Tenure of the King in Socage, and of another by Knight's Service. Petit Serjeanty. [Same as 37th Chapter of John's Charter.] CHAPTER XXVIII. Wager of Law shall not be without witness. CHAPTER XXIX. None shall be condemned without Trial. Justice shall not be sold or deferred.* "No freeman shall be taken, or imprisoned, or be disseised of his freehold, "or liberties, or free customs, or be outlawed or exiled, or any otherwise destroyed; "nor will we pass upon him, nor condemn him, but by lawfull judgement of his peers, "or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right." CHAPTER XXX. Merchant Strangers coming into this Realm shall be well used. CHAPTER XXXI. Tenure of a Barony coming into the King's hands by Escheat. CHAPTER XXXII. Lands shall not be Aliened to the Prejudice of the Lord's Service, [i. e. Lord of the Fee.] CHAPTER XXXIII. Patrons of Abbeys shall have the custody of them in time of Vacation. CHAPTER XXXIV. In what cases only a Woman shall have an Appeal of Death. * See 39th and 40th Chapters of John's Charter. C 18 THE GREAT CHARTER OF HENRY III. CHAPTER XXXV. At what time shall be kept a County Court, a Sheriff's Term, and a Leet. CHAPTER XXXVI. No Land shall be given in Mortmain. "It shall not be lawful from henceforth to any to give his lands to any religious house, and to take the same land again to hold of the same house. Nor shall it be "lawful to any house of religion to take the lands of any, and to lease the same to "him of whom he received it: if any from henceforth give his lands to any religious "house, and thereupon be convict, the gift shall be utterly void, and the land shall "accrue to the lord of the fee." CHAPTER XXXVII. A Subsidy in respect of this Charter and the Charter of the Forest, granted to the "Escuage from henceforth shall be taken like as it was wont to be in the time of "King Henry our grandfather; reserving to all archbishops, bishops, abbots, priors, "templars, hospitalers, earls, barons, and all persons as well spiritual as temporal, "all their free liberties and free customs, which they have had in time passed. And "all these customs and liberties aforesaid, which we have granted to be holden within "this our realm, as much as appertaineth to us and our heirs, we shall observe. "And all men of this our realm, as well spiritual as temporal, (as much as in them ❝is) shall observe the same against all persons in like wise. And for this our gift "and grant of these liberties, and of other contained in our charter of liberties of "our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, free"holders, and other our subjects, have given unto us the fifteenth part of all their "moveables. And we have granted unto them, for us and our heirs, that neither "we nor our heirs shall procure or do any thing, whereby the liberties in this ❝charter contained shall be infringed or broken. And if anything be procured by any person contrary to the premises, it shall be had of no force nor effect. These "being witnesses, Lord B. Archbishop of Canterbury, E. Bishop of London, I. Bishop "of Bath, P. of Winchester, H. of Lincoln, R. of Salisbury, W. of Rochester, W. of "Worcester, J. of Ely, H. of Hereford, R. of Chichester, W. of Exeter, Bishops : "the Abbot of St. Edmonds, the Abbot of St. Albans, the Abbot of Bello, the Abbot "of St. Augustines in Canterbury, the Abbot of Evesham, the Abbot of Westminster, "the Abbot of Bourgh St. Peter, the Abbot of Reding, the Abbot of Abindon, the "Abbot of Malmsbury, the Abbot of Winchcomb, the Abbot of Hyde, the Abbot of "Certesy, the Abbot of Sherburn, the Abbot of Cerne, the Abbot of Abbotebir, the "Abbot of Middleton, the Abbot of Seleby, the Abbot of Cirencester: H. de Burgh, "Justice, H. Earl of Chester and Lincoln, W. Earl of Salisbury, W. Earl of Warren, "G. de Clare Earl of Gloucester and Hereford, W. de Ferrars Earl of Derby, W. "de Mandeville Earl of Essex, H. de Bygod Earl of Norfolk, W. Earl of Albemarle, "H. Earl of Hereford, J. Constable of Chester, R. de Ros, R. Fitzwalter, R. de "Vyponte, W. de Bruer, R. de Muntefichet, P. Fitzherbert, W. de Aubenie, J. "Gresly, F. de Breus, J. de Monemue, J. Fitzallen, H. de Mortimer, W. de Beau"champ, W. de St. John, P. de Mauly, Brian de Lisle, Thomas de Multon, R. de "Argenteyn, G. de Nevil, W. Mauduit, J. de Balun, and others." We, ratifying and approving these gifts and grants aforesaid, confirm and make strong all the same for us and our heirs perpetually; and by the tenor of these presents do renew the same, willing and granting for us and our heirs, that this Charter, and all and singular its articles for ever shall be stedfastly, firmly, and inviolably observed. Although some articles in the same Charter contained yet hitherto peradventure have not been kept, we will and, by authority royal, command from henceforth firmly they be observed. In witness whereof we have caused 1 CONFIRMATIO CHARTARUM. 19 these our letters patent to be made. T. Edward, our Son, at Westminster, the twelfth day of October, in the twenty-fifth year of our reign. Magna Charta, in this form, has been solemnly confirmed by our kings and parliaments upwards of thirty times; but in the twenty-fifth year of Edward I. much more than a simple confirmation of it was obtained for England. As has been already mentioned, the original Charter of John forbad the levying of escuage save by consent of the Great Council of the land; and although those important provisions were not repeated in Henry's Charter, it is certain that they were respected. Henry's barons frequently refused him the subsidies which his prodigality was always demanding. Neither he nor any of his ministers seems ever to have claimed for the crown the prerogative of taxing the landholders at discretion: but the sovereign's right of levying money from his towns and cities under the name of tallages or prises, was constantly exercised during Henry III.'s reign and during the earlier portion of his son's. But, by the statute of Edward I. intituled Confirmatio Chartarum, all private property was secured from royal spoliation and placed under the safeguard of the great council of all the realm. The material portions of that statute are as follows ; CONFIRMATIO CHARTARUM. ANNO VICESIMO QUINTO EDV. I. CAP. V. And for so much as divers people of our realm are in fear that the aids and tasks which they have given to us beforetime, towards our wars and other business, of their own grant and good will (howsoever they were made), might turn to a bondage to them and their heirs because they might be at another time found in the rolls, and likewise for the prises taken throughout the realm, in our name, by our ministers; we have granted for us and our heirs that we shall not draw such aids, tasks, nor prises, into a custom for anything that hath been done heretofore, be it by roll or any other precedent that may be founden. CAP. VI. Moreover, we have granted for us and our heirs, as well to archbishops, bishops, abbots, priors, and other folk of holy church, as also to earls, barons, and to all the commonalty of the land, that for no business from thenceforth we shall take such manner of aids, tasks, nor prises, but by the common assent of all the realm, and for the common profit thereof, saving the ancient aids and prises due and accustomed. Let us now pause and consider how far the great constitutional principles above enumerated, are recognised or established in these Charters. In the first place, they clearly recognise the authority of an Hereditary Sovereign. The repeated expressions in them of the King granting for himself and his heirs, are themselves sufficient to prove this. Indeed, not only in England, but throughout Europe, during the middle ages, the existence of a "permanent Suzerain, vested with large rights *"Par commun assent de tut le roiaume." The version in our statute book omits the important word “All.” 20 THE ENGLISH MONARCHY HEREDITARY AND LIMITED. "The "of a mixed personal and proprietary character over his vassals, though "subject also to certain obligations towards them," was always presumed as indispensably necessary for the existence of political society.* rights of the chief were always conceived as constituting a Status apart, and neither conferred originally by the grant, nor revocable at "the pleasure of those over whom they were exercised. This view of "the essential nature of political authority was a point in which all the "three great elements of modern European society-the Teutonic, the "Roman,† and the Christian, all concurred, though each in a different way and with different modifications." Thus in England we find the nation constantly striving to regulate and temper, by solemn compact and laws, the power of its Royal chief, but never attempting, in early times, to dispense with the existence of a Royal chief. Even when the oppressiveness and proved perfidy of individual monarchs induced the nation to take away practical power from them, and to choose an executive board, who should rule in their name, such provisions, however necessary, were always considered and designed to be of a temporary nature. Nor even when kings were solemnly deposed, as in the cases of the second Edward and the second Richard, was kingship ever assailed. A new Sovereign was instantly placed in the room of the deposed one, in order that the nation might not be deprived for a moment of the monarchical head, that was reckoned politically indispensable. The peaceable and undisputed accession of Edward I., though he was far distant from England at the time of the death of Henry III., established not only that the crown was hereditary in the royal family, but also that it was hereditary according to the principles of descent which regulate a private inheritance. ‡ From what has been above stated, it also appears clearly that it is a limited Sovereignty which our constitution thus recognises. Although the government of our Anglo-Norman kings was, in fact, extremely arbitrary, they never were supposed either by others, or by themselves, to be absolute, irresponsible lords of the lives and properties of their subjects, like the despots of the Eastern World. But, though by common understanding the king was bound to consult his Great Council before he made new laws or exacted fresh taxes, and though the very essence of feudalism involved a reciprocity of duties between lord and vassal, the checks on royal caprice and royal oppression were always vague, and frequently ineffectual before the epoch of the Great Charter. From that time forward the limitations of the royal prerogative were unmis * See Grote's History of Greece, vol. iii., pp. 13, et seq.; the reflections on the discontinuance of Kingship in Hellas, compared with its preservation in Medieval Europe, deserve an attentive perusal. I. E., the Imperial Roman. The influence of Republican Rome, when her history and literature were familiarised to Europe by the revival of classical studies, was anything but Monarchical. The form of popular consent expressed at the Coronation was long considered necessary to complete the royal title. The heir to the throne had an inchoate right immediately on his predecessor's death, but his reign dated from his coronation. Such was the case till Edward I.'s reign, which dated from the day (four days after Henry III.'s death,) when the barons swore fealty to him in his absence, and his peace was proclaimed.-See Hallam's Notes to his Middle Ages, p. 301. ORIGIN OF PARLIAMENT. 21 takeable and undeniable, and "Sub lege Rex" became a sure constitutional maxim, though forensic sycophants in after ages were sometimes found who whispered its converse. Next, let us trace the great principle of the sovereign of England being bound to summon and consult a parliament of hereditary peers, and of elected representatives of the Commons. Among all the nations of the Gothic stock, whether of its Scandinavian or of its Teutonic branch, and in all the kingdoms founded by them out of conquered Roman provinces, councils or assemblies of some form existed, whose consent the ruling chief was bound to obtain, in order to legalise all important measures of State. Thus the AngloSaxons had their Witanegemotes, with whose sanction new laws were made, and new taxes imposed. The Prelates and the Thanes attended these assemblies; and the inferior class, the Ceorls, though not directly represented there, yet were not without protectors and advocates; inasmuch as certain of the magistrates whom the men of every borough and township regularly elected from among themselves for the purpose of local self-government, were present at the Witan for the purpose of obtaining redress for any wrong which might have been committed, and for the redress of which the ordinary tribunals were inadequate. When once present at the Witan, though ostensibly only for the purpose of remedial justice, the Ceorl magistrates must have had some influence in other matters also: inasmuch as the cheerful co-operation of the bulk of the community in carrying any particular measure into effect, never can be thought immaterial even by those who have the power of enforcing sullen obedience. The Anglo-Saxon polity was swept away by the conquering Normans; but the recollection of this virtual though indirect system of representation, must have survived among the bulk of the population; and may have greatly facilitated the adoption and insured the good working of the subsequent parliamentary representation of the Commons. Of the polity of the Normans, prior to their coming to this country, it is unhappily impossible to gain any minute knowledge, for the "Records of Normandy have perished: they were destroyed, it is said by Richelieu; and the archives of Rouen afford no information whatever which can elucidate the ancient constitution of the Duchy, anterior to the fourteenth century." ""* Thus much is, however, certain, that there was a council of the Norman barons which the Dukes were obliged on all important occasions to summon and consult. It was not likely that they by whose help William won the crown of this country, and to whom he parcelled out its lands as rewards, would consent to forego in their new abodes the political rights which they had enjoyed in their old homes across the Channel. The Anglo-Norman king summoned and consulted his great council, as he had done while merely a Norman duke. All who held land by military tenure immediately of the Crown, had a right to attend, and were expected to attend the king's court on the solemn days of council, and all these were originally styled the King's Barons. Besides these, the prelates, and the heads of * Palgrave, vol. i., p. 126. |