2023-08-03 21:50:47 +00:00
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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
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on, to a great extent, after Magna Carta. Innovations upon the Law of
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the Land are still made by the government. One innovation was cited as a
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precedent; precedents made customs; and customs became laws, so far as
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practice was concerned; until the government, composed of the king, the
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high functionaries of the church, the nobility, a House of Commons
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representing the “forty shilling freeholders,” and a dependent and
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servile judiciary, all acting in conspiracy against the mass of the
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people, became practically absolute, as it is at this day.
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As proof that Magna Carta embraced little else than what was previously
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recognized as the common law, or Law of the Land, I repeat some
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authorities that have been already cited.
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> Crabbe says, “It is admitted on all hands that it (Magna Carta)
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> contains nothing but what was confirmatory of the common law and the
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> ancient usages of the realm; and is, properly speaking, only an
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> enlargement of the charter of Henry I. and his
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> successors.”—_Crabbe’s Hist. of the Eng. Law_, p. 127.
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> Blackstone says, “It is agreed by all our historians that the Great
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> Charter of King John was, for the most part, compiled from the
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> ancient customs of the realm, or the laws of Edward the Confessor; by
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> which they mean the old common law which was established under our
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> Saxon princes.”—_Blackstone’s Introd. to the Charters._ See
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> _Blackstone’s Law Tracts_, Oxford ed., p. 289.
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> Coke says, “The common law is the most general and ancient law of
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> the realm.... The common law appeareth in the statute of _Magna
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> Carta_, and other ancient statutes, (which for the most part are
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> affirmations of the common law,) in the original writs, in judicial
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> records, and in our books of terms and years.”—_1 Inst._, 115 b.
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> Coke also says, “It (Magna Carta) was for the most part declaratory
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> of the principal grounds of the fundamental laws of England, and for
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> the residue it was additional to supply some defects of the common
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> law.... They (Magna Carta and Carta de Foresta) were, for the most
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> part, but declarations of the ancient common laws of England, _to the
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> observation and keeping whereof the king was bound and
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> sworn_.”—_Preface to 2 Inst._, p. 3 and 5.
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> Hume says, “We may now, from the tenor of this charter, (Magna
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> Carta,) conjecture what those laws were of King Edward, (the
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> Confessor,) which the English nation during so many generations still
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> desired, with such an obstinate perseverance, to have recalled and
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> established. They were chiefly these latter articles of Magna Carta;
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> and the barons who, at the beginning of these commotions, demanded
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> the revival of the Saxon laws, undoubtedly thought that they had
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> sufficiently satisfied the people, by procuring them this concession,
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> which comprehended the principal objects to which they had so long
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> aspired.”—_Hume_, ch. 11.
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Edward the First confessed that the Great Charter was substantially
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identical with the common law, as far as it went, when he commanded his
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justices to allow “the Great Charter as the Common Law,” “in pleas
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before them, and in judgment,” as has been already cited in this
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chapter.—_25 Edward_ I., ch. 1, (1297.)
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In conclusion of this chapter, it may be safely asserted that the
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veneration, attachment, and pride, which the English nation, for more
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than six centuries, have felt towards Magna Carta, are in their nature
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among the most irrefragable of all proofs that it was the fundamental
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law of the land, and constitutionally binding upon the government; for,
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otherwise, it would have been, in their eyes, an unimportant and
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worthless thing. What those sentiments were I will use the words of
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others to describe,—the words, too, of men, who, like all modern
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authors who have written on the same topic, had utterly inadequate ideas
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of the true character of the instrument on which they lavished their
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eulogiums.
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Hume, speaking of the Great Charter and the Charter of the Forest, as
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they were confirmed by Henry III., in 1217, says:
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> “Thus these famous charters were brought nearly to the shape in which
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> they have ever since stood; and they were, during many generations,
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> the peculiar favorites of the English nation, and esteemed the most
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> sacred rampart to national liberty and independence. As they secured
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> the rights of all orders of men, they were anxiously defended by all,
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> and became the basis, in a manner, of the English monarchy, and a
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> kind of original contract, which both limited the authority of the
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> king and ensured the conditional allegiance of his subjects. Though
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> often violated, they were still claimed by the nobility and people;
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> and, as no precedents were supposed valid that infringed them, they
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> rather acquired than lost authority, from the frequent attempts made
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> against them in several ages, by regal and arbitrary power.”—_Hume_,
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> ch. 12.
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> Mackintosh says, “It was understood by the simplest of the unlettered
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> age for whom it was intended. It was remembered by them.... For
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> almost five centuries it was appealed to as the decisive authority on
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> behalf of the people.... To have produced it, to have preserved it,
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> to have matured it, constitute the immortal claim of England on the
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> esteem of mankind. Her Bacons and Shakspeares, her Miltons and
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> Newtons, with all the truth which they have revealed, and all the
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> generous virtues which they have inspired, are of inferior value when
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> compared with the subjection of men and their rulers to the
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> principles of justice; if, indeed, it be not more true that these
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> mighty spirits could not have been formed except under equal laws,
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> nor roused to full activity without the influence of that spirit
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> which the Great Charter breathed over their
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> forefathers.”—_Mackintosh’s Hist. of Eng._, ch. 3.[^110]
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Of the Great Charter, the trial by jury is the vital part, and the only
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part that places the liberties of the people in their own keeping. Of
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this Blackstone says:
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> “The trial by jury, or the country, _per patriam_, is also that trial
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> by the peers of every Englishman, which, as the grand bulwark of his
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> liberties, is secured to him by the Great Charter; _nullus liber homo
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> capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur,
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> nisi per legale judicium parium suorum, vel per legem terrae...._
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> The liberties of England cannot but subsist so long as this palladium
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> remains sacred and inviolate, not only from all open attacks, which
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> none will be so hardy as to make, but also from all secret
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> machinations which may sap and undermine it.”[^111]
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> “The trial by jury ever has been, and I trust ever will be, looked
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> upon as the glory of the English law.... It is the most transcendent
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> privilege which any subject can enjoy or wish for, that he cannot be
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> affected in his property, his liberty, or his person, but by the
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> unanimous consent of twelve of his neighbors and equals.”[^112]
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> Hume calls the trial by jury “An institution admirable in itself, and
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> the best calculated for the preservation of liberty and the
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> administration of justice, that ever was devised by the wit of
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> man.”[^113]
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An old book, called “English Liberties,” says:
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> “English Parliaments have all along been most zealous for preserving
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> this great Jewel of Liberty, trials by juries having no less than
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> fifty-eight several times, since the Norman Conquest, been
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> established and confirmed by the legislative power, no one privilege
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> besides having been ever so often remembered in parliament.”[^114]
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2023-08-04 00:46:41 +00:00
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[^106]: _Mackintosh’s Hist. of Eng._, ch. 3. _45 Lardner’s Cab.
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Cyc._, 354.
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[^107]: “_Forty shilling freeholders_” were those “people
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dwelling and resident in the same counties, whereof every one of them
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shall have free land or tenement to the value of forty shillings by the
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year at the least above all charges.” By statute _8 Henry_ 6, ch. 7,
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(1429,) these freeholders only were allowed to vote for members of
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Parliament from the _counties_.
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[^108]: He probably speaks in its favor only to blind the eyes of
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the people to the frauds he has attempted upon its true meaning.
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[^109]: It will be noticed that Coke calls these confirmations of
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the charter “acts of parliament,” instead of acts of the king alone.
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This needs explanation.
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It was one of Coke’s ridiculous pretences, that laws anciently enacted
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by the king, at the request, or with the consent, or by the advice, of
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his parliament, was “an act of parliament,” instead of the act of the
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king. And in the extracts cited, he carries this idea so far as to
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pretend that the various confirmations of the Great Charter were “acts
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of parliament,” instead of the acts of the kings. He might as well have
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pretended that the original grant of the Charter was an “act of
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parliament;” because it was not only granted at the request, and with
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the consent, and by the advice, but on the compulsion even, of those who
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commonly constituted his parliaments. Yet this did not make the grant of
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the charter “an act of parliament.” It was simply an act of the king.
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The object of Coke, in this pretence, was to furnish some color for the
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palpable falsehood that the legislative authority, which parliament was
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trying to assume in his own day, and which it finally succeeded in
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obtaining, had a precedent in the ancient constitution of the kingdom.
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There would be as much reason in saying that, because the ancient kings
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were in the habit of passing laws in special answer to the _petitions_
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of their subjects, therefore those _petitioners_ were a part of the
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legislative power of the kingdom.
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One great objection to this argument of Coke, for the legislative
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authority of the ancient parliaments, is that a very large—probably
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much the larger—number of legislative acts were done _without_ the
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advice, consent, request, or even presence, of a parliament. Not only
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were many formal statutes passed without any mention of the consent or
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advice of parliament, but a simple order of the king in council, or a
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simple proclamation, writ, or letter under seal, issued by his command,
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had the same force as what Coke calls “an act of parliament.” And this
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practice continued, to a considerable extent at least, down to Coke’s
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own time.
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The kings were always in the habit of consulting their parliaments, more
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or less, in regard to matters of legislation,—not because their consent
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was constitutionally necessary, but in order to make influence in favor
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of their laws, and thus induce the people to observe them, and the
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juries to enforce them.
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The general duties of the ancient parliaments were not legislative, but
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judicial, as will be shown more fully hereafter. The _people_ were not
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represented in the parliaments at the time of Magna Carta, but only the
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archbishops, bishops, earls, barons, and knights; so that little or
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nothing would have been gained for liberty by Coke’s idea that
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parliament had a legislative power. He would only have substituted an
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aristocracy for a king. Even after the Commons were represented in
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parliament, they for some centuries appeared only as _petitioners_,
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except in the matter of taxation, when their _consent_ was asked. And
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almost the only source of their influence on legislation was this: that
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they would sometimes refuse their consent to the taxation, unless the
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king would pass such laws as they petitioned for; or, as would seem to
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have been much more frequently the case, unless he would abolish such
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laws and practices as they remonstrated against.
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The _influence_ or power of parliament, and especially of the Commons,
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in the general legislation of the country, was a thing of slow growth,
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having its origin in a device of the king to get money contrary to law,
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(as will be seen in the next volume,) and not at all a part of the
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constitution of the kingdom, nor having its foundation in the consent of
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the people. The power, _as at present exercised_, was not fully
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established until 1688, (near five hundred years after Magna Carta,)
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when the House of Commons (falsely so called) had acquired such
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influence as the representative, _not of the people, but of the wealth,
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of the nation_, that they compelled the king to discard the oath fixed
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by the constitution of the kingdom; (which oath has been already given
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in a former chapter,(page 101) and was, in substance, to preserve and
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execute the Common Law, the Law of the Land,—or, in the words of the
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oath, “_the just laws and customs which the common people had chosen_;”)
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and to swear that he would “govern the people of this kingdom of
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England, and the dominions thereto belonging, _according to the statutes
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in parliament agreed on_, and the laws and customs of the same.”[^115]
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The passage and enforcement of this statute, and the assumption of this
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oath by the king, were plain violations of the English constitution,
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inasmuch as they abolished, so far as such an oath could abolish, the
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legislative power of the king, and also “those just laws and customs
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which the common people (through their juries) had chosen,” and
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substituted the will of parliament in their stead.
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Coke was a great advocate for the legislative power of parliament, as a
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means of restraining the power of the king. As he denied all power to
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_juries_ to decide upon the obligation of laws, and as he held that the
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legislative power was “_so transcendent and absolute as (that) it cannot
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be confined, either for causes or persons, within any bounds_,”[^116] he
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was perhaps honest in holding that it was safer to trust this terrific
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power in the hands of parliament, than in the hands of the king. His
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error consisted in holding that either the king or parliament had any
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such power, or that they had any power at all to pass laws that should
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be binding upon a jury.
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These declarations of Coke, that the charter was confirmed by thirty-two
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“acts of parliament,” have a mischievous bearing in another respect.
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They tend to weaken the authority of the charter, by conveying the
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impression that the charter itself might be _abolished_ by “act of
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parliament.” Coke himself admits that it could not be revoked or
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rescinded by the _king_; for he says, “All pretence of prerogative
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against Magna Carta is taken away.” (_2 Inst._, 36.)
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He knew perfectly well, and the whole English nation knew, that the
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_king_ could not lawfully infringe Magna Carta. Magna Carta, therefore,
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made it impossible that absolute power could ever be practically
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established in England, _in the hands of the king_. Hence, as Coke was
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an advocate for absolute power,—that is, for a legislative power “so
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transcendent and absolute as (that) it cannot be confined, either for
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causes or persons, within any bounds,”—there was no alternative for him
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but to vest this absolute power in parliament. Had he not vested it in
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parliament, he would have been obliged to abjure it altogether, and to
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confess that the people, _through their juries_, had the right to judge
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of the obligation of all legislation whatsoever; in other words, that
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they had the right to confine the government within the limits of “those
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just laws and customs which the common people (acting as jurors) had
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chosen.” True to his instincts, as a judge, and as a tyrant, he assumed
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that this absolute power was vested in the hands of parliament.
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But the truth was that, as by the English constitution parliament had no
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authority at all for _general_ legislation, it could no more confirm,
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than it could abolish, Magna Carta.
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These thirty-two confirmations of Magna Carta, which Coke speaks of as
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“acts of parliament,” were merely acts of the king. The parliaments,
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indeed, by refusing to grant him money, except on that condition, and
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otherwise, had contributed to oblige him to make the confirmations; just
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as they had helped to oblige him by arms to grant the charter in the
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first place. But the confirmations themselves were nevertheless
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constitutionally, as well as formally, the acts of the king alone.
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[^110]: Under the head of “_John._”
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[^111]: _4 Blackstone_, 349-50.
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[^112]: _3 Blackstone_, 379.
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[^113]: _Hume_, ch. 2.
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[^114]: Page 203, 5th edition, 1721.
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[^115]: St. 1 _William and Mary_, ch. 6, (1688.)
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[^116]: 4 _Inst._, 36.
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