Page images
PDF
EPUB

tween king and subject look like the outcome of agreement; the law of contract threatened to swallow up all public law. Those were the golden days of 'free' (if 'formal') contract. The idea that men can fix their rights and duties by agreement is in its early days an unruly, anarchical idea. If there is to be any law at all, contract must be taught to know its place" (47). Spence also holds this view: "The Anglo-Saxon relation of lord and man was originally purely personal and founded on mutual contract, and perhaps the act of becoming the man of another or homage, then, as in aftertimes, was performed by the person simply declaring that he would be the man of the lord." "As the relation was

founded on contract, it might be accompanied, it would seem, by any conditions that were mutually agreed upon" (48). § 20. Early limitations on absolute sovereigntyMagna Charta. A few observations upon the Great Charter will bring out the relation of the people to those in whose hands were the reins of government. Of this charter Hoffman says: "Whatever obstructions the royal power found to its tyrannical exercise were opposed by its turbulent aristocracy. For this (the aristocracy) all the privileges, all the charters, all the limitations of prerogative were created; and during all these struggles the people, properly so called, were effectually out of view, because they formed no part of the political state. Even when provision was made against the tyrannical oppres

47 2 P. & M. Hist. Eng. Law (2d ed.) 232.

481 Spence, Eq. Jur. 36.

sion of the king, the very phrase shows the contemptibleness of the commons. 'Nullus liber homo,' says Magna Charta-a phrase so far from applying to the commons of England, or exhibiting any care for their rights, that it in fact concerned that class only which stood in contradistinction to the commonalty; liber homo meaning anything but those indigent and inconsiderable individuals from whom the English commons were afterwards to arise. It is true, indeed, that every subject of England at this day appropriates to himself the benign enactments of the charters and limitations of prerogative alluded to, and that Magna Charta is now a panoply to all; but we must look for the origin of this in times and causes much nearer our own day" (49).

This opinion, while not defensible to its full extent (50), contains a very salutary admonition, for the reason that a student is often misled to believe that by Magna Charta at a single stroke the people of England emerged from darkness into light, which is untrue, as at the time there were no commons (51). The people less in rank

49 Hoffman's Legal Outlines, p. 585.

50 The Magna Charta brought back in some measure the golden time of the Confessor. It appeared to the barons that they could not expect the assistance of the people if, in treating with John, they should act only for their own emolument. They were therefore careful that stipulation should be made in favor of general liberty. The people were considered as parties to transactions which most intimately concerned them. The feudal rigors were abated, and the privileges claimed by the more dignified possessors of fiefs were communicated to inferior vassals. The cities and boroughs received a confirmation of their ancient immunities and customs. Provisions were made for a proper execution of justice, and in the restraints affixed to the power of the king and the nobility the people found protection and security. 1 Sullivan's Lectures, XX.

51 Hale's Hist. Com. Law (Runnington ed.), p. 181, note.

than the barons had only such representation as allegiance to their lords gave them. It was a great limitation upon the powers of the crown, and did profess to secure, for every individual, protection of life and liberty, unless forfeited by due process of law, and, though obtained by the barons, expressly named the freemen and villeins. From that day the law of the land became a birth-right (the charter really restored the people to ancient rights), and in that sense Magna Charta was, and is, properly called the bulwark of English liberty. what of the law itself, and what of the people?

But

The government was based upon the feudal system, with its idea of fealty; that is, the allegiance of one person to the person of another, or, stated simply, one man became the man of another. Its fiefs, subinfeudations, aids, escheats, wardships, marriage dues, cumbersome feudal tenures, obliterated almost entirely socage tenures (52). There was scarce a notion of the law merchant or equity. The people were the king's liegemen. Earls, barons, freemen and villeins were all the king's, -the lords bound to the king, the so-called vassals liegemen to the lords (53), and the villeins beneath the heel of all. It is not until after the establishment of the representation of the people through their especial representatives in a House of Commons that the people are confirmed in their liberties, both in person and property, by written limitation upon the prerogatives of the king.

52 Reeves' Hist. Eng. Law, p. 225, note.

53 Reeves' Hist. Eng. Law, vol. 1, p. 469, note.

The Confirmatio cartarum. There were a great many confirmations of the great charter but the final one is generally spoken of (54). This took place by the act of the twenty-fifth year of Edward the First, and commonly called "Confirmatio cartarum," being the year 1297. This statute gave the same security to private property which had been given by Magna Charta to personal security; for while Norman kings had always renounced any right to raise a revenue by taxation, the matter did not become a constitutional limitation upon the king until

54 "The great charter was always regarded as a fundamental law; but as the English monarchs were constantly disposed to evade it, the barons and the people repeatedly claimed its confirmation from their sovereigns. No fewer than thirty-eight solemn ratifications of it are recorded; of which six were made by Henry III., three by Edward I., fifteen by Edward III., six by Richard II., six by Henry IV., one by Henry V., and one by Henry VI. The Charter received a few alterations upon its successive confirmations in the first, second and ninth years of Henry III.'s reign, the last of which is in our statute book and has never received any alteration. The most important change in the Charter, as confirmed by Henry III., was the omission of the clause which prohibited the levying of aids or escuages without the consent of Parliament. But though this clause was omitted, it continued to be observed during the reign of Henry, for we find the barons constantly refusing him the aids or subsidies which his prodigality was demanding. But he still retained the right of levying money upon towns under the name of tallage, and also claimed the right of levying upon contributions, such as upon the export of wool. But a final stop was put to all these exactions by the celebrated statute passed in the 25th year of the reign of Edward I., entitled Confirmatio Cartarum. This statute not only confirmed the Great Charter, but gave, to use the words of Hallam, "the same security to private property which Magna Charta had given to personal liberty." In it the king solemnly declared that "for no business from thenceforth we shall take such manner aids, tacks, nor prises, but by the common consent of the realm, and for the common profit thereof, saving the ancient aids and prises due and accustomed." Thus was the great principle of parliamentary taxation explicitly acknowledged eighty years after the first enactment of the Great Charter." The Students' Hume, p. 154.

[ocr errors][ocr errors]

after the Confirmatio cartarum, which expressly put that right in the hands of the Commons, or at least in the hands of Parliament (55).

§ 21. The representation of the people. The Commons, it must be recollected, is the only representative body in the English constitution (56), the King being the supreme executive, the Lords representing no one-simply acting for themselves,-and the Commons, who were formerly knights of the shire and representatives of the boroughs, represented the people of their vicinity or territory (57).

Rise of the House of Commons. The establishment of the representative principle by the admission of this representative body into the great council of the nation is not to be taken as the consummation of liberty; much less is it the establishment of the true principle upon which the science of politics is supposed to rest, viz.:

55 The first parliament in which people had representatives was in 1205. 2 Reeves' Hist. Eng. L. (Finlason 'ed.') 350 note. There is said to be earlier traces of the Commons, but the form is quite obscure. Freeman's William the Conqueror, p. 157; Argument of Cliffin in Burdett v. Abbott, 4 Taunt, 403; 1 Coke, I, 62 note. The forty-ninth year of Henry III, and the twenty-third year of Edward I, which so many writers consider as the dates of the establishment of the Commons, were of consequence nothing more than memorable epochs in their history. The first summons of knights on record is supposed to be in the twenty-ninth year of Henry III. But this, though it were true, does not prove that knights were not known until that time. The writ does not say so; nor can it be gathered from it that knights of the shire were then newly established. If there remained, indeed, an uniform series of records from the earliest times in which there was no mention of knights till the age of Henry III, there might thence arise a strong argument against their antiquity. But this is not the case; and it happens that in the fifteenth year of King John there is a writ to the sheriff to summon FOUR Knights of the county. 1 Sullivan's Lectures, XXII.

501 Wilson's Works, 389.

67 See Webster's arg. in Luther v. Borden, 7 How. 1.

« PreviousContinue »