32 GREAT CHARTER A FUNDAMENTAL CONSTITUTIONAL LAW.

by the terrors of excommunication from breaking the great compact between the crown and the people. The most earnest efforts were also employed to make the Great Charter familiarly known throughout the land by all, as the common birthright of all, and the most stringent measures of law were devised to insure the prompt punishment of any who should dare to violate it. To quote an instance or two of this: by the Confirmatio Chartarum, 25 Ed. I. (part of which has already been cited), it was ordained that

"The Charters of Liberties and of the Forest should be kept in every parish; and "that they should be sent under the king's seal as well to the justices of the Forest "as to others, to all sheriffs and other officers, and to all the cities in the realm, "accompanied by a writ commanding them to publish the said Charters, and declare "to the people that the king had confirmed them in all points. All justices, sheriffs, 66 mayors, and other ministers were directed to allow them when pleaded before "them; and any judgment contrary thereto was to be null and void. The Charters "were to be sent under the king's seal to all cathedral churches throughout the "realm, there to remain, and to be read to the people twice a-year. It was ordained "that all archbishops and bishops should pronounce sentence of excommunication "against those who, by word, deed, or counsel, did contrary to the aforesaid "Charters."

By the "Articuli super Cartas," a statute passed in the 28th Ed. I., the Charters are ordered to be read by the sheriffs four times a year, before the people of the shire in open County Court. And the statute further ordains, that for the punishing of offenders against the Charters,

"There shall be chosen, in every shire court, by the commonalty of the same "shire, three substantial men, knights, or other lawful, wise, and well disposed 66 persons, which should be justices sworn and assigned by the king's letters patent "under the great seal, to hear and determine without any other writ, but only their "commission, such plaints as shall be made upon all those that commit or offend "against any point contained in the aforesaid Charters, in the shires where they be "assigned, as well within franchises as without, and as well for the king's officers "out of their places as for others; and to hear the plaints from day to day without 66 any delay, and to determine them, without allowing the delays which be allowed "by the common law. And the same knights shall have power to punish all such "as shall be attainted of any trespass done contrary to any point of the aforesaid "Charters where no remedy was before by the common law, as before is said, by "imprisonment, or by ransom, or by amerciament, according to the trespass."

A volume, precious to Englishmen for the merits both of its subject and of its authors, might easily be collected from the panegyrists of Magna Charta. I have already quoted Lord Chatham, and I will cite here the words of only one statesman more, whom I select on account of his eminence as an historian, and as a philosophical and political inquirer. His eloquent observations are also the more valuable for citation here, because they forcibly point out the existence in our constitution of that law of progress and development, the operation of which it is one of the principal objects of these pages to illustrate. Sir James Mackintosh says of Magna Charta

"It was a peculiar advantage that the consequences of its principles "were, if we may so speak, only discovered gradually and slowly. It gave out on each occasion only as much of the spirit of liberty and

cr

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MACKINTOSH'S EULOGIUM ON THE GREAT CHARTER. 33

"reformation as the circumstances of succeeding generations required, "and as their character would safely bear. For almost five centuries "it was appealed to as the decisive authority on behalf of the people, though commonly so far only as the necessities of each case demanded. "Its effect in these contests was not altogether unlike the grand process by which nature employs snows and frosts to cover her delicate germs, and to hinder them from rising above the earth till the atmo"sphere has acquired the mild and equal temperature which insures "them against blights. On the English nation, undoubtedly, the "Charter has contributed to bestow the union of establishment with "improvement. To all mankind it set the first example of the pro"gress of a great people for centuries, in blending their tumultuary democracy and haughty nobility with a fluctuating and vaguely limited monarchy, so as at length to form from these discordant materials the only form of free government which experience had shown to be re"concilable with widely extended dominions. Whoever in any future age or yet unborn nation may admire the felicity of the expedient "which converted the power of taxation into the shield of liberty, by "which discretionary and secret imprisonment was rendered imprac"ticable, and portions of the people were trained to exercise a larger "share of judicial power than ever was allotted to them in any other "civilised state, in such a manner as to secure, instead of endangering, public tranquillity; whoever exults at the spectacle of enlightened "and independent assemblies, which, under the eye of a well informed nation, discuss and determine the laws and policy likely to make com"munities great and happy; whoever is capable of comprehending all "the effects of such institutions with all their possible improvements "upon the mind and genius of a people,-is sacredly bound to speak "with reverential gratitude of the authors of the GREAT CHARter. "To have produced it, to have preserved it, to have matured it, con"stitute the immortal claim of England upon the esteem of mankind. "Her BACONS and SHAKESPEARES, her MILTONS and NEWTONS, with "all the truth which they have revealed, and all the generous virtue "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 with" out the influence of that spirit which the GREAT CHARTER breathed over their forefathers."

It has been shown in the preceding pages that the thirteenth century saw the commencement of our nationality, and that during it the great foundations of our constitution were laid. But it would be ignorant rashness to assert that the organisation of our institutions was complete even at the time of the death of Edward I. What was said of the Roman Constitution by two of its greatest statesmen, and written by another, may with equal truth be averred of the English,—that no one man and no one age sufficed for its full production. But its kindly

*

*❝ Tum Lælius, nunc fit illud Catonis certius, nec temporis unius, nec hominis esse constitutionem reipublicæ."-Cicero De Republicá, lib. ii. 21.

D

THE CONSTITUTION UNDER THE PLANTAGENETS.

34 growth went rapidly on during the reigns of the later Plantagenets; and the historian of the last centuries of the middle ages, traces with pride and pleasure the increase and systemisation of the power of the House of Commons in asserting and maintaining the exclusive right of taxation; in making the grant of supplies dependent on the redress of grievances; in directing and checking the public expenditure; in establishing the necessity of the concurrence of both Houses of Parliament in all legislation; in securing the people against illegal ordinances and interpolations of the statutes; in inquiring into abuses; in controlling the royal administration; in impeaching and bringing to punishment bad ministers; and in defining and upholding their own immunities and privileges.

Hallam has admirably sketched the principal circumstances in the polity of England at the accession of the House of Tudor to the crown.

"The essential checks upon the royal authority were five in number:-1. The "king could levy no sort of new tax upon his people, except by the grant of his "parliament, consisting as well of bishops and mitred abbots, or lords spiritual, and "of hereditary peers or temporal lords, who sat and voted promiscuously in the same "chamber, as of representatives from the freeholders of each county, and from the "burgesses of many towns and less considerable places, forming the lower or com"mons' house. 2. The previous assent and authority of the same assembly was "necessary for every new law, whether of a general or temporal nature. 3. No ❝man could be committed to prison but by a legal warrant specifying his offence; "and by an usage nearly tantamount to constitutional right, he must be speedily "brought to trial by means of regular sessions of gaol-delivery. 4. The fact of "guilt or innocence on a criminal charge was determined in a public court, and in "the county where the offence was alleged to have occurred, by a jury of twelve men, "from whose unanimous verdict no appeal could be made. Civil rights, so far as "they depended on questions of fact, were subject to the same decision. 5. The "officers and servants of the Crown, violating the personal liberty or other right of "the subject, might be sued in an action for damages, to be assessed by a jury, or, "in some cases, were liable to criminal process; nor could they plead any warrant or command in their justification, not even the direct order of the king. "The peers alone, a small body varying from about fifty to eighty persons, enjoyed "the privileges of aristocracy; which, except that of sitting in parliament, were not very considerable, far less oppressive. All below them, even their children, were "commoners, and in the eye of the law equal to each other. In the gradation of "ranks, which, if not legally recognised, must still subsist through the necessary " inequalities of birth and wealth, we find the gentry or principal landholders, many "of them distinguished by knighthood, and all by bearing coat armour, but without any exclusive privilege; the yeomanry, or small freeholders and farmers, a very 66 numerous and respectable body, some occupying their own estates, some those of "landlords; the burgesses and inferior inhabitants of trading towns; and, lastly, "the peasantry and labourers. Of these, in earlier times, a considerable part, though "not perhaps so very large a proportion as is usually taken for granted, had been in "the ignominious state of villeinage, incapable of possessing property but at the will "of their lords. They had however gradually been raised above this servitude; many "had acquired a stable possession of lands under the name of copyholders; and the "condition of mere villeinage was become rare."

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The gradual progress of the free principles of our constitution is no longer to be traced under the Tudors, with the same regularity which is observable under the Plantagenets, from John's reign downwards. There seems at first sight to be a reaction towards despotism; but this appearance of degeneracy is only on the surface. Slavish things were said and done in high places, and there was a dearth of measures of

STATE OF ENGLAND UNDER THE TUDORS.

35

improvement, not because the nation had grown false-hearted to itself, or feeble-hearted; but because the race of its former leaders in struggles for liberty now no longer supplied it with chieftains, and the orders of society whence the new reformers were to spring, had not yet acquired full importance and self-reliance. The dreadful civil wars of York and Lancaster had hewn the Barons of England down to a scanty and scared remnant; which the subtle policy of Henry VII. and the resolute ferocity of Henry VIII. had tended more and more to weaken. But deep thought and bold inquiry were active throughout the nation, under the mighty impulses given to the mind by the general diffusion of the art of printing, by the revival of the study of the classics, by the exciting interest of the great geographical discoveries effected about this period, and, above all, by the Reformation. Our Parliaments were, indeed, disgracefully submissive under the two last Henrys. Such was the shameful facility with which verdicts of guilty were then obtained from juries in state prosecutions, principally through the iniquitous system of fining and imprisoning any juror who dared to return a verdict against the wish of the Crown;-the judges, in their application and exposition of the criminal law, were such servile tools of the Sovereign; and human life was lavished on the scaffold with such savage prodigality, that we cannot be surprised that while the peerage ceased to furnish hereditary tribunes of the people, men of inferior position shrank at first from coming forward as state martyrs :

"Nec civis erat qui libera posset

"Verba animi proferre et vitam impendere vero."

Thus it was that the Court of Star-Chamber (as the old court of the king's Concilium Ordinarium was now called) exercised an extensive and anomalous jurisdiction, by means of which men were arbitrarily fined or imprisoned, and often sentenced to cruel mutilations, for any alleged misconduct, which the lords and prelates of the Council or any minister of the Crown might think fit to impute to them. Thus, too, the subject's money was frequently extorted without Parliamentary assent, under the name of benevolences or loans. These things and other violences were endured to an extent which, under the Plantagenets, would have met with firm remonstrance, if not with armed resistance. But the independent power of the gentry and of the wealthier portions of the middle classes was steadily, though silently, increasing; and under the last three Tudors we find the House of Commons gradually resuming the firm free tone and bearing, and the resolution to maintain and work out the rights of the people, which the great Barons formerly displayed at Runnymede and Lewes. Under Elizabeth the popular party in the House of Commons was organised and active; and more than once successful in its efforts at state reform. Much, indeed, in her reign was endured for her sake, and not for want of a knowledge of its unconstitutional character, or of spirit to resist it. Many a haughty speech and many a harsh act of Elizabeth's was forgiven and forgotten by those who thought of the true English heart and daring of the Queen, whom they had seen cheering her troops at Tilbury; who had defied the spiritual thunders of the Vatican, and the

36

CONSTITUTIONAL OPPOSITION TO THE STUARTS.

more perilous thunders of the Armada; who had sent out Drake, Raleigh, Cavendish, Hawkins, and Frobisher, to beard England's foes and spread England's fame beyond the southern and western waves. But when the imbecile though insolent Stuarts came to our throne, and made our national honour a by-word abroad, while at home they paraded each most offensive claim to arbitrary power in the most offensive manner, no such patriotic forbearance could be expected. Fortunate for England, indeed, it was that two such weak and worthless princes as the first James and Charles reigned next after Elizabeth; that we had not a succession of active and prosperous sovereigns, under whom overgrown prerogative might have been allowed to take too deep root, while the national liberties perished amidst the blaze of the national glory.

The first two Parliaments of Charles I. had been hastily dismissed by him in petulant discontent, because they adhered to the old constitutional plan of making the grant of supplies depend upon the redress of grievances. Those grievances were actively continued by the Crown and its ministers; some of them being the arbitrary billeting of soldiers, the forcing of loans to the King, under the title of benevolences, the imprisoning those who refused to lend, several of whom, on suing out their writ of Habeas Corpus, were, in defiance of it, remanded to prison.

His

Still, with whatever rigour unparliamentary methods of getting money were resorted to, Charles found, as the early Anglo-Norman kings had found, that no tyranny could extort so much from the nation, as could be gained from it, if its consent to the levy was first obtained. third Parliament was therefore summoned, which met in March 1628, and continued with one prorogation till March 1629. Wentworth (who had not yet apostatized), Selden, Pym, Holles, Coke, Eliot, and Hampden were of this Parliament, and other men of energy and ability, intent on vindicating our ancient vital liberties, by reinforcing our ancient laws "made by our ancestors; by setting forth such a character of them "as no licentious spirit should dare to enter upon them."* Charles endeavoured to soothe them with vague promises; but Sir Edward Coke warned them that general words were no sufficient satisfaction for particular grievances. "Did ever Parliament rely on messages. The King "must speak by a record, and in particulars, and not in generals. Let us put up a Petition of Right; not that I distrust the King, but "that we cannot take his trust save in a Parliamentary way."

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The Petition of Right was accordingly drawn up by the Commons. The Lords proposed in a conference to add the following clause :-" We "humbly present this petition to your Majesty, not only with a care of preserving our own liberties, but with due regard to leave entire that sovereign power with which your Majesty is entrusted for the pro"tection, safety, and happiness of your people." The leaders of the Commons saw clearly the dangerous effect of this insidious stipulation in favour of the royal prerogative, and peremptorily refused to concur in the amendment. After considerable discussion the Peers gave way, and the bill having passed both houses as the bill, the whole bill, and

* Speech of Wentworth.