The Progress of the Nation page 2
So stood affairs at the death of John - he never restored the charter. At this time Louis and the barons not only held London and the south of England, but were powerfully supported in the north by the King of Scotland, and in the west by the prince of the Welsh. The king was but a boy of ten years of age, and, of course, he was made by his guardian, the Earl of Pembroke, to promise charters of anything. A civil war was now become the consequence of the rash act of the barons, and they and their adopted French king stood arrayed against the English king and the people. Pembroke, whom we believe to have been a good patriot, was disposed to make a truce, and thus to draw the barons from Louis. But the people cared for neither truce, barons, nor Frenchmen. The sailors, under the brave Hubert de Burgh, the constable of Dover, and the gallant archers of England, under William de Collingham, went hand and heart to work; and so well did they play their part that, in one single year, they had beaten the French and their baronial allies on all hands, and expelled Louis and the Frenchmen from the kingdom. From Collingham's archers Louis himself only escaped by flying on board his ships; and on his return with fresh forces from France, the sailors cut off and captured many of his ships, the bowmen drove the French out of London, and the mariners, under De Burgh, completed the business by destroying the whole French fleet at the mouth of the Thames with the exception of fifteen vessels.
King Henry III. was firmly set upon the throne, and then a charter was obtained from him, not by the barons, but by the whole people of the realm in Parliament assembled. This is the charter which Hallam, and indeed all the legal historians, declare is the law of the land, John's charter never having been established. And now was seen, by the important additions made to this charter, the source from which it had proceeded. Its benefit was extended to Ireland: a new clause was added, ordering the destruction of every castle built or rebuilt since the commencement of the wars of John and his barons. All the forests which had been enclosed since the reign of Henry II. were thrown open, and the deadly forest laws which ordered a man's eyes to be put out for stealing a deer were abolished or reduced to mildness by a separate charter, called the Charter of the Forests.
Such is the history of Magna Charta. It was not till after a very protracted and sanguinary struggle that the people of England obtained the peaceable enjoyment of it.
Thus completely was the English race developed within less than a century and a half of the Conquest, and thus had they won that great triumph which has placed this country on a basis of freedom so far beyond every other nation in Europe.
Let us now take a brief survey of the progress of
THE CONSTITUTION AND THE LAWS
since that period. In narrating the events of the different reigns, we have already mentioned many of them, and may therefore content ourselves with a brief review.
The privileges confirmed by Magna Charta to the various classes of English subjects may be divided into four sections. 1. Those to the Church. 2. Those to the barons and knights who held in capite, or directly from the king. 3. Those to cities and the trading community. 4. To all free men; for of the villeins or slaves no party whatever took the least notice.
Along with Archbishop Langton there were six other bishops who took an active part in procuring the charter, and, therefore, the Church was certain to have its interests well cared for. Henry II., by the Constitutions of Clarendon, had endeavoured to reduce the clergy to the same jurisdiction as all other British subjects, and to cut off the pernicious power of a foreign potentate over his subjects - that is, of the Pope. By these famous statutes all presentations to sees and livings were to be made by the king, or with, his consent. All clergymen guilty of civil offences were to be tried in the civil courts. Suits between a clergyman and layman were to be tried in those courts. No clergyman was to leave the kingdom without the king's permission; a measure which precluded the common practice of clergymen going to Rome, and there getting causes determined in defiance of the king. Appeals from the archbishop were to be made not to the Pope, but to the king. All prelates who held baronies were to do service like the lay barons, and all vacant sees and abbeys were to belong to the king.
Out of these famous laws arose the great struggle with Thomas & Becket and the clergy. Had Henry maintained these ordinances, the English Church would have become as independent of the papal chair as it did under Henry VIII. But the time was not come, and Henry was compelled to succumb in the contest. The provisions of the charter now repealed the Constitutions of Clarendon; the Church was declared to be free; the clergy were at liberty to go out of the realm when they pleased; they and their benefices were removed from the civil jurisdiction, and they were not to be amerced according to their ecclesiastical benefices, but their secular estates.
The conditions of the feudal tenure were determined in favour of the barons, and their rates of payment fixed. The reliefs were sums paid when a baron, on coming at age, took up his right and paid his fee to the king. These reliefs had before been arbitrary, and had been in many cases monstrous. The king was the guardian of all his minor vassals, male and female, and had the management of their estates during their minority - a very profitable prerogative, and often farmed out to greedy and unprincipled men.
By the charter no waste was to be made on the estates, and no relief was to be paid on coming at age. The female wards had been compelled to marry whoever the king pleased, or to purchase exemption at a heavy cost. This was also a monstrous condition of things. Women were compelled to marry men that they loathed; they were, in fact, sold, for the crown made great profit of these marriages. Widows as well as maids were compelled to marry, whether they would or not. In King John's reign the Countess of Warwick had been compelled to pay £1,000, equal at least to £15,000 of our money, that she might not be forced to marry till she pleased. These cases were constantly occurring. The charter put a restraint on this hideous abuse. No woman was to be married without the approbation of her relatives; no widow obliged to marry, or pay anything for her inheritance or property, nor to leave her husband's house for forty days after his death, within which time her dowry must be assigned.
Before the charter - for the conditions of the former charters had grown to be quite disregarded - the kings levied as much as they pleased for aids; that is, money to marry the king's eldest son or daughter, or ransom himself; for scutages, moneys paid in lieu of serving personally in the king's wars; and tallages, or subsidies levied at will. No man could call anything he had his own. The charter limited these exactions, and also those made by the great vassals on their tenants in turn.
Cities and towns were to enjoy all their charters and privileges. All weights and measures were to be regulated by those of London. To restrain the abuses of purveyance three clauses were introduced. The cruelties and abuses of purveyance were amongst the most crying abominations of the feudal ages. Eadmer, who lived in the reign of Rufus, describes the atrocities of this practice; and that description would have held good for ages afterwards: - "Those who attended the court plundered and destroyed the whole country through which the king-passed, without any control. Some of them were so intoxicated with malice that, when they could not consume all the provisions in the houses which they invaded, they either sold or burnt them. After having washed their horses' feet with the liquors they could not drink, they let them run out on the ground, or destroyed them in some other way. But the cruelties they committed on the masters of families, and the indecencies offered to their wives and daughters, were too shocking to be described."
These abominations the charter prohibited. No man's goods were to be taken without instant payment. His horses, carts, or wood were not to be taken at all without his consent.
No sheriff or bailiff of the crown was to hold pleas of the crown; that is, try for capital crimes, or inflict capital punishments - a great defence against arbitrary acts of officials in local posts. No freeman was to be seized or imprisoned, much less condemned and punished, except by judgment of his peers; and justice was neither to be withheld nor delayed - the last concession amounting to a writ of habeas corpus, and upon which that celebrated instrument of justice was founded.
Foreign merchants were to come and go at pleasure without molestation or fear, which they could not do before, being only allowed to remain in the country forty days, and to exhibit their goods at certain fairs. No judges were to be appointed except those learned in the law. The Court of Common Pleas was to be made stationary, and not to follow the king. The forest laws were ameliorated, and amercements, or penalties for legal offences, were limited. They were not to extend to a freeholder's freeholds, a merchant's merchandise, or a husbandman's implements of husbandry.
Such were the chief provisions of Magna Charta; and the various constitutional struggles and enactments which we shall have to notice from that time to our own were to expound and establish its principles in judicial forms.
One of the first effects of the charter was to regulate the courts of law. These, however, were by no means greatly improved till the reign of Edward I. In speaking of the transactions of his reign, we noted the great constitutional acts of that wise monarch. Though the Court of Common Pleas, in conformity with Magna Charta, had been fixed at Westminster, where it still continues, yet it was not completely severed from the Court of Exchequer till 1300, when Edward I. enacted that "No common pleas shall be henceforth holden in the Exchequer, contrary to the form of the Great Charter."
About the same time the Court of King's Bench was also separated from the Exchequer; and although those who were summoned to attend the court were commanded to appear "coram ipso rege," before the king himself, and notwithstanding this was strengthened by a special statute passed in 1300, that this court should always follow the king, yet the obvious necessities of its business soon fixed it, with some temporary exceptions, at Westminster, The separate establishment of these two courts very much reduced the business and impaired the dignity of the Court of Exchequer. The Lord Chancellor used to sit as one of the judges of the Exchequer after the separation of the two courts of Common Pleas and King's Bench; but the Court of Chancery was of much slower growth.
About the same time that these useful changes took place, justices of assize and nisi prius were appointed to go into every shire two or three times a year, for the more prompt administration of justice; and these judges were made justices of gaol-delivery at all places in their circuits.
All these improvements, however, not keeping down the host of thieves, murderers, and incendiaries, Edward I. appointed what he called justices of traile-baston, who proceeded to all parts, and exercised severe jurisdiction over such felons; and, still further to extend order and protection, he appointed justices of peace - officials of such indispensable and daily use, that we wonder how society was carried on before this era. At the same time Edward abolished the office of high justiciary, as conferring too much power on any subject. He, moreover, kept a sharp eye on the judges and justices, and punished them severely for neglect or violation of their duties. On his return from France, in 1290, so many were the complaints of the rapacity and extortion of the judges, that he summoned a Parliament expressly to call them to account, where all the judges, except two, were found guilty, and heavily fined. Sir Thomas Wayland, the chief justice, was banished, and his estates confiscated.
We have already stated, in speaking of Edward I.'s reign, that he was the first who regularly summoned the Commons to Parliament. Though this had been done in Henry III.'s reign by the Earl of Leicester - commonly called Leicester's Parliament - yet it had fallen again into protection, he appointed justices of peace - officials of such indispensable and daily use, that we wonder how society was carried on before this era. At the same time Edward abolished the office of high justiciary, as conferring too much power on any subject. He, moreover, kept a sharp eye on the judges and justices, and punished them severely for neglect or violation of their duties. On his return from France, in 1290, so many were the complaints of the rapacity and extortion of the judges, that he summoned a Parliament expressly to call them to account, where all the judges, except two, were found guilty, and heavily fined. Sir Thomas Wayland, the chief justice, was banished, and his estates confiscated.
We have already stated, in speaking of Edward I.'s reign, that he was the first who regularly summoned the Commons to Parliament. Though this had been done in Henry III.'s reign by the Earl of Leicester - commonly called Leicester's Parliament - yet it had fallen again into disuse, and it was only restored by Edward I. on the just ground that what concerned all ought to be approved by all. Yet it does not appear that the Commons at this period possessed any separate house, though they occasionally retired and consulted on their own affairs. These were, chiefly, granting money and presenting petitions of grievances.
The clergy still formed an integral part of Parliament; the prelates, abbots, and priors corresponding to the lords; the deans and archdeacons to the knights of shires, who were summoned by the bishop as the knights were by the sheriff; and the representatives of the ordinary clergy corresponded to the representatives of boroughs, and were called the spiritual Commons. The clergy granted their money separate from the laity; and from this reign date the two houses of Convocation. The judges, also, still sat in Parliament.
The laws which Edward I. passed have drawn the highest praise from our greatest legal authorities. Coke calls him the English Justinian; and Sir Matthew Hale asserts that he made the scheme, mould, and model of the common law substantially what it still remains; that before his time it was very rude; and that since, the great fundamental principles of common law, as it relates to justice between man and man, are very much what he made and left them. By his wise statutes he enforced the administration of justice, set bounds to the power of the Pope by the famous statute of provisors; to that of the clergy and the spiritual courts, being the first to pass a statute of mortmain; restrained the crown from imposing taxes without consent of Parliament; regulated and strengthened the internal police of the country; and greatly fostered trade by protecting and encouraging both foreign and English merchants. In his reign the famous mercantile society called the "Merchant Adventurers" was established to promote woollen manufactures; and foreign merchants were allowed trial by jury, the jury consisting half of foreigners: and they had a justiciary in London for their protection, evidently the origin of consuls.
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