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stances occurred, aids were levied by the crown upon its tenants, at the rate of a mark or a pound for every knight's fee. These aids, being strictly due, in the prescribed cases, were taken without requiring the consent of parliament. Escuage, which was a commutation for the personal service of military tenants in war, having rather the appearance of an indulgence than an imposition, might reasonably be levid by the king. It was not till the charter of John that escuage became a parliamentary assessment; the custom of commuting service having then grown general, and the rate of commutation being variable.
None but military tenants could be liable for escuage ; but the inferior subjects of the crown were oppressed by tallages. The demesne lands of the king and all royal towns were liable to tallage ; an imposition far more rigorous and irregular than those which fell upon the gentry. Tallages were continually raised upon different towns during all the Norman reigns, without the consent of parliament, which neither represented them nor cared for their interests. The itinerant justices in their circuits usually set this tax. Sometimes the tallage was assessed in gross upon a town, and collected hy the burgesses ; sometimes individually at the judgment of the justices. There was an appeal from an excessive assessment to the barons of the Exchequer. Inferior lords might tallage their own tenants and demesne towns, though not, it seems, without the king's permission. Customs upon the import and export of merchandize, of which the presage of wine, that is, a right of taking two casks out of each vessel, seems the most material, were immemorially exacted by the 'crown. There is no appearance that these originated with parliament. Another tax, extending to all the lands of the kingdom, was Danegeld, the ship-money of those times. This name had been originally given to the tax imposed under Ethelred II., in order to raise a tribute exacted by the Danes. It was afterwards applied to a permanent contribution for the public defence against the same enemies. But after the conquest this tax is said to have been only occasionally
required ; and the latest instance on record of its payment is in the twentieth of Henry II. Its imposition appears to have been at the king's discretion.
The right of general legislation was undoubtedly placed in the king, conjointly with his great council, or, if the expression be thought more proper, with their advice. So little opposition was found in these assemblies by the early Norman kings, that they gratified their own love of pomp, as well as the pride of their barons, by consulting them in every important business. But the limits of legislative power were extremely indefinite. New laws, like new taxes, affecting the community, required the sanction of that assembly which was supposed to represent it; but there was no security for individuals against acts of prerogative, which we should justly consider as most tyrannical. Henry II., the best of these monarchs, banished from England the relations and friends of Becket, to the number of four hundred. At another time, he sent over from Normandy an injunction, that all the kindred of those who obeyed a papal interdict should be banished, and their estates confiscated.
The statutes of these reigns do not exhibit to us many provisions calculated to maintain public liberty on a broad and general foundation. And although the laws then enacted have not all been preserved, yet it is unlikely that any of an extensively remedial nature should have left no trace of their existence. We find, however what has sometimes been called the Magna Charta of William the Conqueror, preserved in Roger de Hoveden's collection of his laws. We will, enjoin, and grant, says the king, that all freemen of our kingdom shall enjoy their lands in peace, free from all tallage, and from every unjust exaction, so that nothing but their service lawfully due to us shall be demanded at their hands. The laws of the Con
queror, found in Hoveden, are wholly different from those in Ingulfus, and are suspected not to have escaped considerable interpolation. It is remarkable, that no reference is made to this concession of William the Conqueror in any subsequent charter. However it seems to comprehend only the feudal tenants of the crown. Nor does the charter of Henry I., though so much celebrated, contain any thing specially expressed but a remission of unreasonable reliefs, wardships, and other feudal burdens. It proceeds however to declare that he gives his subjects the laws of Edward the Confessor, with the emendations made by his father with consent of his barons. The charter of Stephen not only confirms that of his predecessor, but adds, in fuller terms than Henry had used, an express concession of the laws and customs of Edward. Henry II. is silent about these, although he repeats the confirmation of his grandfather's charter. The people however had begun to look back to a more ancient standard of law. The Norman conquest, and all that ensued upon it, had endeared the memory of their Saxon government. Its disorders were forgotten, or rather, were less odious to a rude nation, than the coercive justice by which they were afterwards restrained. Hence it became the favourite cry to demand the laws of Edward the Confessor ; and the Normans themselves, as they grew dissatisfied with the royal administration, fell into these English sentiments. But what these laws were, or more properly perhaps, these customs subsisting in the Confessor's age, was not very distinctly understood. So far, however, was clear, that the rigorous feudal servitudes, the weighty tributes upon poorer freemen, had never prevailed before the conquest. In claiming the laws of Edward the Confessor, our ancestors meant but the redress of grievances which tradition told them had not always existed.
It is highly probable, independently of the evidence supplied by tne charters of Henry I. and his two successors, that a sense of oppression had long been stimulating the subjects of so arbitrary a government, before they gave any demonstrations of it sufficiently palpable to find a place in history. But there are certainly no instances of rebellion, or even, as far as we know, of a constitutional resistance in parliament, down to the reign of Richard I. The revolt of the earls of Leicester and Norfolk against Henry II. which endangered his throne and comprehended his children with a large part of his barons, appears not to have been founded even upon the pretext of public grievances. Under Richard I., something more of a national spirit began to show itself. For the king having left his chancellor William Longchamp joint regent and justiciary with the bishop of Durham during his crusade, the foolish insolence of the former, who excluded his co-adjutor from any share in the administration, provoked every one of the nobility. A convention of these, the king's brother placing himself at their head, passed a sentence of removal and banishment upon the chancellor. Though there might be reason to conceive that this would not be unpleasing to the king, who was already apprised how much Longchamp had abused his trust, it was a remarkable assumption of power by that assembly, and the earliest authority for a leading principle of our constitution, the responsibility of ministers to parliament.
HALLAM. In the succeeding reign of John, all the rapacious exactions usual to these Norman kings were not only redoubled, but mingled with other outrages of tyranny still more intolerable. These too were to be endured at the hands of a prince utterly contemptible for his folly and cowardice. One is surprised at the forbearance displayed by the barons, till they took arms at length in that confederacy, which ended iņ establishing the Great Charter of Liberties. As this was the first effort towards a legal government, so is it beyond comparison the most important event in our history, except that revolution without which its benefits would rapidly have been annihilated. The constitution of England has indeed no single date from which its duration is to be reckoned. The institutions of positive law, the far more important changes which time has wrought in the order of society, during six hundred years subsequent to the Great Charter, have undoubtedly lessened its direct application to our present circumstances. But it is still the key-stone of English liberty. All that has since been obtained is little more than as 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. It has been lately the fashion to depreciate the value of Magna Charta, as if it had sprung from the private ambition of a few selfish barons, and redressed only some feudal abuses. It is indeed of little importance by what motives those who obtained it were guided. The real characters of men most distinguished in the transactions of that time are not easily determined at present. Yet if we bring these ungrateful suspicions to the test, they prove destitute of all reasonable foundation. An equal distribution of civil rights to all classes of freemen forms the peculiar beauty of the charter. In this just solicitude for the people, and in the moderation which infringed upon no essential prerogative of the monarchy, we may perceive a liberality and patriotism very unlike the selfishness which is sometimes rashly imputed to those ancient barons. And, as far as we are guided by historical testimony, two great men, the pillars of our church and state, may be considered as entitled beyond all the rest to the glory of this monument; Stephen Langton, archbishop of Canterbury, and William, earl of Pembroke. To their temperate zeal for a legal government, England was indebted during that critical period for the two greatest blessings that patriotic statesmen could confer; the establishment of civil liberty upon an immoveable basis, and the preservation of national independence under the ancient line of sovereigns, which rasher men were about to exchange for the dominion of France.
By the Magna Charta of John, reliefs were limited to a certain sum, according to the rank of the tenant, the waste committed by guardians in chivalry restrained, the disparagement in matrimony of female wards forbidden, and widows secured from compulsory marriage. These regulations, extending to the sub-vassals of the crown, redressed the worst grievances of every military tenant in England. The franchises of the city of London and of all towns and horoughs were declared inviolable. The freedom of commerce was guaranteed to alien merchants. The Court of Common Pleas, instead of following the king's person, was fixed at Westminster. The tyranny exercised in the neighbourhood of royal forests met with some check, which was further enforced by the charter of forests under Henry III.
But the essential clauses of Magna Charta are those which protect the personal liberty and property of all freemen, by giving security from arbitrary imprisonment and arbitrary spoliation. “No freeman," (says the twenty-ninth chapter of Henry III.'s charter, which, as the existing law, I quote in preference to that of John, the
variations not being very material) “shall be taken or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor send upon him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny, or delay to any man judgment or right." It is obvious, that these words, interpreted by any honest court of law, convey an ample security for the two main rights of civil society. From the æra, therefore, of king John's charter, it must have been a clear principle of our constitution, that no man can be detained in prison without trial. Whether courts of justice framed the writ of Habeas Corpus in conformity to the spirit of this clause, or found it already in their register, it became from that æra the right of every subject to demand it. That writ, rendered more actively remedial by the statute of Charles II., but founded upon the broad basis of Magna Charta, is the principal bulwark of English liberty ; and if ever temporary circumstances, or the doubtful plea of political necessity, shall lead men to look on its denial with apathy, the most distinguishing characteristic of our constitution will be effaced.
As the clause recited above protects the subject from any absolute spoliation of his freehold rights, so others restrain the excessive amercements which had an almost equally ruinous operation. The magnitude of his offence, by the fourteenth clause of Henry III.'s charter, must be the measure of his fine ; and in every case the contenement (a word expressive of chattels necessary to each man's station, as the arms of a gentleman, the merchandize of a trader, the plough and waggons of a peasant) was exempted from seizure. A provision was made in the charter of John, that no aid or escuage should be imposed, except in the three feudal cases of aid, without consent of parliament. And this was extended to aids paid by the city of London. But the clause was omitted in the three charters granted by Henry III., though parliament seems to have acted upon it in most part of his reign. It had however no reference to tallages imposed upon towns without their consent. Fourscore years were yet to elapse before the great principle of parliamentary taxation was explicitly and absolutely recognised.
A law which enacts that justice shall neither be sold, denied, nor delayed, stamps with infamy that government under which it had become necessary. But from the time of the charter, according to Madox, the disgraceful perversions of right, which are upon record in the rolls of the exchequer, became less frequent.
From this æra a new soul was infused into the people of England. Her liberties, at the best long in abeyance, became a tangible possession, and those indefinite aspirations for the laws of Edward the Confessor were changed into a steady regard for the Great Charter. Pass but from the history of Roger de Hoveden to that of Mathew Paris, from the second Henry to the third, and judge whether the victorious struggle had not excited an energy of public spirit to which the nation was before a stranger. The strong man, in the sublime language of Milton, was aroused from sleep, and shook his invincible locks. Tyranny indeed, and injustice will by all historians, not absolutely servile, be noted with moral reprobation ; but never shall we find in the English writers of the twelfth century that assertion of positive and national rights which distinguishes those of the next age, and particularly the monk of St. Albans. From his prolix history we may collect three material propositions as to the state of the English constitution during the long reign of Henry III. ; a prince to whom the epithet of worthless seems best applicable ; and who, without committing any flagrant crimes, was at once insincere, ill-judging, and pusillanimous. The intervention of such a reign was a very fortunate circumstance for public liberty ; which might possibly have been crushed in its infancy, if an Edward had immediately succeeded to the throne of John,
1.--The Great Charter was always considered as a fundamental law. But yet it was supposed to acquire additional security by frequent confirmation. This it received, with some not inconsiderable variation, in the first, second, and ninth years of Henry's reign. The last of these is our present statute-book, and has never received any alterations ; but Sir E. Coke reckons thirty-two instances wherein it has been solemnly ratified. Several of these were during the reign of Henry III., and were invariably purchased by the grant of a subsidy. This prudent accommodation of parliament to the circumstances of their age not only made the law itself appear more inviolable, but established that correspondence between supply and redress, which for some centuries was the balance-spring of our constitution, The charter indeed was often grossly violated by their administration. Even Hubert de Burgh, of whom history speaks more favourably than of Henry's later favourites, though a faithful servant of the crown, seems, as is too often the case with such men, to have thought the king's honour and interest concerned in maintaining an unlimited prerogative. The government was however much worse administered after his fall. From the great difficulty of compelling the king to observe the boundaries of law, the English clergy, to whom we are much indebted for their zeal in behalf of liberty during this reign, devised means of binding his conscience, and terrifying his imagination by religious sanctions. The solemn excommunication, accompanied with the most awful threats, pronounced against the violaters of Magna Charta, is well known from our common histories. The king was a party to this ceremony, and sworn to observe the charter. But Henry III., though a very devout person, had his own notions as to the validity of an oath that affected his power, and indeed passed his life in a series of perjuries. According to the creed of that age, a papal dispensation might annul any prior engagement; and he was generally on sufficiently good terms with Rome to obtain such an indulgence.
2.- Though the prohibition of levying aids or escuages without consent of parliament had been omitted in all Henry's charters, an omission for which we cannot assign any other motive than the disposition of his ministers to get rid of that restriction, yet neither one nor the other seem in fact to have been exacted at discretion throughout his reign. On the contrary, the barons frequently refused the aids, or rather subsidies, which his prodigality was always demanding. Indeed it would probably have been impossible for the king, however frugal, stripped as he was of so many lucrative though oppressive prerogatives by the Great Charter, to support the expenditure of government from his own resources. Tallages on his demesnes, and especially on the rich and ill-affected city of London, he imposed without scruple ; but it does not appear that he ever pretended to a right of general taxation. We may therefore take it for granted, that the clause in John's charter, though not expressly renewed, was still considered as of binding force. The king was often put to great inconvenience by the refusal of supply; and at one time was reduced to sell his plate and jewels, which the citizens of London buying, he was provoked to exclaim with envious spite against their riches, which he had not been able to exhaust.
3.—The power of granting money must of course imply the power of withholding it; yet this has sometimes been little more than a nominal privilege. But in this reign the English parliament exercised their right of refusal, or, what was much better, of conditional assent. Great discontent was expressed at the demand of a subsidy in 1237; and the king alleging that he had expended a great deal of money on his sister's marriage with the emperor, and also upon his own, the barons answered, that he had not taken their advice in those affairs; nor ought they to share the punishment of acts of imprudence they had not committed. In 1241, a subsidy having been demanded for the war in Poitou, the barons drew up a