Civil Government in the United States Considered with Some Reference to Its Origins Part 42

VII. And for so much as the more part of the commonalty of the realm find themselves sore grieved with the matelote of wools, that is to wit, a toll of forty s.h.i.+llings for every sack of wool, and have made pet.i.tion to us to release the same; we, at their requests, have clearly released it, and have granted for us and our heirs that we shall not take such thing nor any other without their common a.s.sent and goodwill; saving to us and our heirs the custom of wools, skins, and leather, granted before by the commonalty aforesaid. In witness of which things we have caused these our letters to be made patents.

Witness Edward our son, at London, the 10th day of October, the five-and-twentieth of our reign.

And be it remembered that this same Charter, in the same terms, word for word, was sealed in Flanders under the King's Great Seal, that is to say, at Ghent, the 5th day of November, in the 52th year of the reign of our aforesaid Lord the King, and sent into England.

The words of this important doc.u.ment, from Professor Stubbs's translation, are given as the best explanation of the const.i.tutional position and importance of the Charters of John and Henry III. See historical notice in Stubbs's _Doc.u.ments Ill.u.s.trative of English History_, p. 477. This is far the most important of the numerous ratifications of the Great Charter. Hallam calls it "that famous statute, inadequately denominated the Confirmation of the Charters, because it added another pillar to our const.i.tution, not less important than the Great Charter itself." It solemnly confirmed the two Charters, the Charter of the Forest (issued by Henry II. in 1217--see text in Stubbs, p. 338) being then considered as of equal importance with Magna Charta itself, establis.h.i.+ng them in all points as the law of the land; but it did more. "Hitherto the king's prerogative of levying money by name of _tallage_ or _prise_, from his towns and tenants in demesne, had pa.s.sed unquestioned. Some impositions, that especially on the export of wool, affected all the king's subjects. It was now the moment to enfranchise the people and give that security to private property which Magna Charta had given to personal liberty." Edward's statute binds the king never to take any of these "aids, tasks, and prises" in future, save by the common a.s.sent of the realm. Hence, as Bowen remarks, the Confirmation of the Charters, or an abstract of it under the form of a supposed statute _de tallagio non concedendo_ (see Stubbs, p. 487), was more frequently cited than any other enactment by the parliamentary leaders who resisted the encroachments of Charles I.

The original of the _Confirmatio Chartarum_, which is in Norman French, is still in existence, though considerably shriveled by the fire which damaged so many of the Cottonian ma.n.u.scripts in 1731.

THE GRANT OF THE GREAT CHARTER.

An island in the Thames between Staines and Windsor had been chosen as the place of conference: the King encamped on one bank, while the barons--covered the marshy flat, still known by the name of Runnymede, on the other. Their delegates met in the island between them, but the negotiations were a mere cloak to cover John's purpose of unconditional submission. The Great Charter was discussed, agreed to, and signed in a single day. One copy of it still remains in the British Museum, injured by age and fire, but with the royal seal still hanging from the brown, shrivelled parchment. It is impossible to gaze without reverence on the earliest monument of English freedom which we can see with our own eyes and touch with our own hands, the great Charter to which from age to age patriots have looked back as the basis of English liberty. But in itself the Charter was no novelty, nor did it claim to establish any new const.i.tutional principles. The Charter of Henry the First formed the basis of the whole, and the additions to it are for the most part formal recognitions of the judicial and administrative changes introduced by Henry the Second. But the vague expressions of the older charters were now exchanged for precise and elaborate provisions. The bonds of unwritten custom which the older grants did little more than recognize had proved too weak to hold the Angevins; and the baronage now threw them aside for the restraints of written law. It is in this way that the Great Charter marks the transition from the age of traditional rights, preserved in the nation's memory and officially declared by the Primate, to the age of written legislation, of Parliaments and Statutes, which was soon to come. The Church had shown its power of self-defence in the struggle over the interdict, and the clause which recognized its rights alone retained the older and general form. But all vagueness ceases when the Charter pa.s.ses on to deal with the rights of Englishmen at large, their right to justice, to _security of person and property, to good government_. 'No freeman,' ran the memorable article that lies at the base of our whole judicial system, 'shall be seized or imprisoned, or dispossessed, or outlawed, or in any way brought to ruin; we will not go against any man nor send against him, save by legal judgment of his peers or by the law of the land.' 'To no man will we sell,' runs another, 'or deny, or delay, right or justice.' The great reforms of the past reigns were now formally recognized; judges of a.s.size were to hold their circuits four times in the year, and the Court of Common Pleas was no longer to follow the King in his wanderings over the realm, but to sit in a fixed place. But the denial of justice under John was a small danger compared with the lawless exactions both of himself and his predecessor. Richard had increased the amount of the scutage which Henry II. had introduced, and applied it to raise funds for his ransom. He had restored the Danegeld, or land tax, so often abolished, under the new name of 'carucage,' had seized the wool of the Cistercians and the plate of the churches, and rated movables as well as land. John had again raised the rate of scutage, and imposed aids, fines, and ransoms at his pleasure without counsel of the baronage. The Great Charter met this abuse by the provision on which our const.i.tutional system rests. With the exception of the three customary feudal aids which still remained to the crown, 'no scutage or aid shall be imposed in our realm save by the Common Council of the realm;' and to this Great Council it was provided that prelates and the greater barons should be summoned by special writ, and all tenants in chief through the sheriffs and bailiffs, at least forty days before. But it was less easy to provide means for the control of a King whom no man could trust, and a council of twenty-four barons was chosen from the general body of their order to enforce on John the observance of the Charter, with the right of declaring war on the King should its provisions be infringed. Finally, the Charter was published throughout the whole country, and sworn to at every hundred-mote and town-mote by order from the King.--_Green's Short History of the English People_, p. 123.

APPENDIX D.

A PART OF THE BILL OF RIGHTS.

AN ACT FOR DECLARING THE RIGHTS AND LIBERTIES OF THE SUBJECT, AND SETTLING THE SUCCESSION OF THE CROWN. 1689.

Whereas the Lords Spiritual and Temporal, and Commons, a.s.sembled at Westminster, lawfully, fully, and freely representing all the estates of the people of this realm, did upon the thirteenth day of February, in the year of our Lord one thousand six hundred eighty-eight [o.s.],[44]

present unto their Majesties, then called and known by the names and style of William and Mary, Prince and Princess of Orange, being present in their proper persons, a certain Declaration in writing, made by the said Lords and Commons, in the words following, viz.:

[Footnote 44: In New Style Feb. 23, 1689.]

Whereas the late King James II., by the a.s.sistance of divers evil counsellors, judges, and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion, and the laws and liberties of this kingdom:

1. By a.s.suming and exercising a power of dispensing with and suspending of laws, and the execution of laws, without consent of Parliament.

2. By committing and prosecuting divers worthy prelates for humbly pet.i.tioning to be excused from concurring to the said a.s.sumed power.

3. By issuing and causing to be executed a commission under the Great Seal for erecting a court, called the Court of Commissioners for Ecclesiastical Causes.

4. By levying money for and to the use of the Crown by pretence of prerogative, for other time and in other manner than the same was granted by Parliament.

5. By raising and keeping a standing army within this kingdom in time of peace, without consent of Parliament, and quartering soldiers contrary to law.

6. By causing several good subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed contrary to law.

7. By violating the freedom of election of members to serve in Parliament.

8. By prosecutions in the Court of King's Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and illegal causes.

9. And whereas of late years, partial, corrupt, and unqualified persons have been returned, and served on juries in trials, and particularly divers jurors in trials for high treason, which were not freeholders.

10. And excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.

11. And excessive fines have been imposed; and illegal and cruel punishments inflicted.

12. And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied.

All which are utterly and directly contrary to the known laws and statutes, and freedom of this realm.

And whereas the said late King James II. having abdicated the government, and the throne being thereby vacant, his Highness the Prince of Orange (whom it hath pleased Almighty G.o.d to make the glorious instrument of delivering this kingdom from popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal, and divers princ.i.p.al persons of the Commons) cause letters to be written to the Lords Spiritual and Temporal, being Protestants, and other letters to the several counties, cities, universities, boroughs, and cinque ports, for the choosing of such persons to represent them as were of right to be sent to Parliament, to meet and sit at Westminster upon the two-and-twentieth day of January, in this year one thousand six hundred eighty and eight,[45] in order to such an establishment, as that their religion, laws, and liberties might not again be in danger of being subverted; upon which letters elections have been accordingly made.

[Footnote 45: In New Style Feb. 1, 1689.]

And thereupon the said Lords Spiritual and Temporal, and Commons, pursuant to their respective letters and elections, being now a.s.sembled in a full and free representation of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and a.s.serting their ancient rights and liberties, declare:

1. That the pretended power of suspending of laws, or the execution of laws by regal authority, without consent of Parliament, is illegal.

2. That the pretended power of dispensing with laws, or the execution of laws by regal authority, as it hath been a.s.sumed and exercised of late, is illegal.

3. That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious.

4. _That levying money for or to the use of the Crown by pretence and prerogative, without grant of Parliament, for longer time or in other manner than the same is or shall be granted, is illegal._[46]

5. _That it is the right of the subjects to pet.i.tion the King, and all commitments and prosecutions for such pet.i.tioning are illegal._[47]

6. _That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law._[48]

7. _That the subjects which are Protestants may have arms for their defence suitable to their conditions, and as allowed by law._[49]

8. That election of members of Parliament ought to be free.

9. _That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament._[50]

10. _That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted._[51]

11. _That jurors ought to be duly impanelled and returned, and jurors which pa.s.s upon men in trials for high treason ought to be freeholders._[52]

[Footnote 46: Compare this clause 4 with clauses 12 and 14 of Magna Charta, and with Art. I. Section vii. clause 1 of the Const.i.tution of the United States.]

[Footnote 47: Compare clause 5 with Amendment I.]

[Footnote 48: Compare clause 6 with Amendment III.]

[Footnote 49: Compare clause 7 with Amendment II.]