Page images
PDF
EPUB
[ocr errors]

the Palladium of our Liberties. It consisted of thirty-seven
sections, written in the terse, vigorous style of the Latin
tongue. The 29th, one of the most celebrated, closely trans-
lated, reads as follows:—“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 de-
stroyed; nor will we pass upon him, nor condemn him, but
by lawful judgment of his peers, or by the law of the land.
To no man will we sell, to no man deny, to no man delay,
justice or right.” Another leading provision, the bulwark
of civic and constitutional freedom, perpetuated the right
of local self-government in towns and boroughs. It thus
enacts:–“The city of London shall have all its old liberties
and customs. Moreover, we will and grant that all other
cities, boroughs, towns and the barons of the five ports, and
all other ports, shall have all their liberties and free cus-
toms.” Many copies were made of the Great Charter, with
the object of depositing one in the cathedral of every dio-
cese in the kingdom. It is said there are four now extant,
two, including the original, in the British Museum; one in
Salisbury Cathedral, and one in Lincoln Cathedral.
The charter put in clear and unmistakable language the
rights which belonged to the people from early Saxon times.
It guaranteed the liberty and privileges of the clergy. The
barons were shielded from irregular encroachments and un-
warrantable demands for money. No man, whether free-
man or serf, was to undergo imprisonment, except by the
law of the land. It established the Court of Common Pleas
at Westminster, in order that suitors might not be put to
the inconvenience of following the King, in his progresses
throughout the kingdom. Justice was brought to the very
doors of the people by directing assizes to be held by the
Judges, at stated times, in the different counties. It granted
to foreign merchants leave to reside in England and de-
part therefrom without exaction. They were not to be sub-
jected to unjust taxation or discriminating impositions.
Montesquieu, in commenting upon the last named provision,
remarks: “That the English have made the protection of
foreign merchants one of the articles of their national
liberty. They (the English) know better than any other
people upon earth, how to value at the same time these
three great advantages, religion, liberty and commerce.”

** -

VOL. XXXIII. C.L.T.-10

[graphic]
[graphic]

Over six hundred years have passed since these sturdy barons of England crystallized, in the Great Charter, principles which have made liberty and justice the assured right of all living beneath the folds of her flag; principles, too, upon which she has based the free and enlightened system of trade with other nations, that has enabled her to wrest from all competitors the commercial primacy of the world.

The Supreme Pontiff, Innocent the Third, annulled the Charter, and John, at the head of foreign mercenaries, in waging war against the barons, laid waste his dominions. Soon, however, death stayed the hand of the abandoned tyrant. Thus passed into history one of the basest men of a profligate age and one of the most despotic rulers of a des. potic race.

Magna Charta was confirmed in Parliament by his son, Henry the Third. In the reign of Edward the First by a Statute called Confirmatio Chartarum, it was declared to be part and parcel of the common law of the land; copies were ordered to be read twice a year in every cathedral church in the kingdom; and all judgments contrary to its provisions were declared void. Sir Edward Coke is authority for the statement that there were thirty-two confirmatory statutes thereof from the first Edward to Henry the Fourth.

Hallam, in reference to the Great Charter, says: “The institutions of positive law, the far more important changes which time has wrought in the order of society during 600 years subsequent to the Great Charter, have undoubtedly lessened its direct application to our present circumstances, but it is still the keystone of English liberty. All that has since been obtained is little more than a confirmation or commentary; and if every subsequent law were to be swept away, there would still remain the bold features that distinguish a free from a despotic Monarchy.”

Stubbs in his Constitutional History of England, in referring to Magna Charta, remarks:– “The Barons maintained and secured the rights of the whole people as against themselves as well as against their master. . . . The whole Constitutional History of England is little more than a commentary on Magna Charta.”

The Fifth Amendment of the Federal Constitution of the United States, reads as follows:—“No person shall be deprived of life, liberty or property, “without due process of law; nor shall private property be taken for public use without just compensation.” John F. Dillon, L.L.D., Professor of Law, Columbia University, in his work on the Laws and Jurisprudence of England and America in referring to this Amendment, says:—“This was not new language, or language of uncertain meaning. It was taken purposely from Magna Charta. It was language not only memorable in its origin, but it had stood for more than five centuries as the classic expression and as the recognized bulwark of “the ancient and inherited rights of Englishmen’’ to be secure in their personal liberty and in their possession. It was, moreover, language which shone resplendent with the light of universal justice; and for these reasons it was selected to be put into the Fifth Amendment of the Federal Constitution, as it had already been put into the charters and constitutions of the several States.” Boutmy, in his work on the English Constitution, thus summarizes the nature of this great document: “The resistance to the King had to be political if the victory when gained was not to prove barren; it had to be of necessity, general, natural—may even democratic—if the victory was to be gained at all. This is what imparts grandeur and originality to the mighty drama, of which the first act ended with the Great Charter, and which reached its climax with the constitution of Parliament in 1265.” Goldwin Smith is not less eulogistic: “It is ” (says this great master of English) “not an Act of Parliament. It is a fundamental covenant between the Government and all the people of these realms, a covenant which was before Parliament, which is above Parliament, and with which if Parliament tampers, it may continue to reign by force, but it will no longer reign by right.”

II.
THE PETITION OF RIGHT.

The sword of Heaven is not in haste to smite, Nor yet doth linger. After the lapse of four hundred and fourteen years after Magna Charta there was granted, by Charles the First, the second great charter of English liberty, called the Petition of Right. To have a clear conception of the

[graphic][graphic]
[ocr errors]

causes that led up to its enactment, it may be necessary
to refer briefly to some of the leading characteristics of the
princes of the Tudor and Stuart dynasties.
Despotic, as were the sovereigns of the Tudor line, and
jealous, as they were, of their prerogatives, they were
yet far too sagacious to place themselves in direct antagon-
ism, much less open conflict, with their subjects. Bluff
King Hal generally carried the nation with him in his
foreign policy, while his people, apart from the religious
excitement aroused in the matter of the divorce from
Catherine, did not seem disposed to unduly interfere in
questions of domestic concern. Elizabeth often stretched
the prerogatives of the Crown to the verge of extreme ten-
sion, yet knowing well the spirit and independence of her
people, she would graciously recede at the opportune
moment, thereby enhancing her popularity. Elizabeth, too,
was English in every fibre of her being. Seldom has it
been in the power of a sovereign to stir a people to such
sublime heights of enthusiasm, as did the great Queen, in
her patriotic appeal to her soldiers, at Tilbury, when a
mighty power with its “Invincible Navy,” vauntingly so
called, threatened the utter demolition of her kingdom.
“I have,” said the lion-hearted Queen, “the body of a
weak and feeble woman, but I have the heart of a King,
and of a King of England, too. I will be your leader. I
will lay down my honor and life, in the dust, rather than
my people should pass under the yoke of the boastful

Spaniard.”

The Stuarts, on the other hand, were craven and naturally autocratic. In their veins coursed the blood of the foreigner, that of the notable House of Guise; whence the source of those doctrines, hateful to English ears, despotic rule and the Divine Right of Kings, to uphold which they were ready to accept foreign pensions and mercenary soldiers, to subvert the inalienable rights of their subjects. They, the Stuarts, did not understand the English people and apparently made no effort to do so. James was a braggart and possessed of a braggart's conceit, contemptuously disregarding the views and opinions of others. Green, the brilliant historian, draws the following graphic sketch of him: “His big head, his slobbering tongue, his quilted clothes, his rickety legs, his goggle eyes, stood out in as grotesque a contrast with all that men recalled of Henry or Elizabeth as his gabble and rodomontade, his want

[ocr errors][ocr errors][ocr errors][ocr errors][ocr errors]

of personal dignity, his coarse buffoonery, his drunkenness,
his pedantry and his cowardice. . . . His reading,
especially in theological matters, was extensive; and he
was a voluminous author on subjects which ranged from
predestinarianism to tobacco. But his shrewdness and
learning only left him in the phrase of Henry the Fourth .
of France—“the wisest fool in Christendom.”
James, early in his reign, announced the absurd doc-
trine of the Divine Rights of Kings, with the kindred off-
shoots of passive obedience and non-resistance. In ad-
dressing Parliament, in 1610, he made use of the following
blasphemous language: “The State of Monarchy is the
supremest thing upon earth, for Kings are not only God's
lieutenants upon earth, and sit upon God’s throne, but
even by God himself they are called Gods. . . . In the
Scriptures Kings are called Gods, and so their power after
a certain relation compared to the Divine Power.
It is sedition in subjects to dispute what a King may do in
the height of his power. I would wish you to be careful
that you do not meddle with the main points of govern-
ment. . . . That is my craft. It is on undutiful part
in subjects to press their King wherein they know before-
hand he will refuse them.”
To the like purpose was a speech made to the Judges, in
1616–" That which concerns the mystery of the King's power
is not lawful to be disputed; for that is to wade into the weak-
ness of princes, and to take away the mystical reverence that
belongs unto them that sit in the Throne of God. . . It
is atheism and blasphemy to dispute what God can do: Good
Christians content themselves with His will revealed in His
word; so it is presumption and high contempt, in a subject
to dispute what a King can do, or say that a King cannot do
this or that; but rest in that which is the King's revealed will
in his law.”
Flatterers and sycophants encouraged the King in this
preposterous doctrine. The clergy, too, proclaimed that the
King by divine right was above all laws.
From his extravagance and wasteful expenditure James
soon became burdened with heavy liabilities. Having from
the first antagonized parliament, it doled him supplies with
a sparing hand. To assert his absolute authority over taxa-
tion he resorted to the expedient of illegal impositions and
unjustifiable devices to supply the deficiency of his exchequer.
He raised large sums by a shameless traffic in peerages and

« PreviousContinue »