and keeping whereof
the king was bound and sworn." Preface to 2 Inst., p. 3 and 5.
Hume says, "We may now, from the tenor of this charter, (Magna
Carta,) conjecture what those laws were of King Edward, (the
Confessor,) which the English nation during so many generations
still desired, with such an obstinate perseverance, to have
recalled and established. They were chiefly these latter articles
of Magna Carta; and the barons who, at the beginning of these
commotions, demanded the revival of the Saxon laws,
undoubtedly
thought that they had sufficiently satisfied the people, by
procuring them this concession, which comprehended the principal
objects to which they had so long aspired." Hume, ch. 11.
Edward the First confessed that the Great Charter was
substantially identical with the common law, as far as it went,
when he commanded his justices to allow "the Great Charter as the
Common Law," " in pleas before them, and in judgment," as has
been already cited in this chapter. 25 Edward I., ch. 1,
(1297.)
In conclusion of this chapter, it may be safely asserted that the
veneration, attachment, and pride, which the English nation, for
more than six centuries, have felt towards Magna Carta, are in
their nature among the most irrefragable of all proofs that it
was the fundamental law of the land, and constitutionally binding
upon the government; for, otherwise, it would have been, in their
eyes, an unimportant and worthless thing. What those sentiments
were I will use the words of others to describe, the words,
too, of men, who, like all modern authors who have written on the
same topic, had utterly inadequate ideas of the true character of
the instrument on which they lavished their eulogiums.
Hume, speaking of the Great Charter and the Charter of the
Forest, as they were confirmed by Henry III., in 1217, says:"Thus
these famous charters were brought nearly to the shape in which
they have ever since stood; and they were, during many
generations, the peculiar favorites of the English nation, and
esteemed the most sacred rampart to national liberty and
independence. As they secured the rights of all orders of men,
they were anxiously defended by all, and became the basis, in a
manner, of the English monarchy, and a kind of original contract,
which both limited the authority of the king and ensured the
conditional allegiance of his subjects. Though often violated,
they were still claimed by the nobility and people; and, as no
precedents were supposed valid that infringed them, they rather
acquired than lost authority, from the frequent attempts made
against them in several ages, by regal and arbitrary power."
Hume, ch. 12.
Mackintosh says, "It was understood by the simplest of the
unlettered age for whom it was intended. It was remembered by
them... For almost five centuries it was appealed to as the
decisive authority on behalf of the people... To have produced
it, to have preserved it, to have matured it, constitute the
immortal claim of England on the esteem of mankind. Her Bacons
arid Shakspeares, her Miltons and Newtons, with all the truth
which they have revealed, and all the generous virtues which they
have inspired, are of inferior value when compared with the
subjection of men and their rulers to the principles of justice;
if, indeed, it be not more true that these mighty spirits could
not have been formed except under equal laws, nor roused to full
activity without the influence of that spirit which the Great
Charter breathed over their forefathers." Mackintosh's Hist. of
Eng., ch. 3, [8]
Of the Great Charter, the trial by jury is the vital part, and
the only part that places the liberties of the people in their
own keeping. Of this Blackstone says:
"The trial by jury, or the country, per patriam, is also that
trial by the peers of every Englishman, which, as the grand
bulwark of his liberties, is secured to him by the Great Charter;
nullus liber homo capiatur, vel imprisonetur, aut exuletur, aut
aliquo modo destruatur, nisi per legale judicial parium suorum,
vel per legem terrae.
The liberties of England cannot but subsist so long as this
palladium remains sacred and inviolate, not only from all open,
attacks, which none will be so hardy as to make, but also from
all secret machinations which may sap and undermine it." [9]
"The trial by jury ever has been, and I trust ever will be,
looked upon as the glory of the English law... It is the most
transcendent privilege which any subject can enjoy or wish for,
that he cannot be affected in his property, his liberty, or his
person, but by the unanimous consent of twelve of his neighbors
and equals."[10]
Hume calls the Trial by Jury "An institution admirable in itself,
and the best calculated for the preservation of liberty and the
administration of justice, that ever was devised by the wit of
man." [11]
An old book, called "English Liberties," says:"English
Parliaments have all along been most zealous for preserving this
Great Jewel of Liberty, Trials by Juries having no less than
fifty-eight several times, since the Norman Conquest, been
established and confirmed by the legislative power, no one
privilege besides having been ever so often remembered in
parliament."{12]
[1] Mackintosh's Hist. of Eng., ch. 3. 45 Lardner's Cab. Cyc.,
354.
[2] "Forty shilling freeholders" were those "people dwelling and
resident in the same counties, whereof every one of them shall
have free land or tenement to the value of forty shillings by the
year at the least above all charges." By statute 8 Henry 6, ch.
7, (1429,) these freeholders only were allowed to vote for
members of Parliament from the counties.
[3] He probably speaks in its favor only to blind the eyes of the
people to the frauds he has attempted upon its true meaning.
[4] It will be noticed that Coke calls these confirmations of the
charter "acts of parliament," instead of acts of the king alone.
This needs explanation.
It was one of Coke's ridiculous pretences, that laws anciently
enacted by the king, at the request, or with the consent, or by
the advice, of his parliament, was "an act of parliament,"
instead of the act of the king. And in the extracts cited, he
carries this idea so far as to pretend that the various
confirmations of the Great Charter were "acts of parliament,"
instead of the acts of the kings. He might as well have pretended
that the original grant of the Charter was an "act of parliament;
"because it was not only granted at the request, and with the
consent, and by the advice, but on the compulsion even, of those
who commonly constituted his parliaments. Yet this did not make
the grant of the charter "an act of parliament." It was simply an
act of the king.
The object of Coke, in this pretence, was to furnish some color
for the palpable false- hood that the legislative authority,
which parliament was trying to assume in his own day, and which
it finally succeeded in obtaining, had a precedent in the ancient
constitution of the kingdom.
There would be as much reason in saying that, because the ancient
kings were in the habit of passing laws in special answer to the
petitions of their subjects, therefore those petitioners were a
part of the legislative power of the kingdom.
One great objection to this argument of Coke, for the legislative
authority of the ancient parliaments, is that a very large
probably much the larger number of legislative acts were done
without the advice, consent, request, or even presence, of a
parliament. Not only were many formal statutes passed without
any mention of the consent or advice of parliament, but a simple
order of the king in council, or a simple proclamation, writ, or
letter under seal, issued by his command, had the same force as
what Coke calls "an act of parliament." And this practice
continued, to a considerable extent at least, down to Coke's own
time.
The kings were always in the habit of consulting their
parliaments, more or less, in regard to matters of legislation,
not because their consent was constitutionally necessary, but in
order to make influence in favor of their laws, and thus induce
the people to observe them, and the juries to enforce them.
The general duties of the ancient parliaments were not
legislative, but judicial, as will be shown more fully hereafter.
The people were not represented in the parliaments at the time of
Magna Carta, but only the archbishops, bishops, earls, barons,
and knights; so that little or nothing would have been gained for
liberty by Coke's idea that parliament had a legislative power.
He would only have substituted an aristocracy for a king. Even
after the Commons were represented in parliament, they for some
centuries appeared only as petitioners, except in the matter of
taxation, when their consent was asked. And almost the only
source of their influence on legislation was this: that they
would sometimes refuse their consent to the taxation, unless the
king would pass such laws as they petitioned for; or, as would
seem to have been much more frequently the case, unless he would
abolish such laws and practices as they remonstrated against.
The influence, or power of parliament, and especially of the
Commons, in the general legislation of the country, was a thing
of slow growth, having its origin in a device of the king to get
money contrary to law, (as will be seen in the next volume,) and
not at all a part of the constitution of the kingdom, nor having
its foundation in the consent of the people. The power, as at
present exercised, was not fully established until 1688, (near
five hundred years after Magna Carta,) when the House of
Commons (falsely so called) had acquired such influence as the
representative, not of the people, but of the wealth, of the
nation, that they compelled, the king to discard the oath fixed
by the constitution of the kingdom; (which oath has been already
given in a former chapter, [5] and was, in substance, to preserve
and execute the Common Law, the Law of the Land, or, in the
words of the oath, "the just laws and customs which the common
people had chosen;") and to swear that he would "govern the
people of this kingdom of England, and the dominions thereto
belonging, accordingto the statutes in parliament agreed on, and
the laws and customs of the same." [6]
The passage and enforcement of this statute, and the assumption
of this oath by the king, were plain violations of the English
constitution, inasmuch as they abolished, so far as such an oath
could abolish, the legislative power of the king, and also "those
just laws and customs which the common people (through their
juries) had chosen," and substituted the will of parliament in
their stead.
Coke was a great advocate for the legislative power of
parliament, as a means of restraining the power of the king. As
he denied all power to juries to decide upon the obligation of
laws, and as he held that the legislative power was "so
transcendent and absolute as (that) it cannot be confined, either
for causes or persons, within any bounds," [7] he was perhaps
honest in holding that it was safer to trust this terrific power
in the hands of parliament, than in the hands of the king. His
error consisted in holding that either the king or parliament had
any such power, or that they had any power at all to pass laws
that should be binding upon a jury.
These declarations of Coke, that the charter was confirmed by
thirty-two "acts of parliament," have a mischievous bearing in
another respect. They tend to weaken the authority of the
charter, by conveying the impression that the charter itself
might be abolished by "act of parliament." Coke himself admits
that it could not be revoked or rescinded by the king; for he
says, "All pretence of prerogative against Magna Carta is taken
away." (2 Inst., 36.)
He knew perfectly well, and the whole English nation knew, that
the king could not lawfully infringe Magna Carta. Magna Carta,
therefore, made it impossible that absolute power could ever be
practically established in England, in the hands of the king.
Hence, as Coke was an advocate for absolute power, that is, for
a legislative power "so transcendent and absolute as (that) it
cannot, be confined, either for causes or persons, within any
bounds," there was no alternative for him but to vest this
absolute power in parliament. Had he not vested it in parliament,
he would have been obliged to abjure it altogether, and to
confess that the people, through their juries, had the right to
judge of the obligation of all legislation whatsoever; in other
words, that they had the right to confine the government within
the limits of "those just laws and customs which the common
people (acting as jurors) had chosen." True to his instincts, as
a judge, and as a tyrant, he assumed that this absolute power was
vested in the hands of parliament.
But the truth was that, as by the English constitution parliament
had no authority at all for general legislation, it could no more
confirm, than it could abolish, Magna Carta.
These thirty-two confirmations of Magna Carta, which Coke
speaks of as "acts of parliament," were merely acts of the king. The
parliaments, indeed, by refusing to grant him money, except, on
that condition, and otherwise, had contributed to oblige him to
make the confirmations; just as they had helped to oblige him by
arms to grant the charter in the first place. But the confirmations
themselves were nevertheless constitutionally, as well as formally,
the acts of the king alone.
[5] See page 103.
[6]St. 1.William and Mary, ch. 6, (1688)
[7]4. Inst., 36.
[8] Under the head of "John."
[9] 4 Blackstone, 849-50.
[10] 3 Blackstone, 379.
[11] Hume, ch. 2.
[12] Page 203, 5th edition, 1721.