trial-by-jury-book/edited/11.markdown

# AUTHORITY OF MAGNA CARTA


Probably no political compact between king and people was ever entered
into in a manner to settle more authoritatively the fundamental law of a
nation, than was Magna Carta. Probably no people were ever more united
and resolute in demanding from their king a definite and unambiguous
acknowledgment of their rights and liberties, than were the English at
that time. Probably no king was ever more completely stripped of all
power to maintain his throne, and at the same time resist the demands of
his people, than was John on the 15th day of June, 1215. Probably no
king ever consented, more deliberately or explicitly, to hold his throne
subject to specific and enumerated limitations upon his power, than did
John when he put his seal to the Great Charter of the Liberties of
England. And if any political compact between king and people was ever
valid to settle the liberties of the people, or to limit the power of
the crown, that compact is now to be found in Magna Carta. If,
therefore, the constitutional authority of Magna Carta had rested solely
upon the compact of John with his people, that authority would have been
entitled to stand forever as the supreme law of the land, unless revoked
by the will of the people themselves.

But the authority of Magna Carta does not rest alone upon the compact
with _John_. When, in the next year, (1216,) his son, Henry III., came
to the throne, the charter was ratified by him, and again in 1217, and
again in 1225, in substantially the same form, and especially without
allowing any new powers, legislative, judicial, or executive, to the
king or his judges, and without detracting in the least from the powers
of the jury. And from the latter date to this, the charter has remained
unchanged.

In the course of two hundred years the charter was confirmed by Henry
and his successors more than thirty times. And although they were guilty
of numerous and almost continual breaches of it, and were constantly
seeking to evade it, yet such were the spirit, vigilance and courage of
the nation, that the kings held their thrones only on the condition of
their renewed and solemn promises of observance. And it was not until
1429, (as will be more fully shown hereafter,) when a truce between
themselves, and a formal combination against the mass of the people, had
been entered into, by the king, the nobility, and the “_forty shilling
freeholders_,” (a class whom Mackintosh designates as “_a few
freeholders then accounted wealthy_,”[^106]) by the exclusion of all
others than such freeholders from all voice in the election of knights
to represent the counties in the House of Commons, that a repetition of
these confirmations of Magna Carta ceased to be demanded and
obtained.[^107]

The terms and the formalities of some of these “confirmations” make them
worthy of insertion at length.

Hume thus describes one which took place in the 38th year of Henry III.
(1253):

> “But as they (the barons) had experienced his (the king’s) frequent
> breach of promise, they required that he should ratify the Great
> Charter in a manner still more authentic and solemn than any which he
> had hitherto employed. All the prelates and abbots were assembled.
> They held burning tapers in their hands. The Great Charter was read
> before them. They denounced the sentence of excommunication against
> every one who should thenceforth violate that fundamental law. They
> threw their tapers on the ground, and exclaimed, _May the soul of
> every one who incurs this sentence so stink and corrupt in hell!_ The
> king bore a part in this ceremony, and subjoined, ‘So help me God! I
> will keep all these articles inviolate, as I am a man, as I am a
> Christian, as I am a knight, and as I am a king crowned and
> anointed.’”—_Hume_, ch. 12. See also _Blackstone’s Introd. to the
> Charters. Black. Law Tracts_, Oxford ed., p. 332. _Mackintosh’s Hist.
> of Eng._, ch. 3. _Lardner’s Cab. Cyc._, vol. 45, p. 233-4.

The following is the form of “the sentence of excommunication” referred
to by Hume:

> “_The Sentence of Curse, Given by the Bishops, against the Breakers
> of the Charters._

> “The year of our Lord a thousand two hundred and fifty-three, the
> third day of May, in the great Hall of the King at Westminster, _in
> the presence, and by the assent, of the Lord Henry, by the Grace of
> God King of England_, and the Lords Richard, Earl of Cornwall, his
> brother, Roger (Bigot) Earl of Norfolk and Suffolk, marshal of
> England, Humphrey, Earl of Hereford, Henry, Earl of Oxford, John,
> Earl of Warwick, and other estates of the Realm of England: We,
> Boniface, by the mercy of God Archbishop of Canterbury, Primate of
> all England, F. of London, H. of Ely, S. of Worcester, E. of Lincoln,
> W. of Norwich, P. of Hereford, W. of Salisbury, W. of Durham, R. of
> Exeter, M. of Carlisle, W. of Bath, E. of Rochester, T. of Saint
> David’s, Bishops, apparelled in Pontificals, with tapers burning,
> against the breakers of the Church’s Liberties, and of the Liberties
> or free customs of the Realm of England, and especially of those
> which are contained in the Charter of the Common Liberties of the
> Realm, and the Charter of the Forest, have solemnly denounced the
> sentence of Excommunication in this form. By the authority of
> Almighty God, the Father, the Son, and the Holy Ghost, and of the
> glorious Mother of God, and perpetual Virgin Mary, of the blessed
> Apostles Peter and Paul, and of all apostles, of the blessed Thomas,
> Archbishop and Martyr, and of all martyrs, of blessed Edward of
> England, and of all Confessors and virgins, and of all the saints of
> heaven: We excommunicate, accurse, and from the thresholds
> (liminibus) of our Holy Mother the Church, We sequester, all those
> that hereafter willingly and maliciously deprive or spoil the Church
> of her right: And all those that by any craft or wiliness do violate,
> break, diminish, or change the Church’s Liberties, or the ancient
> approved customs of the Realm, and especially the Liberties and free
> Customs contained in the Charters of the Common Liberties, and of the
> Forest, conceded by our Lord the King, to Archbishops, Bishops, and
> other Prelates of England; and likewise to the Earls, Barons,
> Knights, and other Freeholders of the Realm: And all that secretly,
> or openly, by deed, word, or counsel, _do make statutes, or observe
> them being made_, and that bring in Customs, or keep them when they
> be brought in, against the said Liberties, or any of them, the
> Writers and Counsellors of said statutes, and the Executors of them,
> and all those that shall presume to judge according to them. All and
> every which persons before mentioned, that wittingly shall commit
> anything of the premises, let them well know that they incur the
> aforesaid sentence, _ipso facto_, (i.e., upon the deed being done.)
> And those that ignorantly do so, and be admonished, except they
> reform themselves within fifteen days after the time of the
> admonition, and make full satisfaction for that they have done, at
> the will of the ordinary, shall be from that time forth included in
> the same sentence. And with the same sentence we burden all those
> that presume to perturb the peace of our sovereign Lord the King, and
> of the Realm. To the perpetual memory of which thing, We, the
> aforesaid Prelates, have put our seals to these presents.”—_Statutes
> of the Realm_, vol. 1, p. 6. _Ruffhead’s Statutes_, vol. 1, p. 20.

One of the Confirmations of the Charters, by Edward I., was by statute,
in the 25th year of his reign, (1297,) in the following terms. The
statute is usually entitled “_Confirmatio Cartarum_,” (Confirmation of
the Charters.)

> _Ch. 1._ “Edward, by the Grace of God, King of England, Lord of
> Ireland, and Duke of Guyan, To all those that these presents shall
> hear or see, Greeting. Know ye, that We, to the honor of God, and of
> Holy Church, and to the profit of our Realm, have granted, for us and
> our heirs, that the Charter of Liberties, and the Charter of the
> Forest, which were made by common assent of all the Realm, in the
> time of King Henry our Father, shall be kept in every point without
> breach. And we will that the same Charters shall be sent under our
> seal, as well to our justices of the Forest, as to others, and to all
> Sheriffs of shires, and to all our other officers, and to all our
> cities throughout the Realm, together with our writs, in the which it
> shall be contained, that they cause the aforesaid Charters to be
> published, and to declare to the people that We have confirmed them
> at all points; and to our Justices, Sheriffs, Mayors, and other
> ministers, which under us have the Laws of our Land to guide, that
> they allow the same Charters, in all their points, in pleas before
> them, and in judgment; that is, to wit, the Great Charter as the
> Common Law, and the Charter of the Forest for the wealth of our
> Realm.

> _Ch. 2._ “And we will that if any judgment be given from henceforth
> contrary to the points of the charters aforesaid by the justices, or
> by any others our ministers that hold plea before them, against the
> points of the Charters, it shall be undone and holden for naught.

> _Ch. 3._ “And we will, that the same Charters shall be sent, under
> our seal, to Cathedral Churches throughout our Realm, there to
> remain, and shall be read before the people two times in the year.

> _Ch. 4._ “And that all Archbishops and Bishops shall pronounce the
> sentence of excommunication against all those that by word, deed, or
> counsel, do contrary to the foresaid charters, or that in any point
> break or undo them. And that the said Curses be twice a year
> denounced and published by the prelates aforesaid. And if the same
> prelates, or any of them, be remiss in the denunciation of the said
> sentences, the Archbishops of Canterbury and York, for the time
> being, shall compel and distrain them to make the denunciation in the
> form aforesaid.”—_St. 25 Edward I._, (1297.) _Statutes of the
> Realm_, vol. 1, p. 123.

It is unnecessary to repeat the terms of the various confirmations, most
of which were less formal than those that have been given, though of
course equally authoritative. Most of them are brief, and in the form of
a simple statute, or promise, to the effect that “The Great Charter, and
the Charter of the Forest, shall be firmly kept and maintained in all
points.” They are to be found printed with the other statutes of the
realm. One of them, after having “again granted, renewed and confirmed”
the charters, requires as follows:

> “That the Charters be delivered to every sheriff of England under the
> king’s seal, to be read four times in the year before the people in
> the full county,” (that is, at the county court,) “that is, to wit,
> the next county (court) after the feast of Saint Michael, and the
> next county (court) after Christmas, and at the next county (court)
> after Easter, and at the next county (court) after the feast of Saint
> John.”—_28 Edward I._, ch. 1, (1300.)

> Lingard says, “The Charter was ratified four times by Henry III.,
> twice by Edward I., fifteen times by Edward III., seven times by
> Richard II., six times by Henry IV., and once by Henry V.;” making
> thirty-five times in all.—_3 Lingard_, 50, note, Philad. ed.

Coke says Magna Carta was confirmed thirty-two times.—Preface_ to_ 2
_Inst_., p. 6.

> Lingard calls these “thirty-five successive ratifications” of the
> charter, “a sufficient proof how much its provisions were abhorred
> by the sovereign, and how highly they were prized by the nation.”—_3
> Lingard_, 50.

> Mackintosh says, “For almost five centuries (that is, until 1688) it
> (Magna Carta) was appealed to as the decisive authority on behalf of
> the people, though commonly so far only as the necessities of each
> case demanded.”—_Mackintosh’s Hist. of Eng._ ch. 3. _45 Lardner’s
> Cab. Cyc._, 221.

Coke, who has labored so hard to overthrow the most vital principles of
Magna Carta, and who, therefore, ought to be considered good authority
when he speaks in its favor,[^108] says:

> “It is called Magna Carta, not that it is great in quantity, for
> there be many voluminous charters commonly passed, specially in these
> later times, longer than this is; nor comparatively in respect that
> it is greater than _Charta de Foresta_, but in respect of the great
> importance and weightiness of the matter, as hereafter shall appear;
> and likewise for the same cause _Charta de Foresta_; and both of them
> are called _Magnæ Chartæ Libertatum Angliæ_, (The Great Charters of
> the Liberties of England.) ...

> “And it is also called _Charta Libertatum regni_, (Charter of the
> Liberties of the kingdom;) and upon great reason it is so called of
> the effect, _quia liberos facit_, (because it makes men free.)
> Sometime for the same cause (it is called) _communis libertas_,
> (common liberty,) and _le chartre des franchises_, (the charter of
> franchises.) ...

> “It was for the most part declaratory of the principal grounds of the
> fundamental laws of England, and for the residue it is additional to
> supply some defects of the common law....

> “Also, by the said act of 25 Edward I., (called _Confirmatio
> Chartarum_,) it is adjudged in parliament that the Great Charter and
> the Charter of the Forest shall be taken as the common law....

> “They (Magna Carta and Carta de Foresta) were, for the most part, but
> declarations of the ancient common laws of England, to the
> observation and keeping whereof, the king was bound and sworn.

> “After the making of Magna Charta, and Charta de Foresta, divers
> learned men in the laws, that I may use the words of the record, kept
> schools of the law in the city of London, and taught such as resorted
> to them the laws of the realm, taking their foundation of Magna
> Charta and Charta de Foresta.

> “And the said two charters have been confirmed, established, and
> commanded to be put in execution by thirty-two several acts of
> parliament in all.

> “This appeareth partly by that which hath been said, for that it hath
> so often been confirmed by the wise providence of so many acts of
> parliament.

> “And albeit judgments in the king’s courts are of high regard in law,
> and _judicia_ (judgments) are accounted as _jurisdicta_, (the speech
> of the law itself,) yet it is provided by act of parliament, that if
> any judgment be given contrary to any of the points of the Great
> Charter and Charta de Foresta, by the justices, or by any other of
> the king’s ministers, &c., it shall be undone, and holden for naught.

> “And that both the said charters shall be sent under the great seal
> to all cathedral churches throughout the realm, there to remain, and
> shall be read to the people twice every year.

> “The highest and most binding laws are the statutes which are
> established by parliament; and by authority of that highest court it
> is enacted (only to show their tender care of Magna Carta and Carta
> de Foresta) that if any statute be made contrary to the Great
> Charter, or the Charter of the Forest, that shall be holden for none;
> by which words all former statutes made against either of those
> charters are now repealed; and the nobles and great officers were to
> be sworn to the observation of Magna Charta and Charta de Foresta.

> “_Magna fuit quondam magnæ reverentia chartæ._” (Great was formerly
> the reverence for Magna Carta.)—_Coke’s Proem to 2 Inst._, p. 1 to
> 7.

Coke also says, “All pretence of prerogative against Magna Charta is
taken away.”—_2 Inst._, 36.

He also says, “That after this parliament (_52 Henry_ III., in 1267)
neither Magna Carta nor Carta de Foresta was ever attempted to be
impugned or questioned.”—_2 Inst._, 102.[^109]

To give all the evidence of the authority of Magna Carta, it would be
necessary to give the constitutional history of England since the year
1215. This history would show that Magna Carta, although continually
violated and evaded, was still acknowledged as law by the government,
and was held up by the people as the great standard and proof of their
rights and liberties. It would show also that the judicial tribunals,
_whenever it suited their purposes to do so_, were in the habit of
referring to Magna Carta as authority, in the same manner, and with the
same real or pretended veneration, with which American courts now refer
to the constitution of the United States, or the constitutions of the
states. And, what is equally to the point, it would show that these same
tribunals, the mere tools of kings and parliaments, would resort to the
same artifices of assumption, _precedent_, construction, and false
interpretation, to evade the requirements of Magna Carta, and to
emasculate it of all its power for the preservation of liberty, that are
resorted to by American courts to accomplish the same work on our
American constitutions.

I take it for granted, therefore, that if the authority of Magna Carta
had rested simply upon its character as a _compact_ between the king and
the people, it would have been forever binding upon the king, (that is,
upon the government, for the king was the government,) in his
legislative, judicial, and executive character; and that there was no
_constitutional_ possibility of his escaping from its restraints, unless
the people themselves should freely discharge him from them.

But the authority of Magna Carta does not rest, either wholly or mainly,
upon its character as a compact. For centuries before the charter was
granted, its main principles constituted “the Law of the Land,”—the
fundamental and constitutional law of the realm, which the kings were
sworn to maintain. And the principal benefit of the charter was, that it
contained a _written_ description and acknowledgment, by the king
himself, of what the constitutional law of the kingdom was, which his
coronation oath bound him to observe. Previous to Magna Carta, this
constitutional law rested mainly in precedents, customs, and the
memories of the people. And if the king could but make one innovation
upon this law, without arousing resistance, and being compelled to
retreat from his usurpation, he would cite that innovation as a
precedent for another act of the same kind; next, assert a custom; and,
finally, raise a controversy as to what the Law of the Land really was.
The great object of the barons and people, in demanding from the king a
written description and acknowledgment of the Law of the Land, was to
put an end to all disputes of this kind, and to put it out of the power
of the king to plead any misunderstanding of the constitutional law of
the kingdom. And the charter, no doubt, accomplished very much in this
way. After Magna Carta, it required much more audacity, cunning, or
strength, on the part of the king, than it had before, to invade the
people’s liberties with impunity. Still, Magna Carta, like all other
written constitutions, proved inadequate to the full accomplishment of
its purpose; for when did a parchment ever have power adequately to
restrain a government, that had either cunning to evade its
requirements, or strength to overcome those who attempted its defence?
The work of usurpation, therefore, though seriously checked, still went
on, to a great extent, after Magna Carta. Innovations upon the Law of
the Land are still made by the government. One innovation was cited as a
precedent; precedents made customs; and customs became laws, so far as
practice was concerned; until the government, composed of the king, the
high functionaries of the church, the nobility, a House of Commons
representing the “forty shilling freeholders,” and a dependent and
servile judiciary, all acting in conspiracy against the mass of the
people, became practically absolute, as it is at this day.

As proof that Magna Carta embraced little else than what was previously
recognized as the common law, or Law of the Land, I repeat some
authorities that have been already cited.

> Crabbe says, “It is admitted on all hands that it (Magna Carta)
> contains nothing but what was confirmatory of the common law and the
> ancient usages of the realm; and is, properly speaking, only an
> enlargement of the charter of Henry I. and his
> successors.”—_Crabbe’s Hist. of the Eng. Law_, p. 127.

> Blackstone says, “It is agreed by all our historians that the Great
> Charter of King John was, for the most part, compiled from the
> ancient customs of the realm, or the laws of Edward the Confessor; by
> which they mean the old common law which was established under our
> Saxon princes.”—_Blackstone’s Introd. to the Charters._ See
> _Blackstone’s Law Tracts_, Oxford ed., p. 289.

> Coke says, “The common law is the most general and ancient law of
> the realm.... The common law appeareth in the statute of _Magna
> Carta_, and other ancient statutes, (which for the most part are
> affirmations of the common law,) in the original writs, in judicial
> records, and in our books of terms and years.”—_1 Inst._, 115 b.

> Coke also says, “It (Magna Carta) was for the most part declaratory
> of the principal grounds of the fundamental laws of England, and for
> the residue it was additional to supply some defects of the common
> law.... They (Magna Carta and Carta de Foresta) were, for the most
> part, but declarations of the ancient common laws of England, _to the
> observation and keeping whereof the king was bound and
> sworn_.”—_Preface to 2 Inst._, p. 3 and 5.

> Hume says, “We may now, from the tenor of this charter, (Magna
> Carta,) conjecture what those laws were of King Edward, (the
> Confessor,) which the English nation during so many generations still
> desired, with such an obstinate perseverance, to have recalled and
> established. They were chiefly these latter articles of Magna Carta;
> and the barons who, at the beginning of these commotions, demanded
> the revival of the Saxon laws, undoubtedly thought that they had
> sufficiently satisfied the people, by procuring them this concession,
> which comprehended the principal objects to which they had so long
> aspired.”—_Hume_, ch. 11.

Edward the First confessed that the Great Charter was substantially
identical with the common law, as far as it went, when he commanded his
justices to allow “the Great Charter as the Common Law,” “in pleas
before them, and in judgment,” as has been already cited in this
chapter.—_25 Edward_ I., ch. 1, (1297.)

In conclusion of this chapter, it may be safely asserted that the
veneration, attachment, and pride, which the English nation, for more
than six centuries, have felt towards Magna Carta, are in their nature
among the most irrefragable of all proofs that it was the fundamental
law of the land, and constitutionally binding upon the government; for,
otherwise, it would have been, in their eyes, an unimportant and
worthless thing. What those sentiments were I will use the words of
others to describe,—the words, too, of men, who, like all modern
authors who have written on the same topic, had utterly inadequate ideas
of the true character of the instrument on which they lavished their
eulogiums.

Hume, speaking of the Great Charter and the Charter of the Forest, as
they were confirmed by Henry III., in 1217, says:

> “Thus these famous charters were brought nearly to the shape in which
> they have ever since stood; and they were, during many generations,
> the peculiar favorites of the English nation, and esteemed the most
> sacred rampart to national liberty and independence. As they secured
> the rights of all orders of men, they were anxiously defended by all,
> and became the basis, in a manner, of the English monarchy, and a
> kind of original contract, which both limited the authority of the
> king and ensured the conditional allegiance of his subjects. Though
> often violated, they were still claimed by the nobility and people;
> and, as no precedents were supposed valid that infringed them, they
> rather acquired than lost authority, from the frequent attempts made
> against them in several ages, by regal and arbitrary power.”—_Hume_,
> ch. 12.

> Mackintosh says, “It was understood by the simplest of the unlettered
> age for whom it was intended. It was remembered by them.... For
> almost five centuries it was appealed to as the decisive authority on
> behalf of the people.... To have produced it, to have preserved it,
> to have matured it, constitute the immortal claim of England on the
> esteem of mankind. Her Bacons 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.]