will; saving to us and our heirs the custom of wools, trade were skins, and leather granted before by the commonalty to Parlia made subject aforesaid. In witness of which things we have ment. caused these our letters to be made patents. Witness Edward our son at London, the 10th day of October, the five and twentieth year 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 25th year of the reign of our aforesaid lord the king, and sent into England.

CONTEMPORARY EXPOSITION

BARTHOLOMEW DE COTTON (1297)

His majesty the King conceded to all who owed him service and to all holders of twenty measures of land that they should not be held to go with him into Flanders except for the performance of promises and of military service due said King.

BARTHOLOMEW DE COTTON, Historia Anglicana, translated by H. A. Clapp (1900). 327.

CRITICAL COMMENT

HALLAM (1818)

That famous statute, inadequately denominated the confirmation of the charters, because it added another pillar to our Constitution, is not less important than the great charter itself. Hitherto the King's prerogative of levying money. . . . had passed 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.

HENRY HALLAM, Middle Ages. 354.

MACAULAY (1849)

That the King could not impose taxes without the consent of parliament is admitted to have been, from time immemorial, a fundamental law of England. It was among the articles which John was compelled by the Barons to sign. Edward I. ventured to break through the rule, but able, powerful, and popular as he was, he encountered an opposition to which he found it expedient to yield. He covenanted, accordingly in express terms, for himself and for his heirs, that they would never again levy any aid without the assent and good will of the estates of the realm.

MACAULAY, History of England. I. 25.

STUBBS (1873)

The charters were confirmed by inspeximus on the 12th; the King on the 5th of November at Ghent confirmed both the charters and the new articles. These articles are the summary of the advantages gained at the termination of the struggle of eightytwo years, and in words they amount to very little more than a reinsertion of the clauses omitted from the Great Charter of John. The "Confirmatio Cartarum" is one of the most curious phenomena of our national history, whether it be regarded as the result of an occasional crisis, or as the decision, no longer to be delayed, of a struggle of principles. . . . The forces which seized that opportunity were ready, and were the result of a long series of causes and the working of principles which must sooner or later have made an opportunity for themselves. Such a crisis, if they had separately attempted to bring it about, might have changed the dynasty, or subverted the relations of church and state, crown and parliament, but accepted as it came, it brought about a result singularly in harmony with what seems from history and experience to be the natural direction of English progress.

WILLIAM STUBBS, Constitutional History of England. II. 150, 151.

TASWELL-LANGMEAD (1879)

The "Confirmatio Chartarum," which, although a statute, is drawn up in the form of a charter, was passed on the 10th of

October, 1297, in a Parliament at which Knights of the Shire attended as representatives of the Commons, as well as lay and clerical baronage.. .. The Confirmatio Chartarum was not merely a re-issue of Magna Charta and the Charter of the Forest, but the enactment of a series of new provisions intended to deprive the Crown in the future of its assumed right of arbitrary taxation. . . . The exclusive right of Parliament to impose taxation, though often infringed by the illegal exercise of prerogative, became from this time an axiom of the Constitution.

T. P. TASWELL-LANGMEAD, English Constitutional History. 216, 217.

FEILDEN (1882)

The reign of Edward I. is marked by the admission of the Commons to Parliament, and by the partial surrender on the part of the Crown of its claims to arbitrary taxation. In 1297, Humphrey Bohun, Earl of Hereford, Roger Bigod, Earl of Norfolk, and Archbishop Winchelsey, representing baronial and clerical interests, extorted from Edward the Confirmatio Chartarum.

H. ST. C. FEILDEN, Short Constitutional History of England. 18.

RUDOLF VON GNEIST (1889)

This Confirmatio Chartarum, in French and Latin text, represents, in fact, a fundamental law comparable with Magna Charta, and to the credit of the Crown in contrast with the events of 1215. . . The main point . . . was that the right constantly contended for since Magna Charta in 1215 of signifying an assent to the taxes, had after a lapse of a century been at last achieved, and this on a broad footing of the landowning classes, which in fact pay them.

RUDOLF VON GNEIST, History of the Eng. Parliament, translated by A. H. Keane. I. 159.

HANNIS TAYLOR (1889)

Not until eighty years after the issuance of the Great Charter did the nation finally win, through the Confirmatio Cartarum, a permanent constitutional guarantee that taxes should never be imposed by the unaided force of the royal authority. . . .

In the parliament of 1295 the three estates appeared in person or by representatives: the lay and spiritual baronage represented themselves, the inferior clergy and the commons, each as an estate of the realm, appeared through their chosen representatives. Two years after the national assembly was thus constituted, the long struggle of the nation for the right to tax itself was closed at the end of the "Barons' War" by the Confirmatio Cartarum, wherein Edward I. was made to promise the clergy, the barons and "all the commonalty of the land, that for no business from henceforth will we take such manner of aids, tasks, nor prizes, but by the common assent of the realm, and for the common profit thereof, saving the ancient aids and prizes due and accustomed."

HANNIS TAYLOR, Origin and Growth of the English Constitution. II. 11-13.

1429] LEGAL FORMS AND JURY TRIALS - TEXT

49

CHAPTER V

LEGAL FORMS AND JURY TRIALS (1429)

SUGGESTIONS

THE Statute 8 Henry VI. 12 is chosen as the type of the many statutes enacted in the Lancastrian Period. Referred to by Sir John Fortescue (whose interpretation of the English laws of the fifteenth century forms a running commentary upon the government of his day) this statute seems particularly worthy of place amongst our documents. This is the earliest mention, in a statute, of the system of trial by jury-"Inquest to be taken of lawful men."

The system of judicature is too technical and too far-reaching to be developed as a correlation of constitutional government, but it is well to give a cursory glance at Curia Regis, the Laws of Henry II., and the growth of Trial by Jury, that the principle of "liberty of the subject" may here be shown to have a legal as well as a moral support in the history of Anglo-Saxon government.

Throughout the earlier study, suggested by the topics in the Appendix, the development of the court and trial by jury are constantly referred to as a basis for research.

For Outlines and Material, see Appendix A.

DOCUMENT

Statutes: 8 Henry VI. Cap. 12 (1429)

No Judgment or Record shall be reversed for any The Statutes Writ, Process, &c., rased. What Defects in Records at Large, i., may be amended by the Judges, and what not.

550, 551.

Item, our Lord the King had ordained and established by the authority of this present parliament, That for error assigned, or to be assigned, in any record, process, or warrant of attorney, original Assured digwrit or judicial, panel or return, in any places of nity of a warthe same rased or interlined, or in any addition,

rant or writ.