The common law, as it then prevailed in England, was in a great measure
composed of some remnants of the old Saxon customs, joined to the feudal
institutions brought in at the Norman conquest. And it is here to be
observed, that the constitutions of Magna Charta are by no means a
renewal of the laws of St. Edward, or the ancient Saxon laws, as our
historians and law-writers generally, though very groundlessly, assert.
They bear no resemblance, in any particular, to the laws of St. Edward,
or to any other collection of these ancient institutions. Indeed, how
should they? The object of Magna Charta is the correction of the feudal
policy, which was first introduced, at least in any regular form, at
the Conquest, and did not subsist before it. It may be further observed,
that in the preamble to the Great Charter it is stipulated, that the
barons shall HOLD the liberties, there granted TO THEM AND THEIR HEIRS,
from THE KING AND HIS HEIRS; which shows, that the doctrine of an
unalienable tenure was always uppermost in their minds. Their idea even
of liberty was not (if I may use the expression) perfectly free;
and they did not claim to possess their privileges upon any natural
principle or independent bottom, but, just as they held their lands,
from the king. This is worthy of observation. By the feudal law all
landed property is, by a feigned conclusion, supposed to be derived, and
therefore to be mediately or immediately held, from the Crown. If some
estates were so derived, others were certainly procured by the same
original title of conquest, by which the crown itself was acquired; and
the derivation from the king could in reason only be considered as a
fiction of law. But its consequent rights being once supposed, many real
charges and burthens grew from a fiction made only for the preservation
of subordination; and in consequence of this, a great power was
exercised over the persons and estates of the tenants. The fines on the
succession to an estate, called in the feudal language "Reliefs,"
were not fixed to any certainty; and were therefore frequently made so
excessive, that they might rather be considered as redemptions, or new
purchases, than acknowledgments of superiority and tenure. With respect
to that most important article of marriage, there was, in the very
nature of the feudal holding, a great restraint laid upon it. It was of
importance to the lord, that the person, who received the feud, should
be submissive to him; he had therefore a right to interfere in the
marriage of the heiress, who inherited the feud. This right was carried
further than the necessity required; the male heir himself was obliged
to marry according to the choice of his lord: and even widows, who
had made one sacrifice to the feudal tyranny, were neither suffered to
continue in the widowed state, nor to choose for themselves the partners
of their second bed. In fact, marriage was publicly set up to sale. The
ancient records of the exchequer afford many instances where some women
purchased, by heavy fines, the privilege of a single life; some the
free choice of a husband; others the liberty of rejecting some person
particularly disagreeable. And, what may appear extraordinary, there
are not wanting examples, where a woman has fined in a considerable sum,
that she might not be compelled to marry a certain man; the suitor
on the other hand has outbid her; and solely by offering more for the
marriage than the heiress could to prevent it, he carried his point
directly and avowedly against her inclinations. Now, as the king claimed
no right over his immediate tenants, that they did not exercise in the
same, or in a more oppressive manner over their vassals, it is hard to
conceive a more general and cruel grievance than this shameful market,
which so universally outraged the most sacred relations among mankind.
But the tyranny over women was not over with the marriage. As the king
seized into his hands the estate of every deceased tenant in order to
secure his relief, the widow was driven often by a heavy composition to
purchase the admission to her dower, into which it should seem she could
not enter without the king's consent.
All these were marks of a real and grievous servitude. The Great
Charter was made not to destroy the root, but to cut short the overgrown
branches, of the feudal service; first, in moderating, and in reducing
to a certainty, the reliefs, which the king's tenants paid on succeeding
to their estate according to their rank; and secondly, in taking
off some of the burthens, which had been laid on marriage, whether
compulsory or restrictive, and thereby preventing that shameful market,
which had been made in the persons of heirs, and the most sacred things
amongst mankind.
There were other provisions made in the Great Charter, that went
deeper than the feudal tenure, and affected the whole body of the civil
government. A great part of the king's revenue then consisted in the
fines and amercements, which were imposed in his courts. A fine was paid
there for liberty to commence, or to conclude a suit. The punishment
of offences by fine was discretionary; and this discretionary power had
been very much abused. But by Magna Charta things were so ordered, that
a delinquent might be punished, but not ruined, by a fine or amercement,
because the degree of his offence, and the rank he held, were to be
taken into consideration. His freehold, his merchandise, and those
instruments, by which he obtained his livelihood, were made sacred
from such impositions. A more grand reform was made with regard to the
administration of justice. The kings in those days seldom resided long
in one place, and their courts followed their persons. This erratic
justice must have been productive of infinite inconvenience to the
litigants. It was now provided, that civil suits, called COMMON PLEAS,
should be fixed to some certain place. Thus one branch of jurisdiction
was separated from the king's court, and detached from his person. They
had not yet come to that maturity of jurisprudence as to think this
might be made to extend to criminal law also; and that the latter was
an object of still greater importance. But even the former may be
considered as a great revolution. A tribunal, a creature of mere law,
independent of personal power, was established, and this separation of
a king's authority from his person was a matter of vast consequence
towards introducing ideas of freedom, and confirming the sacredness and
majesty of laws.
But the grand article, and that which cemented all the parts of
the fabric of liberty, was this: "that no freeman shall be taken or
imprisoned, or disseized, or outlawed, or banished, or in any wise
destroyed, but by judgment of his peers."
There is another article of nearly as much consequence as the former,
considering the state of the nation at that time, by which it is
provided, that the barons shall grant to their tenants the same
liberties which they had stipulated for themselves. This prevented the
kingdom from degenerating into the worst imaginable government, a feudal
aristocracy. The English barons were not in the condition of those
great princes, who had made the French monarchy so low in the preceding
century; or like those, who reduced the imperial power to a name. They
had been brought to moderate bounds by the policy of the first
and second Henrys, and were not in a condition to set up for petty
sovereigns by an usurpation equally detrimental to the Crown and the
people. They were able to act only in confederacy; and this common cause
made it necessary to consult the common good, and to study popularity by
the equity of their proceedings. This was a very happy circumstances to
the growing liberty.