630 lines
35 KiB
Markdown
630 lines
35 KiB
Markdown
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CHAPTER XI.
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AUTHORITY OF MAGNA CARTA.
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Probably no political compact between king and people was ever entered
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into in a manner to settle more authoritatively the fundamental law of a
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nation, than was Magna Carta. Probably no people were ever more united
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and resolute in demanding from their king a definite and unambiguous
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acknowledgment of their rights and liberties, than were the English at
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that time. Probably no king was ever more completely stripped of all
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power to maintain his throne, and at the same time resist the demands of
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his people, than was John on the 15th day of June, 1215. Probably no
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king ever consented, more deliberately or explicitly, to hold his throne
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subject to specific and enumerated limitations upon his power, than did
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John when he put his seal to the Great Charter of the Liberties of
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England. And if any political compact between king and people was ever
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valid to settle the liberties of the people, or to limit the power of
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the crown, that compact is now to be found in Magna Carta. If,
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therefore, the constitutional authority of Magna Carta had rested solely
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upon the compact of John with his people, that authority would have been
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entitled to stand forever as the supreme law of the land, unless revoked
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by the will of the people themselves.
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But the authority of Magna Carta does not rest alone upon the compact
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with _John_. When, in the next year, (1216,) his son, Henry III., came
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to the throne, the charter was ratified by him, and again in 1217, and
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again in 1225, in substantially the same form, and especially without
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allowing any new powers, legislative, judicial, or executive, to the
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king or his judges, and without detracting in the least from the powers
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of the jury. And from the latter date to this, the charter has remained
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unchanged.
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In the course of two hundred years the charter was confirmed by Henry
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and his successors more than thirty times. And although they were guilty
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of numerous and almost continual breaches of it, and were constantly
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seeking to evade it, yet such were the spirit, vigilance and courage of
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the nation, that the kings held their thrones only on the condition of
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their renewed and solemn promises of observance. And it was not until
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1429, (as will be more fully shown hereafter,) when a truce between
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themselves, and a formal combination against the mass of the people, had
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been entered into, by the king, the nobility, and the "_forty shilling
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freeholders_," (a class whom Mackintosh designates as "_a few
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freeholders then accounted wealthy_,"[106]) by the exclusion of all
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others than such freeholders from all voice in the election of knights
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to represent the counties in the House of Commons, that a repetition of
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these confirmations of Magna Carta ceased to be demanded and
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obtained.[107]
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The terms and the formalities of some of these "confirmations" make them
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worthy of insertion at length.
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Hume thus describes one which took place in the 38th year of Henry III.
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(1253):
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"But as they (the barons) had experienced his (the king's) frequent
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breach of promise, they required that he should ratify the Great
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Charter in a manner still more authentic and solemn than any which he
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had hitherto employed. All the prelates and abbots were assembled.
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They held burning tapers in their hands. The Great Charter was read
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before them. They denounced the sentence of excommunication against
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every one who should thenceforth violate that fundamental law. They
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threw their tapers on the ground, and exclaimed, _May the soul of
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every one who incurs this sentence so stink and corrupt in hell!_ The
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king bore a part in this ceremony, and subjoined, 'So help me God! I
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will keep all these articles inviolate, as I am a man, as I am a
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Christian, as I am a knight, and as I am a king crowned and
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anointed.'"--_Hume_, ch. 12. See also _Blackstone's Introd. to the
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Charters. Black. Law Tracts_, Oxford ed., p. 332. _Mackintosh's Hist.
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of Eng._, ch. 3. _Lardner's Cab. Cyc._, vol. 45, p. 233-4.
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The following is the form of "the sentence of excommunication" referred
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to by Hume:
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"_The Sentence of Curse, Given by the Bishops, against the Breakers
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of the Charters._
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"The year of our Lord a thousand two hundred and fifty-three, the
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third day of May, in the great Hall of the King at Westminster, _in
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the presence, and by the assent, of the Lord Henry, by the Grace of
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God King of England_, and the Lords Richard, Earl of Cornwall, his
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brother, Roger (Bigot) Earl of Norfolk and Suffolk, marshal of
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England, Humphrey, Earl of Hereford, Henry, Earl of Oxford, John,
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Earl of Warwick, and other estates of the Realm of England: We,
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Boniface, by the mercy of God Archbishop of Canterbury, Primate of
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all England, F. of London, H. of Ely, S. of Worcester, E. of Lincoln,
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W. of Norwich, P. of Hereford, W. of Salisbury, W. of Durham, R. of
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Exeter, M. of Carlisle, W. of Bath, E. of Rochester, T. of Saint
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David's, Bishops, apparelled in Pontificals, with tapers burning,
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against the breakers of the Church's Liberties, and of the Liberties
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or free customs of the Realm of England, and especially of those
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which are contained in the Charter of the Common Liberties of the
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Realm, and the Charter of the Forest, have solemnly denounced the
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sentence of Excommunication in this form. By the authority of
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Almighty God, the Father, the Son, and the Holy Ghost, and of the
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glorious Mother of God, and perpetual Virgin Mary, of the blessed
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Apostles Peter and Paul, and of all apostles, of the blessed Thomas,
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Archbishop and Martyr, and of all martyrs, of blessed Edward of
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England, and of all Confessors and virgins, and of all the saints of
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heaven: We excommunicate, accurse, and from the thresholds
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(liminibus) of our Holy Mother the Church, We sequester, all those
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that hereafter willingly and maliciously deprive or spoil the Church
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of her right: And all those that by any craft or wiliness do violate,
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break, diminish, or change the Church's Liberties, or the ancient
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approved customs of the Realm, and especially the Liberties and free
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Customs contained in the Charters of the Common Liberties, and of the
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Forest, conceded by our Lord the King, to Archbishops, Bishops, and
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other Prelates of England; and likewise to the Earls, Barons,
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Knights, and other Freeholders of the Realm: And all that secretly,
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or openly, by deed, word, or counsel, _do make statutes, or observe
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them being made_, and that bring in Customs, or keep them when they
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be brought in, against the said Liberties, or any of them, the
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Writers and Counsellors of said statutes, and the Executors of them,
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and all those that shall presume to judge according to them. All and
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every which persons before mentioned, that wittingly shall commit
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anything of the premises, let them well know that they incur the
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aforesaid sentence, _ipso facto_, (i.e., upon the deed being done.)
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And those that ignorantly do so, and be admonished, except they
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reform themselves within fifteen days after the time of the
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admonition, and make full satisfaction for that they have done, at
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the will of the ordinary, shall be from that time forth included in
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the same sentence. And with the same sentence we burden all those
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that presume to perturb the peace of our sovereign Lord the King, and
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of the Realm. To the perpetual memory of which thing, We, the
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aforesaid Prelates, have put our seals to these presents."--_Statutes
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of the Realm_, vol. 1, p. 6. _Ruffhead's Statutes_, vol. 1, p. 20.
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One of the Confirmations of the Charters, by Edward I., was by statute,
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in the 25th year of his reign, (1297,) in the following terms. The
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statute is usually entitled "_Confirmatio Cartarum_," (Confirmation of
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the Charters.)
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_Ch. 1._ "Edward, by the Grace of God, King of England, Lord of
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Ireland, and Duke of Guyan, To all those that these presents shall
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hear or see, Greeting. Know ye, that We, to the honor of God, and of
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Holy Church, and to the profit of our Realm, have granted, for us and
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our heirs, that the Charter of Liberties, and the Charter of the
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Forest, which were made by common assent of all the Realm, in the
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time of King Henry our Father, shall be kept in every point without
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breach. And we will that the same Charters shall be sent under our
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seal, as well to our justices of the Forest, as to others, and to all
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Sheriffs of shires, and to all our other officers, and to all our
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cities throughout the Realm, together with our writs, in the which it
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shall be contained, that they cause the aforesaid Charters to be
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published, and to declare to the people that We have confirmed them
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at all points; and to our Justices, Sheriffs, Mayors, and other
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ministers, which under us have the Laws of our Land to guide, that
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they allow the same Charters, in all their points, in pleas before
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them, and in judgment; that is, to wit, the Great Charter as the
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Common Law, and the Charter of the Forest for the wealth of our
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Realm.
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_Ch. 2._ "And we will that if any judgment be given from henceforth
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contrary to the points of the charters aforesaid by the justices, or
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by any others our ministers that hold plea before them, against the
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points of the Charters, it shall be undone and holden for naught.
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_Ch. 3._ "And we will, that the same Charters shall be sent, under
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our seal, to Cathedral Churches throughout our Realm, there to
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remain, and shall be read before the people two times in the year.
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_Ch. 4._ "And that all Archbishops and Bishops shall pronounce the
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sentence of excommunication against all those that by word, deed, or
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counsel, do contrary to the foresaid charters, or that in any point
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break or undo them. And that the said Curses be twice a year
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denounced and published by the prelates aforesaid. And if the same
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prelates, or any of them, be remiss in the denunciation of the said
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sentences, the Archbishops of Canterbury and York, for the time
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being, shall compel and distrain them to make the denunciation in the
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form aforesaid."--_St. 25 Edward I._, (1297.) _Statutes of the
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Realm_, vol. 1, p. 123.
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It is unnecessary to repeat the terms of the various confirmations, most
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of which were less formal than those that have been given, though of
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course equally authoritative. Most of them are brief, and in the form of
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a simple statute, or promise, to the effect that "The Great Charter, and
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the Charter of the Forest, shall be firmly kept and maintained in all
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points." They are to be found printed with the other statutes of the
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realm. One of them, after having "again granted, renewed and confirmed"
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the charters, requires as follows:
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"That the Charters be delivered to every sheriff of England under the
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king's seal, to be read four times in the year before the people in
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the full county," (that is, at the county court,) "that is, to wit,
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the next county (court) after the feast of Saint Michael, and the
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next county (court) after Christmas, and at the next county (court)
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after Easter, and at the next county (court) after the feast of Saint
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John."--_28 Edward I._, ch. 1, (1300.)
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Lingard says, "The Charter was ratified four times by Henry III.,
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twice by Edward I., fifteen times by Edward III., seven times by
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Richard II., six times by Henry IV., and once by Henry V.;" making
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thirty-five times in all.--_3 Lingard_, 50, note, Philad. ed.
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Coke says Magna Carta was confirmed thirty-two times.--Preface_ to_ 2
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_Inst_., p. 6.
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Lingard calls these "thirty-five successive ratifications" of the
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charter, "a sufficient proof how much its provisions were abhorred
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by the sovereign, and how highly they were prized by the nation."--_3
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Lingard_, 50.
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Mackintosh says, "For almost five centuries (that is, until 1688) it
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(Magna Carta) was appealed to as the decisive authority on behalf of
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the people, though commonly so far only as the necessities of each
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case demanded."--_Mackintosh's Hist. of Eng._ ch. 3. _45 Lardner's
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Cab. Cyc._, 221.
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Coke, who has labored so hard to overthrow the most vital principles of
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Magna Carta, and who, therefore, ought to be considered good authority
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when he speaks in its favor,[108] says:
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"It is called Magna Carta, not that it is great in quantity, for
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there be many voluminous charters commonly passed, specially in these
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later times, longer than this is; nor comparatively in respect that
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it is greater than _Charta de Foresta_, but in respect of the great
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importance and weightiness of the matter, as hereafter shall appear;
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and likewise for the same cause _Charta de Foresta_; and both of them
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are called _Magnæ Chartæ Libertatum Angliæ_, (The Great Charters of
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the Liberties of England.) ...
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"And it is also called _Charta Libertatum regni_, (Charter of the
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Liberties of the kingdom;) and upon great reason it is so called of
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the effect, _quia liberos facit_, (because it makes men free.)
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Sometime for the same cause (it is called) _communis libertas_,
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(common liberty,) and _le chartre des franchises_, (the charter of
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franchises.) ...
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"It was for the most part declaratory of the principal grounds of the
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fundamental laws of England, and for the residue it is additional to
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supply some defects of the common law....
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"Also, by the said act of 25 Edward I., (called _Confirmatio
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Chartarum_,) it is adjudged in parliament that the Great Charter and
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the Charter of the Forest shall be taken as the common law....
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"They (Magna Carta and Carta de Foresta) were, for the most part, but
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declarations of the ancient common laws of England, to the
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observation and keeping whereof, the king was bound and sworn.
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"After the making of Magna Charta, and Charta de Foresta, divers
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learned men in the laws, that I may use the words of the record, kept
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schools of the law in the city of London, and taught such as resorted
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to them the laws of the realm, taking their foundation of Magna
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Charta and Charta de Foresta.
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"And the said two charters have been confirmed, established, and
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commanded to be put in execution by thirty-two several acts of
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parliament in all.
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"This appeareth partly by that which hath been said, for that it hath
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so often been confirmed by the wise providence of so many acts of
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parliament.
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"And albeit judgments in the king's courts are of high regard in law,
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and _judicia_ (judgments) are accounted as _jurisdicta_, (the speech
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of the law itself,) yet it is provided by act of parliament, that if
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any judgment be given contrary to any of the points of the Great
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Charter and Charta de Foresta, by the justices, or by any other of
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the king's ministers, &c., it shall be undone, and holden for naught.
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"And that both the said charters shall be sent under the great seal
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to all cathedral churches throughout the realm, there to remain, and
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shall be read to the people twice every year.
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"The highest and most binding laws are the statutes which are
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established by parliament; and by authority of that highest court it
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is enacted (only to show their tender care of Magna Carta and Carta
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de Foresta) that if any statute be made contrary to the Great
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Charter, or the Charter of the Forest, that shall be holden for none;
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by which words all former statutes made against either of those
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charters are now repealed; and the nobles and great officers were to
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be sworn to the observation of Magna Charta and Charta de Foresta.
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"_Magna fuit quondam magnæ reverentia chartæ._" (Great was formerly
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the reverence for Magna Carta.)--_Coke's Proem to 2 Inst._, p. 1 to
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7.
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Coke also says, "All pretence of prerogative against Magna Charta is
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taken away."--_2 Inst._, 36.
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He also says, "That after this parliament (_52 Henry_ III., in 1267)
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neither Magna Carta nor Carta de Foresta was ever attempted to be
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impugned or questioned."--_2 Inst._, 102.[109]
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To give all the evidence of the authority of Magna Carta, it would be
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necessary to give the constitutional history of England since the year
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1215. This history would show that Magna Carta, although continually
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violated and evaded, was still acknowledged as law by the government,
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and was held up by the people as the great standard and proof of their
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rights and liberties. It would show also that the judicial tribunals,
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_whenever it suited their purposes to do so_, were in the habit of
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referring to Magna Carta as authority, in the same manner, and with the
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same real or pretended veneration, with which American courts now refer
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to the constitution of the United States, or the constitutions of the
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states. And, what is equally to the point, it would show that these same
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tribunals, the mere tools of kings and parliaments, would resort to the
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same artifices of assumption, _precedent_, construction, and false
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interpretation, to evade the requirements of Magna Carta, and to
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emasculate it of all its power for the preservation of liberty, that are
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resorted to by American courts to accomplish the same work on our
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American constitutions.
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I take it for granted, therefore, that if the authority of Magna Carta
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had rested simply upon its character as a _compact_ between the king and
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the people, it would have been forever binding upon the king, (that is,
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upon the government, for the king was the government,) in his
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legislative, judicial, and executive character; and that there was no
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_constitutional_ possibility of his escaping from its restraints, unless
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the people themselves should freely discharge him from them.
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But the authority of Magna Carta does not rest, either wholly or mainly,
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upon its character as a compact. For centuries before the charter was
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granted, its main principles constituted "the Law of the Land,"--the
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fundamental and constitutional law of the realm, which the kings were
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sworn to maintain. And the principal benefit of the charter was, that it
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contained a _written_ description and acknowledgment, by the king
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himself, of what the constitutional law of the kingdom was, which his
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coronation oath bound him to observe. Previous to Magna Carta, this
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constitutional law rested mainly in precedents, customs, and the
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memories of the people. And if the king could but make one innovation
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upon this law, without arousing resistance, and being compelled to
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retreat from his usurpation, he would cite that innovation as a
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precedent for another act of the same kind; next, assert a custom; and,
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finally, raise a controversy as to what the Law of the Land really was.
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The great object of the barons and people, in demanding from the king a
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written description and acknowledgment of the Law of the Land, was to
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put an end to all disputes of this kind, and to put it out of the power
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of the king to plead any misunderstanding of the constitutional law of
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the kingdom. And the charter, no doubt, accomplished very much in this
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way. After Magna Carta, it required much more audacity, cunning, or
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strength, on the part of the king, than it had before, to invade the
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people's liberties with impunity. Still, Magna Carta, like all other
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written constitutions, proved inadequate to the full accomplishment of
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its purpose; for when did a parchment ever have power adequately to
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restrain a government, that had either cunning to evade its
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requirements, or strength to overcome those who attempted its defence?
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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 and 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.[110]
|
||
|
|
||
|
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 judicium 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."[111]
|
||
|
|
||
|
"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."[112]
|
||
|
|
||
|
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."[113]
|
||
|
|
||
|
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."[114]
|
||
|
|
||
|
[Footnote 106: _Mackintosh's Hist. of Eng._, ch. 3. _45 Lardner's Cab.
|
||
|
Cyc._, 354.]
|
||
|
|
||
|
[Footnote 107: "_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_.]
|
||
|
|
||
|
[Footnote 108: He probably speaks in its favor only to blind the eyes of
|
||
|
the people to the frauds he has attempted upon its true meaning.]
|
||
|
|
||
|
[Footnote 109: 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 falsehood 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,(page 101) 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, _according to the statutes
|
||
|
in parliament agreed on_, and the laws and customs of the same."[115]
|
||
|
|
||
|
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_,"[116] 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.]
|
||
|
|
||
|
[Footnote 110: Under the head of "_John._"]
|
||
|
|
||
|
[Footnote 111: _4 Blackstone_, 349-50.]
|
||
|
|
||
|
[Footnote 112: _3 Blackstone_, 379.]
|
||
|
|
||
|
[Footnote 113: _Hume_, ch. 2.]
|
||
|
|
||
|
[Footnote 114: Page 203, 5th edition, 1721.]
|
||
|
|
||
|
[Footnote 115: St. 1 _William and Mary_, ch. 6, (1688.)]
|
||
|
|
||
|
[Footnote 116: 4 _Inst._, 36.]
|