the charter of the ninth of Henry III., so called from the letters-patent prefixed in the name of Edward I. IN

to show the defects or defaults in these points, I have put this chapter, first of the defects of the Great Charter." And then a variety of points are mentioned, on each of which the comments made will be inserted in the notes to the clause in which it arises. This, it is manifest, will be that contemporaneous exposition which is the best possible commentary on any ancient statute, whence the change, subsequently made, from justices itinerant, who went yearly, to "justices in eyre," who went only septennially (vide ante). In such a state of society, it is manifest that, as Guizot points out, the great difficulty was in the guarantees or securities for liberty. As to the law, there was no doubt about it at all. And the very necessity for repeatedly affirming it showed the real difficulty lay in its execution and enforcement. It is to this point, then, principally, as by far the one most practically important, the readers of the charters must attend, in order to judge of their practical worth and value. Mere declarations of that law, no doubt, were in that age not without value; but it must be evident that the great point was, what guarantees or safeguards should be provided. Two points, then, have to be kept in mind in examining the charter: first, what provisions it contained to protect the people not only against the king, but against the barons and other powerful persons; and next, what provisions it contained for practically carrying out these protective enactments. As to the first point, it is remarkable that, as already observed in the chief clause, the celebrated "nullus liber homo" clause certainly applies to all freemen, though it contains no practical guarantee, as the commentator in the Mirror observes, but rather takes one away, or tries to do so, by making the sovereign undertake not to come upon any freeman, except in due course of law, which, as the great oppressors of the people were too powerful for the ordinary course of law, would secure them from any effective measures of redress, unless, indeed, they actually proceeded to levy war. But then it does not apply to villeins, a large and important class, comprising still the great body of the people, who, as the Mirror points out, were not slaves, nor to be regarded or treated as such, or as if they had no personal rights, so that they could be beaten or imprisoned at leisure; yet the charter contains not a word in their favor, and hence, as the Mirror says, in a passage at the end, written not long after the final confirmation of the charter by Edward I., "It is an abuse to hold villeins for slaves, and this abuse causeth great destruction of poor people, and is a great offence" (c. v., s. 2); but there is nothing against it in the Mirror. And although, in the clause about amercements, all villeins are included, as well as all freemen, and it is said that their amercements must be, saving their "wains" or wagons, that was as much for their lord's benefit as their own, and indeed more so, since they could only use their wagons upon their lord's land, having no property of their own. As regards the great body of the freemen, the common freeholders, no doubt they appear to share in most of the principal clauses in the charter in which they could be included those relating to personal liberty and rights of property, etc. But the bulk of the charter relates to feudal matters which concerned the barons · and knights who held by military tenure, and the only guarantee contained in the first Great Charter consisted, in fact, as Guizot points out, in their own assumption of supreme powers; for it was provided by John's charter that a select body of the most powerful barons might, if they deemed the charter to have been infringed, make war upon the king to compel its observancee., its observance according to their ideas, which was, as Guizot says, the right of civil war; and accordingly it led to civil war, which lasted, more or less, for many years, and in the result it is remarkable that a charter was

i.

SPEXIMUS Magnam Chartam domini Henrici quondam regis Angliæ patris nostri de libertatibus Angliæ in hæc verba. Then obtained in several respects less favorable to the people than the first, and especially in the omission of the important provision that scutage should only be levied by consent of a common council of the realm, which contained in it the germ of a representative assembly, the effectual guarantee of popular liberty, at all events against the crown. And as the provision for a guarantee of the charter by the barons was omitted, there was no additional guarantee or security afforded by the charter, as now finally settled; and it consisted entirely of declarations of the law, no doubt, in that age, so far as they went, useful and valuable. As to this, indeed, one of our historians, Dr. Henry, observes, that the charter was conceived entirely in the interest of the nobility, and that the only article in favor of the people-the one which applied to the barons the same enactments which they had applied to the king. was inserted at the instance of the king (Hist. Eng., v. 1). This, however, is not a fair representation, for though it may be that the charter was conceived and intended chiefly in the interest of the barons, it did contain provisions which embraced all freemen, and, moreover (what is of infinitely greater importance), it contained the great principles which, though perhaps intended for the benefit of a class, proved the fruitful germs of rights and immunities for the whole body of the nation, and were growing and developing for ages. To trace this progress and development is the great object of the legal history of the subsequent periods. No one will regret the insertion of an admirable passage from Sir J. Mackintosh, in which that great historian sums up in a masterly manner the effect of John's charter: "Many parts of the great charter were pointed against the abuses of the power of the king, as lord paramount, and have lost their importance since the downfall of the system of feuds, which it was their purpose to mitigate. But it contains a few maxims of just government applicable to all places and times, of which it is scarcely possible to overrate the importance of the first promulgation by the supreme authority of a powerful and renowned nation. Some clauses, though limited in words by feudal relations, yet covered general principles of equity, which were now slowly unfolded, by the example of the charter and their obvious application to the safety and well-being of the whole community. Aids or assistance in money were due from any vassal for the ransom of his lord, for the knighting of his eldest son, and for the marriage of his eldest daughter. But they were often extorted when no such reasons could be urged. Escuage or scutage was a pecuniary compensation for military service, but as the approach of war was an easy pretext, it was liable to become abused. Talliage, an impost assessed on cities and towns, and on freemen who owed no military service, according to an estimate of their income, was in its nature very arbitrary. The barons, in their articles, required a parliamentary assent to the talliages of London, and all other towns, as much as to the aids and scutages which fell upon themselves. By the charter itself, however, talliage was omitted, though the liberties of the town were generally asserted. But it contained the memorable provision: No scutage or aid shall be raised in our kingdom (except in the above three cases) but by the consent of the general council'a concession sufficient to declare a principle which could not long remain barren, that the consent of the community is essential to just taxation. By the charter, as confirmed in the next reign, even scutages and aids were reserved for further consideration. But the formidable principle had gone forth, though every species of impost without the consent of parliament was not renounced expressly until the confirmatio chartarum, in the 25th Edward I., fourscore years after the grant of the Great Charter.

'To

follows Magna Charta nearly in the form of that granted by Henry III. (a).

Magna Charta contains fifty-seven chapters, composing a rhapsody of ordinances for the settling or amendment of the law in divers particulars at that time anxiously contended for. The whole is strung together in a disorderly manner, with very little regard to the subjectmatter. If we were to judge, from the face of the instrument itself, of the chief design of the barons in obconstitute the common council of the kingdom,' says the charter, 'we shall cause the prelates and greater barons to be summoned, and shall direct our sheriffs to summon all who hold of us in chief.' To the upper house of parliament this clause is still applicable. From the lower house it essentially differs by excluding representation. It presents, however, the first outlines of a parliamentary constitution. The 39th article of the charter is that which forbids arbitrary imprisonment and punishment without lawful trial: Let no freeman be imprisoned, etc., otherwise than by the legal judg ment of his peers, or by the law of the land. In this article are clearly contained the habeas corpus and the trial by jury, the most effectual securities against oppression which the wisdom of man has hitherto been able to devise. We will sell, delay, or deny justice to no one. No man can carry further the great principle that justice is the great debt of the government to the people, which requires that law be rendered cheap, prompt, and equal. The provision which directs that the supreme civil court shall be stationary instead of following the king's person, is a proof of that regard to the regularity, accessibility, independence, and dignity of public justice which characterizes that venerable monument of English liberty. The language of the Great Charter is simple, brief, general without being abstract, and expressed in terms of authority, not of argument, yet commonly so reasonable as to carry with it the intrinsic evidence of its own fitness. It was understood by the simplest of the unlettered age for whom it was intended. It was remembered by them, and, although they did not perceive the extensive consequences which might be derived from it, their feelings were, however unconsciously, elevated by its generality and grandeur. It was a peculiar advantage that the consequences of its principles were, if we may so speak, only discovered slowly and gradually. It gave out on each occasion only so much of the spirit of liberty and reformation as the circumstances of succeeding generations required, and as their character would safely bear. For almost five centuries it was appealed to as the decisive authority on behalf of the people, though commonly so far only as the necessities of each case demanded. To all mankind it set the first example of the progress of a great people for centuries in blending the tumultuary democracy and haughty nobility with a fluctuating and vaguely united monarchy, so as to form from these discordant materials, the only form of free government which experience would show to be reconcilable with widely extended dominion" (History of England, v. 1).

(a) Varying in some respects from the charter of John, as that did from the articles, but no doubt substantially the same. It is to be observed that the author's citations are all from the Inspeximus charter of Edward I., which it is necessary to notice, because the arrangement and numbering of the charters vary in every one of them; so that reference to that of Edward I. will not apply to any of those of Henry III. The author's are all to that of Edward I.

taining this charter, we might be inclined to think that their great object was to ascertain the services and burdens arising from tenures; for the first six chapters are wholly confined to that subject, and many others relate incidentally to the same point; the consequence of which is, that many parts of this famous charter have become obsolete, and, to a modern reader, almost unintelligible. Other parts of it, however, are extremely worthy of notice, even at this day; as they, at the time, contributed to confirm, if not establish, certain branches of our juridical constitution; and, what is more important, to lay down certain general principles, which have had an extensive influence on our law in all its branches ever since; as our civil liberty and private rights became thereby better defined, and were considered as settled on the firm basis of parliamentary recognition.

To explain in what manner this was done, it will be proper to state at length the subject of Magna Charta; which we shall attempt in an order differing Magna Charta. from that in which the text appears, but which will, perhaps, bring the contents of it into a clearer light than the original appears in. We shall first speak of such provisions as are of a more general or miscellaneous nature; then of those which relate to tenures and property; after which will follow the regulations ordained for the administration of justice.

The address and general preamble to the charter are deserving notice, as they show the form in which these solemn acts were usually authenticated: it is addressed in the name of the king, "To all archbishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, officers; and to all bailiffs, and other our faithful subjects, who shall see this present charter, greeting. Know ye, that we, unto the honor of Almighty God, and for the salvation of the souls of our progenitors and successors kings of England, to the advancement of holy church, and amendment of our realm, of our mere and free will,' have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all freemen of this our realm, these liberties following, to be kept in our kingdom of England forever."

1

Such is the manner in which the provisions of Magna

1 Spontanea et boná voluntate nostra.

* Dedimus et concessimus.

Charta are introduced; after which comes the first chapter, containing a general grant in the following terms: "First, we have granted to God, and by this our present charter have confirmed, for us and our heirs forever, that the church of England shall be free, and shall have all her whole rights and liberties inviolable (a). We have granted also and given to all the freemen of our realm, for us and our heirs forever, these liberties under-written, to have and to hold, to them and their heirs, of us and our heirs forever." What these liberties were we shall now inquire.

2

It was ordained that the city of London shall have all the ancient liberties and customs which it had been used to enjoy; and that all other cities and towns, and the barons of the cinque or other ports, should possess all their liberties and free customs. As many exactions had been made during the reigns of Richard and John for erecting bulwarks, fortresses, bridges, and banks, contrary to law and right, it was declared that no town or freemen should be distrained to make bridges or banks, but only those that were formerly liable to such duty in the reign of Henry II., a period which was often referred to, as an example for correction of enormities, and the due observance of the laws. For the same reason, none were to appropriate to themselves a several right in the banks of rivers, so as to exclude others from a passage there, or from fishing, except such as had that right in the reign of Henry II. (b). All weirs in the Thames and Medway,

(a) The Mirror, upon this point, says, "It was necessary to ordain a corporal punishment-namely, to the lay judges, the king's ministers, and others, who judge clerks for mortal crimes to corporal punishments, and do detain their goods after their purgation; and to those secular judges who take upon them cognizance of causes of matrimony and testaments, or other special things" (c. v., s. 2). And, accordingly, subsequent statutes were passed to restrain the lay judges from these latter matters. As to the other point, the cognizance taken by secular judges of the offences of clerks, it is remarkable that it was the very point on which the controversy arose between Henry II. and the Archbishop à Becket; and, according to the Mirror, it was an abuse which plainly shows that the Constitutions of Clarendon were not considered laws.

(b) The comment of the Mirror upon this is, "The point which forbiddeth that rivers be defended is misused, for many rivers are now appropriated and put in defence which used to be common for fishing in the reign of King Henry I." (c. v., s. 2). Hence it is manifest that the clause was understood to be in pari materia with the next mentioned, and which, therefore, our 1 Mag. Char., ch. 9.

2 Ibid., ch. 15. 3 Vide Harg. Tracts, p. 7, "De defensione repariæ," etc. 4 Mag. Char., ch. 16.