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REESE LIBRARY 
 
 UNIVERSITY OF CALIFORNIA. 
 

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 THK TEXT- BO OK 
 
 H K C ONSTITUTI ( ) N 
 
 MAGNA CHART A, THE PETITION OF RIGHT, 
 AND THE BILL OF RIGHTS. 
 
 TH HI, .iORICAL COMMENTS, AND REMARK- 
 POLITICAL EMERGENCIES. 
 
 BY E. S. Oil EASY, M.A.. 
 
 LATE PKI.LOW OF KING uMBRlDfl! 
 
 C la, the IVuuon -f Right, ,-md the Bill of Flights form thi n I call 
 
 : - ,ii Oonstitnti. AM. 
 
 LONDON . 
 
 It BENTLKY, RURLIN^TOX STRE] 
 tn OrHtnari? to 
 
 i 
 
 
University of California. 
 
 f-'KOM TH'.: l.IHUARY OK 
 
 DR. FRANCIS L1EBER, 
 
 rrufr-sor of History and L;uv in Columbia College, New York. 
 
 Till-: G'KT OK 
 
 MICHAEL REESE, 
 
 -'<tn JFraiu'isi'o. 
 
 \ .-* r : i . 
 
THE TEXT-BOOK 
 
 THE CONSTITUTION. 
 
 UNIVERSITY 
 v 
 
THE TEXT-BOOK 
 
 THE CONSTITUTION 
 
 MAGNA CHARTA, THE PETITION OF RIGHTS, 
 AND THE BILL OF RIGHTS. 
 
 WITH HISTORICAL COMMENTS, AND REMARKS ON THE PRESENT 
 POLITICAL EMERGENCIES. 
 
 BY E. S. CREASY, M. A., 
 
 USTBR-ATLAW; FROFBS8OR OF BISTORT IK UNIVKRB1TY COLLEGE, LOU DO* 
 LATB FBLLOW OF KING'S COLLEGE, CAMBRIDGE. 
 
 " Magna Charta, the Petition of Rights, and the BUI of Rights form the code, which I call 
 the Bible of the English Constitution." LOBD CHATHAM. 
 
 (XJNIVERS 
 
 LONDON: 
 
 RICHARD BENTLEY, BURLINGTON STREET, 
 in Orttittarg to few 
 
 1848. 
 : Price Jfalf-a-Crown.] 
 
NIT: 
 
 THE 
 
 TEXT-BOOK OF THE CONSTITUTION. 
 
 WHATEVER may be thought of the execution of this work, I have 
 little fear of the chief portion of it being censured, so far as regards the 
 design. An attempt to arrange in a simple form, and to place before 
 the public, in a few easily accessible pages, the great principles of our 
 Constitution, to prove their antiquity, to illustrate their development, 
 and to point out their enduring value, will surely, in times like the 
 present, not be discouraged as blameable ; and, in the strange dearth of 
 really useful treatises on this all-important topic, it will hardly be 
 slighted as superfluous. 
 
 I am aware that I assume a more questionable and difficult function 
 in proceeding to consider what political measures should now be taken, 
 in order that our Constitution may extend its benefits more amply, and 
 more securely for the future. But this branch of the subject is 
 intimately connected with the other ; for, the same earnest and long- 
 continued studies which teach the historical inquirer to believe in and 
 venerate the great principles of the English Constitution, also display 
 to him the workings of its normal law of progress, its plastic power of 
 self-amelioration and expansion, through which alone we may hope to 
 see the exigencies of the present and of the coming time supplied, not 
 only without danger, but with additional security to the fundamental 
 institutions of ages past. 
 
 It is in the first place necessary to have a clear idea of what we mean 
 by the word "Constitutional." For, there are few terms in our 
 language more laxly employed than this word and its converse in party 
 political discussion. And so very vague are the ideas which many 
 entertain of the English Constitution, that when the opponent of a 
 particular measure or a particular system of policy cries out that it is 
 unconstitutional, it generally means little more than that the matter so 
 denounced is something which the speaker dislikes. 
 
 Still, the term is susceptible of full and accurate explanation, though 
 it may not be easy to set it lucidly forth without first investigating the 
 archaeology of our history, rather more deeply than may suit hasty 
 talkers and superficial thinkers, but with no greater expenditure of 
 time and labour than every member of a great and free state ought 
 gladly to bestow, in order that he may rightly comprehend and appre- 
 ciate the polity and the laws in which, and by which he lives, and 
 moves, and has his civic being. 
 
 R 
 
2 WHAT IS THE CONSTITUTION ? 
 
 Some furious Jacobins, at the close of the last century, used to 
 clamour that there was no such thing as the English Constitution, 
 because it could not be produced in full written form like that of the 
 United States, or like those with which Sieyes crammed the pigeon- 
 holes of his bureau, to suit the varying phases of the first years of the 
 French Revolution. And, as the 'trade of Constitution-mongering is 
 again thriving on the Continent, perhaps some who see that other 
 nations are providing themselves with full written formulas of social 
 and political rights and processes, in all the paraphernalia of article, 
 section, supplement and proviso, while England is content with her 
 old statute-book, and old traditional government and laws may think 
 that the term " English Constitution " means nothing beyond the no- 
 meaning of designating the actual state of things in the country at the 
 particular moment when the phrase is used, and which, of course, is 
 liable to vary with the varying hour. 
 
 In order to meet these cavils, there is no occasion to resort to the 
 strange dogma of Burke, that our ancestors, at the Revolution of 1688, 
 bound, and had a right to bind, both themselves and their posterity to 
 perpetual adherence to the exact order of things then established; nor 
 need we rely solely on the eulogies which foreign as well as native 
 writers, a hundred years ago, used to heap upon our system of govern- 
 ment. Those panegyrics, whether exaggerated or not, were to a great 
 extent supported by reasonings and comparisons, which are now wholly 
 inapplicable. But, without propping his political creed on them, an 
 impartial and honest investigator may still remain convinced that 
 England has a Constitution, and that there is ample cause why she 
 should cherish it. And by this it is meant, that he will recognise and 
 admire, in the history, the laws, and the institutions of England, certain 
 great leading principles, and fundamental political rules, which have 
 existed from the earliest periods of our nationality down to the present 
 time; expanding and adapting themselves to the progress of society and 
 civilisation, advancing and varying in development, but still essentially 
 the same in substance and in spirit. 
 
 These great primeval and enduring principles are the principles of 
 the English Constitution. And we are not obliged to learn them 
 from conflicting speculations or suppositions ; for they are imperishably 
 recorded in the Great Charter, and in the Charters and Statutes con- 
 nected with and confirmatory of Magna Charta, with which the 
 volume of the laws of the land auspiciously commences. In Magna 
 Charta itself, that is to say, in a solemn instrument deliberately agreed 
 on by the king, the prelates, the great barons, the gentry, the 
 burghers, the yeomanry, and all the freemen of the realm, at an epoch 
 which we have a right to consider the commencement of our nationality, 
 we can trace all these great principles, some in the germ, some more 
 fully revealed. In the statute entitled Confirmatio Chartarum, which 
 is to be read as a supplement to its great original, we discern these 
 principles manifested with additional clearness. And thus, at the very 
 dawn of the history of the present English nation, we behold the 
 foundations of our great political institutions imperishably laid, and 
 their essential forms proclaimed. 
 
PRIMARY PRINCIPLES OF THE CONSTITUTION. 3 
 
 These great primeval and enduring principles of our Constitution 
 are as follows : 
 
 The Government of the Country by an hereditary sovereign, ruling 
 with limited powers, and bound to summon and consult a Parliament 
 of hereditary Peers, and of elective representatives of the Commons. 
 
 That the'Subjects' money shall not be taken by the Sovereign, unless 
 with the Subjects' consent, expressed by his representatives in Parliament. 
 
 That no man be arbitrarily fined or imprisoned, or in any way 
 punished, except after a lawful trial. 
 
 Trial by Jury. 
 
 That justice shall not be sold or delayed. 
 
 These great constitutional principles can all be proved, either by 
 express terms, or by fair implication, from Magna Charta, and its 
 above-mentioned Supplement. 
 
 Their vigorous development was aided and attested in many subse- 
 quent statutes, especially in the Petition of Right and the Bill of 
 Rights ; in each of which the English nation, at a solemn crisis, 
 solemnly declared its rights, and solemnly acknowledged its obligations: 
 two enactments which deserve to be cited, not as ordinary laws, but 
 as constitutional compacts, and to be classed as such with the Great 
 Charter, of which they are the confirmers and the exponents. 
 
 Lord Chatham called these three statutes " The Bible of the English 
 Constitution," to which appeal is to be made on every grave political 
 question. The great statesman's advice is still sound. It deserves 
 to be considered by subjects as well as by princes ; by popular leaders 
 without the walls of Parliament, as well as by Ministers within them. 
 In the present period of general commotion, when startling changes in 
 our system of government are advocated by still more startling means, 
 while at the same time there is a general feeling of the necessity for 
 some change being effected, these texts of our Constitution deserve 
 peculiar study, in order that we may learn from them, First, What 
 our Constitution is, and whether it deserves to be earnestly upheld by 
 us as a national blessing, or ought to be looked on as an effete 
 incumbrance, whose euthanasia we should strive to accelerate ; and 
 Secondly, That when we have convinced ourselves of its merit, we may 
 be able to test proposed measures by their conformity with or hostility 
 to its principles. 
 
 It is remarkable how few even of educated Englishmen possess, or have 
 ever read these three great statutes. Magna Charta, in particular, is on 
 everybody's lips, but in nobody's hands ; and, though perpetually talked 
 of, is generally talked of in utter ignorance of its contents, beyond a vague 
 impression that it prohibits arbitrary imprisonment, and is in favour of 
 Trial by Jury. If the publication of this little Treatise tend to fami- 
 liarise any of my fellow-countrymen with its true letter and spirit, 
 I shall assuredly not think that my labour in compiling and in com- 
 menting has been thrown away. 
 
 A remark has been made in the preceding page respecting the 
 epoch of the Great Charter, the correctness of which every reader may 
 not admit as self-evident, but which is of vital importance in esti- 
 mating the full nature and value of that great corner-stone of our 
 
 B 2 
 
4 OUR CONSTITUTION COEVAL WITH OUR NATIONALITY. 
 
 Constitution. It has been said that Magna Charta is coeval with the 
 commencement of our true nationality ; in other words, that we have 
 had our present Constitution, as represented in Magna Charta, through- 
 out the whole period of our true national history. This is best 
 explained at the outset, though at the risk of enouncing what to some 
 may be historical truisms. 
 
 Our English nation is the combined product of several great elements 
 of population. Of these there have been four principal ones the 
 Saxon, the British (i. e. the Romanised Celtic), the Danish, and the 
 Norman. The Saxon is mentioned first, as being undoubtedly the 
 most important, and as constituting the chief fountain with which the 
 other sources have mingled, forming at last in their complete junction 
 the English people such as it has since been, and such as it now is. 
 But each of the four elements has largely modified the rest, and each 
 has exercised important influence in determining our national character 
 and our national career. To take the last of them in point of date 
 by the influx into this island of the victorious Normans, (that is to 
 say, of Scandinavians by origin, who had for 150 preceding years 
 been settled in France,) the former Government in this island was over- 
 thrown ; new divisions of rank and class were introduced ; new 
 tribunals and new laws regulated property and person ; almost the 
 whole of England was parcelled out to new men to hold on new terms, 
 and a martial nobility of the bravest and most energetic race that ever 
 existed, was far and wide planted as a dominant class in the land.* 
 
 Moreover, although the coming over of the Normans made up the 
 last great element of our population, many years elapsed before it 
 coalesced with the rest. For upwards of a century after the Conquest, 
 
 * Gibbon in his seventh volume, sketches the Norman character and early con- 
 quests with his usual power and splendour. He ratifies the comparison between 
 the Normans and Faxons drawn by William of Malmsbury ; and finally pronounces 
 that " England was assuredly a gainer by the Conquest." Sismondi, also, (" His- 
 toire de Fra^ais," vol. iii., p. 174), has brilliantly and powerfully portrayed the 
 superiority of the Normans to the degenerate French noblesse, and the crushed and 
 servile Romanesque provincials, from whom they wrested the district in the north 
 of Gaul, which still bears the name of Normandy. It was not merely by extreme 
 valour and ready subordination to military discipline, that the Normans were pre- 
 eminent among all the conquering races of the Gothic stock, but also by an instinc- 
 tive faculty of appreciating and adopting the superior civilisations which they 
 encountered. Thus Duke Rollo and his followers readily embraced the creed, 
 the language, the laws, and the arts which France, in those troubled and evil times 
 with which the Capetian dynasty commenced, still inherited from Imperial Rome 
 and Imperial Charlemagne. " Us adopterent les usages, les devoirs, la subordination 
 que les capitulaires des empereurs et les rois avoient institues. Mais ce qu'ils ap- 
 porterent dans 1 'application de ces lois, ce fut 1'esprit de vie, 1 'esprit de liberte, 
 1'habitude de la subordination militaire, et 1'intelligence d'un etat politique qui 
 conciliat la surete de tous avec 1'independence de chacun." So also in all chivalric 
 feelings, in enthusiastic religious zeal, in almost idolatrous respect to females if of 
 gentle birth, in generous fondness for the nascent poetry of the time, in a keen in- 
 tellectual relish for subtle thought and disputation, in a taste for architectural 
 magnificence, and all courtly refinement and pageantry, the Normans were the 
 Paladins of the world. Their brilliant qualities were sullied with many darker 
 traits of pride, of merciless cruelty, and of brutal contempt for the industry, the 
 rights, and the feelings of all whom they considered the lower classes of mankind. 
 Still it is to the Norman element in our nation, that much of England's greatness 
 and glory is due. And I believe that most of the free institutions which we justly 
 
COMMENCEMENT OF OUR NATIONALITY. 5 
 
 Anglo-Norman and Anglo-Saxon kept aloof from each other ; the one 
 in haughty scorn, the other in sullen abhorrence. They were two 
 peoples, though living in the same land. It is not until the thirteenth 
 century, the period of the reigns of John and his son and grandson, 
 that we can perceive the existence of any feeling of common nationality 
 among them. But in studying the history of these reigns, we read of 
 the old dissensions no longer. The Saxon no more appears in civil 
 war against the Norman, the Norman no longer scorns the language of 
 the Saxon, or refuses to bear together with him the name of English- 
 man. No part of the community think themselves foreigners to 
 another part. They feel that they are all one people, and they have 
 learned to unite their efforts for the common purpose of protecting the 
 rights and promoting the welfare of all. The fortunate loss of the Duchy 
 of Normandy in John's reign, greatly promoted these new feelings. 
 Thenceforth our barons' only homes were in England. One language had, 
 in the reign of Henry III., become the language of the land, and that, also, 
 had then assumed the form in which we still possess it.* One law, in 
 the eye of which all freemen are equal without distinction of race, 
 was modelled, and steadily enforced, and still continues to form the 
 groundwork of our judicial system. f 
 
 With this period our true nationality commences ; for our history 
 from this time forth is the history of a national life, then complete and 
 still in being. All before this period is a mere history of elements, 
 and of the processes of their fusion. The first great event of this 
 period, the first effort of this awakened English spirit, was the obtaining 
 of Magna Charta by all and for all the freemen of the land. The 
 constitutional principles promulgated therein were at once the first 
 fruits and the guarantees of our nationality ; and we are enabled to 
 appeal to them as embodying the terms of an original contract between 
 
 cherish, are quite as much due to the Normans as to the Saxons. " C'est peut-etre 
 a la Conquete des Normands que TAngleterre a du ses libertes," is the expression 
 of Guizot (" Essais sur 1'Histoire de France,' 1 vi. Essai, Chap, prem.) And who- 
 ever will peruse the admirable analysis of the origin of our Representative systems 
 which that great historian introduces near the close of the Treatise referred to, and 
 will also study in " Palgrave's History of the English Commonwealth," the Norman 
 origin of our Trial by Jury, will feel little doubt of the importance and the ultimate 
 blessing of the Norman Conquest ; fearful as were the sufferings which it caused to 
 some generations. 
 
 I have dwelt on this topic at greater length, on account of the absurd and 
 fallacious tone in which the Norman Conquest is spoken of in some standard works 
 on our history and laws, from which it might be supposed that the Battle of 
 Hastings led to little more than the substitution of one Royal family for another 
 on the throne of this country, and to the garbling and changing of some of our 
 laws through the "cunning of the Norman lawyers." 
 
 * The earliest extant specimen of the English language, as contra-distinguished 
 from the Saxon and the semi-Saxon, is the proclamation of Henry III. to the people 
 of Huntingdonshire, A. D. 1258. See " Latham on the English Language," p. 77, 
 2nd Ed. 
 
 f Our Common Law, with its peculiar features of Pleading, &c., assumed its 
 present form in the thirteenth century. See Bracton's Treatise, written in Henry 
 III.'s reign. During the same period, also, Trial by Jury in criminal charges was 
 generally introduced. Some remarks on this will be introduced in an after part of 
 this treatise, in commenting on the provisions of Magna Charta. 
 
6 MAGNA CHARTA ; HOW GAINED. 
 
 King and People in literal truth, and not in the unreal and fallacious 
 sense in which that expression has frequently been, misused. 
 
 The Charter with which our Statute-book commences, and with 
 which alone the greater part even of professional students are familiar, 
 is not the original Great Charter of John, but is a copy of it, as 
 confirmed by Henry III., with several important modifications and 
 omissions. Both Charters may be seen at length in the original, in 
 Blackstone's admirable tract on the Great Charter ; a work far superior 
 to any of his others in industrious research and sound critical judgment; 
 and in which all the preliminary documents and corroborative instru- 
 ments connected with Magna Charta, down to its final and peaceful 
 establishment, in the 28th year of Edward I., are chronologically 
 arranged and compared.* In the following pages an English version 
 will be given of the whole of the Great Charter itself, as conceded by 
 John to the host of " God and the Holy Church," as the nobility, the 
 gentry, the yeomanry, and the free burghers of England termed them- 
 selves, when they marched against the tyrant and his foreign merce- 
 naries to Runnymede, and laid the foundation of the future liberties of 
 their country, 632 years ago. I will then quote the material provisions 
 of the Confirmatio Chartarum, and proceed to point out how the great 
 constitutional principles which I have before enumerated, are all embodied 
 in these primary manifestations of our nation's will. 
 
 It may, however, be useful to remind some readers, before they pro- 
 ceed to the perusal of the Great Charter, that they will find in it many 
 provisions that have lost their practical importance with the decay of 
 the feudal system, the tyranny of which they were designed to mitigate. 
 But their value was inestimable at the time; and a right understanding 
 of the oppressiveness of feudalism under the Anglo-Norman kings, is 
 essential not only for the purpose of studying the history of the time, 
 but for the correct discernment and appreciation of the origin and nature 
 of many of our most enduring institutions. Under the feudal system, 
 as the Norman Conqueror established it in this island in an intensity 
 unparalleled on the Continent, the king, as lord paramount of his 
 barons, and of all who held their lands by military tenure, exacted of 
 them military service, or a pecuniary payment in lieu thereof, called 
 escuage or scutage, whenever he thought fit, and for which the constant 
 wars and troubles of the times always furnished a ready excuse. Other 
 exactions of money payments, under the title of aids, were continually 
 demanded. The heir, on succeeding to his estate, was called on for a 
 payment, under the title of " relief," If he was a minor, the lord took 
 .possession of his land as guardian, and used it or abused it as he pleased 
 till the heir attained his majority. The lord, also, claimed the right of 
 tendering his ward a husband or wife ; and if the ward declined to 
 marry the person so selected, the ward forfeited to the lord such a sum 
 of money as the alliance was considered worth. The exercise of these 
 claims, and various others of a similarly oppressive character, was 
 
 * The only defect of any consequence in this clief d'ceuvre of Blackstone is, that 
 he does not reject with sufficient decision the myth of the Great Charter having been 
 copied from a lost and found Charter of Henry I. 
 
THE GREAT CHARTER OF JOHN. 7 
 
 regulated by the mere balance of strength between the king and his 
 vassals. The landholders of inferior rank, who held their lands by 
 socage tenure, as it was termed, i.e., the modern freehold tenure, were 
 less subject to these exactions, though far from being secure from some of 
 them. Most of the great towns and cities belonged to the king, as 
 feudal lord, who levied sums of money on them, called talliages, at his 
 pleasure. Many, however, of the English boroughs had already pur- 
 chased charters and liberties from the Crown, and had regained some 
 of their municipal rights of local self-government. All these classes 
 had grievances to redress, and the Great Charter contains remedial 
 measures applicable to them all. The more important of these, that is 
 to say, those which, besides redressing an immediate wrong, contain 
 the germ of a permanent right, will be distinguished in the following 
 translation of the Great Charter by a difference in type. And the 
 reader's attention will be similarly directed to those clauses which at 
 once lay down broad enduring principles of free government, the operation 
 of which is general as humanity itself, and is unlimited by time or place. 
 
 JOHN, by the grace of God King of England, Lord of Ireland, Duke of Normandy, 
 Aquitaine, and Count of Anjou, to the Archbishops, Bishops, Abbots, Earls, 
 Barons, Justiciaries of the Forests, Sheriffs, Governors, Officers, and to all 
 Bailiffs, and others his lieges, greeting. Know ye, that we, hi the presence of 
 God, and for the salvation of our soul, and the souls of all our progenitors and 
 successors, and unto the honour of God and the advancement of Holy Church, 
 and amendment of our Realm, by advice of our venerable Father, STEPHEN, 
 Archbishop of Canterbury, Primate of ah" England and Cardinal of the Holy 
 Roman Church, HENRY, Archbishop of Dublin, WILLIAM of London, PETER of 
 Winchester, JOCELIN of Bath and Glastonbury, HUGH of Lincoln, WALTER of 
 Worcester, WILLIAM of Coventry, BENEDICT of Rochester, Bishops, and Master 
 PANDULPH, Sub-Deacon and Familiar of our Lord the Pope, Brother AYMERIC, 
 Master of the Temple in England, and the Noble Persons, WILLIAM MARISCALL, 
 Earl of Pembroke, WILLIAM, Earl of Salisbury, WILLIAM, Earl of Warren, 
 WILLIAM, Earl of Arundel, ALAN DE GALLOWAY, Constable of Scotland, WARIN 
 FITZ GERALD, PETER FITZ HERBERT, and HUBERT DE BURGH, Seneschal of 
 Poitou, HUGH DE NEVILLE, MATTHEW FITZ HERBERT, THOMAS BASSET, ALAN 
 BASSET, PHILIP ALBINEY, ROBERT DE ROPPELL, JOHN MARSHALL, JOHN FITZ 
 HUGH, and others our liegemen, have, in the first place, granted to God, and by 
 this our present Charter confirmed, for us and our heirs for ever : 
 
 1. That the Church of England shall be free, and enjoy her right entire, and her 
 liberties inviolable ; and we will have them so observed, that it may appear from hence 
 that the freedom of elections,which was reckoned chief and indispensable to the English 
 Church, and which we granted and confirmed by our Charter, and obtained the confir- 
 mation of, from Pope Innocent III., before the discord between us and our barons, was 
 granted of mere free will, which Charter we shall observe, and we do will it to be faith- 
 fully observed by our heirs for ever. 2. We also have granted to all the freemen of our 
 kingdom, for us and for our heirs for ever, all the underwritten liberties, to be had and 
 holden by them and their heirs, of us and our heirs for ever : If any of our earls, or 
 barons, or others, who hold of us in chief by military service, shall die, and at the 
 time of his death his heir shall be of full age, and owes a relief, he shall have 
 
8 THE GREAT CHARTER OP JOHN. 
 
 his inheritance by the ancient relief ; that is to say, the heir or heirs of an earl, for 
 a whole earldom, by a hundred pounds ; the heir or heirs of a baron, for a whole 
 barony, by a hundred pounds ; the heir or heirs of a knight, for a whole knight's 
 fee, by a hundred shillings at most ; and whoever oweth less shall give less, 
 according to the ancient custom of fees. '6. But if the heir of any such shall be under 
 age, and shall be in ward when he comes of age, he shall have his inheritance 
 without relief and without fine. 4. The keeper of the land of such an heir being 
 under age, shall not take of the land of the heir but reasonable issues, reasonable 
 customs, and reasonable services, and that without destruction and waste of his men 
 and his goods ; and if we commit the custody of any such lands to the sheriff', or any 
 other who is answerable to us for the issues of the land, and he shall make destruc- 
 tion and waste of the lands which he hath in custody, we will take of him amends, 
 and the land shall be committed to two lawful and discreet men of that fee, who 
 shall answer for the issues to us, or to him to whom we shall assign them : and if 
 we sell or give to any one the custody of any such lands, and he therein make destruc- 
 tion or waste, he shall lose the same custody, which shall be committed to two lawful 
 and discreet men of that fee, who shall in like manner answer to us as aforesaid. 
 5. But the keeper, so long as he shah 1 have the custody of the land, shall keep up 
 the houses, parks, warrens, ponds, mills, and other things pertaining to the land, 
 out of the issues of the same land ; and shall deliver to the heir, when he comes of 
 full age, his whole land, stocked with ploughs and carriages, according as the time 
 of wainage shall require, and the issues of the land can reasonably bear. 6. Heirs 
 shall be married without disparagement, and so that before matrimony shall be con- 
 tracted, those who are near in blood to the heir shall have notice. 7. A widow, 
 after the death of her husband, shall forthwith and without difficulty have her 
 marriage and inheritance ; nor shall she give anything for her dower, or her mar- 
 riage, or her inheritance, which her husband and she held at the day of his death ; 
 and she may remain in the mansion house of her husband forty days after his death, 
 within which term her dower shall be assigned. 8. No widow shall be distrained 
 to marry herself, so long as she has a mind to live without a husband ; but yet 
 she shall give security that she will not marry without our assent, if she hold of 
 us ; or without the consent of the lord of whom she holds, if she hold of another.* 
 9. Neither we nor our bailiffs shall seize any land or rent for any debt so long as the 
 chattels of the debtor are sufficient to pay the debt ; nor shall the sureties of the debtor 
 be distrained so long as the principal debtor is sufficient for the payment of the debt ; 
 and if the principal debtor shall fail in the payment of the debt, not having wherewithal 
 to pay it, then the sureties shall answer the debt ; and if they will they shall have the 
 lands and rents of the debtor, until they shall be satisfied for the debt which they paid 
 for him, unless the principal debtor can show himself acquitted thereof against the said 
 sureties, 10. If any one have borrowed anything of the Jews, more or less, and 
 die before the debt be satisfied, there shall be no interest paid for that debt, so long 
 as the heir is under age, of whomsoever he may hold ; and if the debt falls into our 
 hands, we will only take the chattel mentioned in the deed. 11. And if any one 
 shall die indebted to the Jews, his wife shall have her dower and pay nothing of 
 that debt ; and if the deceased left children under age, they shall have necessaries 
 provided for them, according to the tenement of the deceased ; and out of the 
 residue the debt shall be paid, saving however the service due to the lords ; and 
 in like manner shall it be done touching debts due to others than the Jews. 
 12. No scutage or aid shall be imposed in our kingdom, unless by the general council 
 of our kingdom ; except for ransoming our person, making our eldest son a knight, and 
 once for marrying our eldest daughter; and for these there shall be paid a reasonable 
 aid. In like manner it shall be concerning the aids of the City of London. 13. And the 
 City of London shall have all its ancient liberties and free customs, as well by land as 
 by water : furthermore we will and ^rant, that all other cities and boroughs, and towns 
 and ports, shall have all their liberties and free customs. 14. And for holding the 
 general council of the kingdom concerning the assessment of aids, except in the 
 
 * By the old law, grounded on the feudal exactions, a woman could not be endowed 
 without a fine paid to the lord, neither could she marry again without his licence, 
 lest she should contract herself, and so convey part of the feud to the lord's enemy. 
 This licence the lords took care to be well paid for, and, as it seems, would some- 
 times force the dowager to a second marriage in order to gain the fine. 2 Bl.Com. 1 35. 
 
THE GREAT CHARTER OF JOHN. 9 
 
 three cases aforesaid, and for the assessing of scutages, we shall cause to be summoned 
 the archbishops, bishops, abbots, earls, and greater barons of the realm, singly 
 by our letters. And furthermore we shaU cause to be summoned generally by our 
 sheriff's and bailiffs, all others who hold of us in chief, for a certain day, that is\to 
 say, forty days before their meeting at least, and to a certain place j and in all letters 
 of such summons we will declare the cause of such summons. And summons being thus 
 made, the business of the day shall proceed on the day appointed, according to the advice 
 of such as shall be present, although all that were summoned come not. 1 5. We will not 
 for the future grant to any one, that he may take aid of his own free tenants ; unless 
 to ransom his body, and to make his eldest son a knight, and once to marry his 
 eldest daughter ; and for this there shall be only paid a reasonable aid. 16. No 
 man shall be distrained to perform more service for a knight's fee, or other free 
 tenement, than is due from thence. 17. Common pleas shall not follow our court, 
 but shall be holden in some place certain.* 1 8. Assizes of novel disseisin, and of 
 mort d'ancestor, and of darrein presentment, shall not be taken but in their proper 
 counties, and after this manner : We, or if we should be out of the realm, our chief 
 justiciary, shall send two justiciaries through every county four times a year, who, 
 with four knights, chosen out of every shire by the people, shall hold the said 
 assizes, in the county, on the day, and at the place appointed. 19. And if any 
 matters cannot be determined on the day appointed for holding the assizes in each 
 county, so many of the knights and freeholders as have been at the assizes aforesaid, 
 shall stay to decide them, as is necessary, according as there is more or less business. 
 20. A freeman shall not be amerced for a small fault, but after the manner of the 
 fault ; and for a great crime according to the heinousness of it, saving to him his 
 contenement ; and after the same manner a merchant, saving to him his merchandise. 
 And a villein f shall be amerced after the same manner, saving to him his wainage, 
 
 * By the ancient Saxon constitution there was only one superior court of justice 
 in the kingdom, and that court had cognizance both of civil and spiritual causes, 
 viz., the wittenagemote or general council, which assembled annually, or oftener, 
 wherever the king kept his Christmas, Easter, or Whitsuntide, as well to do private 
 justice as to consult upon public business. At the conquest the ecclesiastical juris- 
 diction was diverted into another channel, and the conqueror established a constant 
 court in his own hall, thence called by Bracton and other ancient authors aula regia 
 or aula regis. This court was composed of the king's great officers of state resident 
 in his palace, Mid usually attendant on his person ; such as the lord high constable 
 and lord mareschal, who chiefly presided in matters of honour and of arms, deter- 
 mining according to the law military and the law of nations. Besides these, there 
 were the lord high steward and lord great chamberlain, the steward of the house- 
 hold, the lord chancellor, whose peculiar business it was to keep the king's seal, and 
 examine all such writs, grants and letters as were to pass under that authority, and 
 the lord high treasurer, who was the principal adviser in all matters relating to the 
 revenue. These high officers were assisted by certain persons learned in the laws, 
 who were called the king's justiciars or justices, and by the greater barons of par- 
 liament, all of whom had a seat in the aula reyia, and formed a kind of court of 
 appeal, or rather of advice, in matters of great moment and difficulty ; all these in 
 their several departments transacted all secular business both criminal and civil, and 
 likewise the matters of the revenue ; and over all presided one special magistrate, 
 called the chief justiciar, or capitalis justiciarius totius Anglice, who was also the 
 principal minister of state, the second man in the kingdom, and, by virtue of his 
 office, guardian of the realm in the king's absence ; and this officer it was who prin- 
 cipally determined all the vast variety of causes that arose in this extensive jurisdic- 
 tion ; and from the plenitude of his power grew at length both obnoxious to the 
 people and dangerous to the government which employed him. 
 
 This great universal court being bound to follow the king's household in all his 
 progresses and expeditions, the trial of common causes therein was found very 
 burthensome to the subject ; wherefore King John, who dreaded also the power of 
 the justiciar, very readily consented to that article which now forms the above 
 chapter of Magna Charta. 3 Bl. Com. 38. 
 
 t Under the Anglo-Norman kings the bulk of the peasantry was in a state of 
 villeinage or serfdom. The villein was absolutely dependent on the will of his lord, 
 
10 THE GREAT CHAETER OF JOHN". 
 
 if he falls under our mercy ; and none of the aforesaid amerciaments shall be 
 assessed but by the oath of honest men in the neighbourhood. 21. Earls and 
 barons shall not be amerced, but by their peers, and after the degree of the offence. 
 22. No ecclesiastical person shall be amerced for his lay tenement, but according 
 to the proportion of the others aforesaid, and not according to the value of his 
 ecclesiastical benefice. 23. Neither a town nor any tenant shall be distrained to 
 make bridges or banks, unless that anciently and of right they are bound to do it. 
 
 24. No sheriff, constable, coroner, or other our bailiff's, shall hold pleas of the crown. 
 
 25. All counties, hundreds, wapentakes, and tythings shall stand at the old rents, 
 without any increase ; except in our demesne manors. .26. If any one holding 
 of us a lay-fee die, and the sheriff, or our bailiffs, show our letters patent of 
 summons for debt which the dead man did owe to us, it shall be lawful for the 
 sheriff or our bailiff to attach and inroll the chattels of the dead, found upon his lay- 
 fee, to the value of the debt, by the view of lawful men, so as nothing be removed 
 until our whole clear debt be paid ; and the rest shall be left to the executors to 
 fulfil the testament of the dead, and if there be nothing due from him to us, all the 
 chattels shall go to the use of the dead, saving to his wife and children their reasonable 
 shares. 27. If any freeman shall die intestate, his chattels shall be distributed by 
 the hands of his nearest relations and friends, by view of the Church ; saving to 
 every one his debts which the deceased owed to him. 28. No constable or bailiff of 
 ours shall take corn or other chattels of any man, unless he presently give him 
 money for it, or hath respite of payment by the good-will of the seller. 29. No 
 constable shall distrain any knight to give money for castle guard, if he himself will 
 do it in his person, or by another able man, in case he cannot do it through any 
 reasonable cause. And if we lead him, or send him in an army, he shall be free from 
 such guard for the time he shall be in the army by our command. 30. No sheriff 
 or bailiff of ours, or any other, shall take horses or carts of any freeman for 
 carriage, but by the good- will of the said freeman. 31. Neither shall we nor our 
 bailiffs take any man's timber for our castles, or other uses ; unless by the consent 
 of the owner of the timber. 32. We will retain the lands of those convicted of 
 felony only one year and a day, and then they shall be delivered to the lord of 
 the fee. 33. All wears for the time to come, shall be put down in the rivers of 
 Thames and Medway, and throughout all England, except upon the sea-coast. 
 34. The writ which is called preecipe, for the future, shall not be made out to any one 
 of any tenement, whereby a freeman may lose his court. 35. There shall be 
 one measure of wine and one of ale, through our whole realm ; and one measure 
 of corn, that is to say, the London quarter ; and one breadth of dyed cloth, 
 and russets, and haberjeets, that is to say, two ells within the lists ; and it shall be 
 of weights, as it is of measures. 36. Nothing from henceforth shall be given or 
 taken, for a writ of inquisition of life or limb, but it shall be granted freely, and not 
 denied. 37. If any do hold of us by fee-farm, or by socage, or by burgage, and he 
 hold also lands of any other by knight's service, we will not have the custody of 
 the heir or land, which is holden of another man's fee by reason of that fee-farm, 
 socage, or burgage ; neither will we have the custody of such fee-farm, socage, or 
 burgage, except knight's service was due to us out of the same fee-farm. We will 
 not have the custody of an heir, nor of any land which he holds of another by 
 knight's service, by reason of any petty serjeanty that holds of us, by the 
 
 and whatever he possessed was the property of his lord, who might seize it at his 
 pleasure. The lord was indictable in the king's courts for any atrocious personal 
 injury inflicted by him upon his villein, which was the sole protection which the 
 laws gave to the latter against his owner. 
 
 Villeinage was, however, not absolute slavery. It was only to his lord that the 
 villein was in this humble relation. Towards all others he was free, and had the 
 rights of a freeman ; consequently, by flight into other parts of the country many 
 villeins escaped from their state of bondage ; and though the lord had a legal right 
 to reclaim them, his pursuit must often have been ineffectual. The indulgence also 
 of many lords granted their villeins many indulgencies, which gradually ripened from 
 customary privileges into legal rights. Many lords emancipated their villeins ; and 
 by these and other modes the peasantry gradually emerged from the condition of 
 serfs to that of free labourers. 
 
THE GREAT CHARTER OF JOHN. 11 
 
 service of to pay a knife, arrow, or the like. 38. No bailiff from henceforth shall put 
 any man to his law upon his own bare saying, without credible witnesses to prove it. 
 39. No freeman shall be taken or imprisoned, or disseised, or outlawed, or banished, 
 or any ways destroyed, nor will we pass upon him, nor condemn him, unless by the 
 lawful judgment of his peers, or by the law of the land. 40. We will sell to no 
 man, we will not deny to any man, either justice or right. 41 . All merchants shall have 
 safe and secure conduct, to go out of, and to come into England, and to stay there, and 
 to pass as well by land as by water, for buying and selling by the ancient and allowed 
 customs, without any evil tolls ; except in time of war, or when they are of any 
 nation at war with us. And if there be found any such in our land, in the 
 beginning of the war, they shall be attached, without damage to their bodies or 
 goods, until it be known unto us, or our chief justiciary, how our merchants be 
 treated in the nation at war with us ; and if ours be safe there, the others shall be 
 safe in our dominions. 42. It shall be lawful, for the time to come, for any one 
 to go out of our kingdom, and return safely and securely, by land or by water, 
 saving his allegiance to us ; unless in time of war, by some short space, for 
 the common benefit of the realm, except prisoners and outlaws, according to the 
 law of the land, and people in war with us, and merchants who shall be in such 
 condition as is above mentioned. 43. If any man hold of any escheat, as of the 
 honour of Wallingford, Nottingham, Boulogne, Lancaster, or of other escheats 
 which be in our hands, and are baronies, and die, his heir shall give no other 
 relief, and perform no other service to us, than he would to the baron, if it were 
 in the baron's hand ; we will hold it after the same manner as the baron held it. 44. 
 Those men who dwell without the forest, from henceforth shall not come before our 
 justiciaries of the forest, upon common summons, but such as are impleaded, or are 
 pledges for any that are attached for something concerning the forest. 45. We will 
 not make any justices, constables, sheriffs, or bailiffs, but of such as know the law of the 
 realm and mean duly to observe it. 46. All barons who have founded abbeys, and have 
 the kings of England's charters of advowson, or the ancient tenure thereof, shall have 
 the keeping of them, when vacant, as they ought to have. 47. All forests that have 
 been made forests in our time, shall forthwith be disforested ; and the same shall be 
 done with the banks that have been fenced in by us in our time. 48. All evil customs 
 concerning forests, warrens, foresters and warreners, sheriffs and their officers, 
 rivers and their keepers, shall forthwith be inquired into in each county, by twelve 
 sworn knights of the same shire, chosen by creditable persons of the same county ; 
 and within forty days after the said inquest, be utterly abolished, so as never to be 
 restored : so as we are first acquainted therewith, or our justiciary, if we should 
 not be in England. 49. We will immediately give up all hostages and writings 
 delivered unto us by our English subjects, as securities for their keeping the peace, 
 and yielding us faithful service. 50. We will entirely remove from our bailiwicks 
 the relations of Gerard de Atheyes, so that for the future they shall have no baili- 
 wick in England : we will also remove Engelard de Cygony, Andrew Peter, and 
 Gyon, from the Chancery ; Gyon de Cygony, Geoffrey de Martyn and his brothers ; 
 Philip Mark, and his brothers, and his nephew, Geoffrey, and their whole retinue. 
 51. As soon as peace is restored, we will send out of the kingdom all foreign 
 soldiers, cross-bowmen, and stipendiaries, who are come with horses and arms to 
 the prejudice of our people. 52. If any one has been dispossessed or deprived by 
 us, without the legal judgment of his peers, of his lands, castles, liberties, or right, 
 we will forthwith restore them to him ; and if any dispute arise upon this head, let 
 the matter be decided by the five-and-twenty barons hereafter mentioned, for the 
 preservation of the peace. As for all those things of which any person has, without 
 the legal judgment of his peers, been dispossessed or deprived, either by King Henry 
 our father, or our brother King Richard, and which we have in our hands, or are 
 possessed by others, and we are bound to warrant and make good, we shall have a 
 respite till the term usually allowed the crusaders ; excepting those things about 
 which there is a plea depending, or whereof an inquest hath been made, by our 
 order, before we undertook the crusade, but when we return from our pilgrimage, 
 or if perchance we tarry at home and do not make our pilgrimage, we will imme- 
 diately cause full justice to be administered therein. 5,i The same respite we 
 shall have (and in the same manner about administering justice, dis-afforesting the 
 forests, or letting them continue) for disafforesting the forests, which Henry our 
 father, and our brother Richard have afforested ; and for the keeping of the lands 
 
12 THE GEE AT CHAETEE OF JOHN. 
 
 which are in another's fee, in the same manner as we have hitherto enjoyed those 
 wardships, by reason of a fee held of us by knight's service ; and for the abbeys 
 founded in any other fee than our own, in which the lord of the fee says he has a 
 right ; and when we return from our pilgrimage, or if we tarry at home, and 
 do not make our pilgrimage, we will immediately do full justice to all the 
 complainants in this behalf. 54. No man shall be taken or imprisoned upon 
 the appeal * of a woman, for the death of any other than her husband. 55. All 
 unjust and illegal fines made with us, and all amerciaments imposed unjustly 
 and contrary to the law of the land, shall be entirely forgiven, or else be left to 
 the decision of the five-and-twenty barons hereafter mentioned for the preservation 
 of the peace, or of the major part of them, together with the aforesaid Stephen, 
 archbishop of Canterbury, if he can be present, and others whom he shall think fit 
 to take along with him ; and if he cannot be present, the business shall notwith- 
 standing go on without him ; but so that if one or more of the aforesaid five-and- 
 twenty barons be plaintiffs in the same cause, they shall be set aside as to what 
 concerns this particular affair, and others be chosen in their room, out of the said 
 five-and-twenty, and sworn by the rest to decide the matter. 56. If we have dis- 
 seised or dispossessed the Welsh, of any lands, liberties, or other things, without the 
 legal judgment of their peers, either in England or in Wales, they shall be imme- 
 diately restored to them ; and if any dispute arise upon this head, the matter shall be 
 determined in the marche by the judgment of their peers ; for tenements in England 
 according to the law of England, for tenements in Wales according to the law of 
 Wales, for tenements of the marche according to the law of the marche ; the same 
 shall the Welsh do to us and our subjects. 57. As for all those things of which a 
 Welshman hath, without the legal judgment of his peers, been disseised or deprived 
 
 * An appeal, in the sense wherein it is here used, does not signify any complaint 
 to a superior court of an injustice done by an inferior one, which is the general use 
 of the word ; but it here means an original suit at the time of its first commence- 
 ment. An appeal, therefore, when spoken of as a criminal prosecution, denotes an 
 accusation by a private subject against another for some heinous crime, demanding 
 punishment on account of the particular injury suffered, rather than for the offence 
 against the public. 
 
 This private process for the punishment of public crimes had probably its origin 
 in those times when a private pecuniary satisfaction, called a weregild, was constantly 
 paid to the party injured, or his relative, to expiate enormous offences. As there- 
 fore during the continuance of this custom, a process was certainly given for 
 recovering the weregild by the party to whom it was due ; it seems that when these 
 offences by degrees grew no longer redeemable, the private process was still con- 
 tinued, in order to insure the infliction of punishment upon the offender, though 
 the party injured was allowed no pecuniary compensation for the offence. 4 Bl. 
 Com. 312. 
 
 An appeal of felony might have been brought for crimes committed either against 
 the parties themselves or their relations. The crimes against the parties themselves 
 were larceny, rape, and arson, and for these, as well as for mayhem, the person 
 robbed, ravished, maimed, or whose houses were burnt, might have instituted this 
 private process. The only crime against one's relation for which an appeal could be 
 brought was that of killing him by either murder or manslaughter. But this could 
 not be brought by every relation, but only by the wife for the death of her husband, 
 or by the heir male for the death of his ancestor, which heirship was also confirmed 
 by an ordinance of King Henry the First to the four nearest degrees of blood. It 
 was given to the wife on account of the loss of her husband ; therefore, if she 
 married again before or pending her appeal, it was lost and gone ; or if she married 
 after judgment, she could not demand execution. The heir must also have been 
 heir male, and such a one as was the next heir by the course of the common law at 
 the time of the killing of the ancestor. But this rule had three exceptions ; first, 
 if the person killed left an innocent wife, she only, and not the heir, could have the 
 appeal ; secondly, if there were no wife, and the heir were accused of the murder, 
 the person who next to him would have been heir male should have brought the 
 appeal ; thirdly, if the wife killed her husband, the heir might appeal her of the 
 death. See further 4 Bl. Com. 315. 
 
THE GREAT CHARTER OF JOHN. 13 
 
 of by King Henry our father, or our brother King Richard, and which we either 
 have in our hands, or others are possessed of, and we are obliged to warrant it, we 
 shall have a respite till the time generally allowed the crusaders; excepting those 
 things about which a suit is depending, or whereof an inquest has been made by our 
 order, before we undertook the crusade : but when we return, or if we stay at home 
 without performing our pilgrimage, we will immediately do them full justice, 
 according to the laws of the Welsh and of the parts before mentioned. 58. We 
 will without delay dismiss the son of Llewellin, and all the Welsh hostages, and 
 release them from the engagements they have entered into with us for the preserva- 
 tion of the peace. 59. We will treat with Alexander, King of Scots, concerning 
 the restoring his sisters and hostages, and his right and liberties, in the same form 
 and manner as we shall do to the rest of our barons of England ; unless by the 
 Charters which we have from his father, William, late King of Scots, it ought to be 
 otherwise ; and this shall be left to the determination of his peers in our court. 
 60. All the aforesaid customs and liberties, which we have granted to be holden in 
 our kingdom, as much as it belongs to us, towards our people of our kingdom, as 
 well clergy as laity shall observe, as far as they are concerned, towards their 
 dependents. 61. And whereas, for the honour of God and the amendment of our 
 kingdom, and for the better quieting the discord that has arisen between us and 
 our barons, we have granted all these things aforesaid ; willing to render them 
 firm and lasting, we do give and grant our subjects the underwritten security, 
 namely, that the barons may choose five-and-twenty barons of the kingdom, whom 
 they think convenient ; who shall take care with all their might, to hold and observe, 
 and cause to be observed, the peace and liberties we have granted them, and by this 
 our present Charter confirmed ; so that if we, our justiciary, our bailiffs, or any of 
 our officers, shall in any circumstance fail in the performance of them, towards any 
 person, or shall break through any of these articles of peace and security, and the 
 offence be notified to four barons chosen out of the five-and-twenty before mentioned, 
 the said four barons shall repair to us, or our justiciary, if we are out of the realm, 
 and laying open the grievance, shall petition to have it redressed without delay : 
 and if it be not redressed by us, or if we should chance to be out of the realm, if it 
 should not be redressed by our justiciary, within forty days, reckoning from the 
 time it has been notified to us, or to our justiciary, (if we should be out of the realm,) 
 the four barons aforesaid shall lay the cause before the rest of the five-and-twenty 
 barons ; and the said five-and-twenty barons, together with the community of the 
 whole kingdom, shall distrain and distress^ us all the ways possible, by seizing our 
 castles, lands, possessions, and in other manner they can, till the grievance is 
 redressed according to their pleasure ; saving harmless our own person, and the 
 person of our queen and children ; and when it is redressed, they shall obey us as 
 before. And any person whatsoever in the kingdom, may swear that he will obey 
 the orders of the five-and-twenty barons aforesaid, in the execution of the premises ; 
 and he will distress us, jointly with them, to the utmost of his power ; and we 
 give public and free liberty to any one that shall please to swear to them, and never 
 shall hinder any person from taking the same oath. 62. As for all those of our 
 subjects who will not, of their own accord, swear to join the five-and-twenty barons 
 in distraining and distressing us, we will issue orders to make them take the same 
 oath as aforesaid. And if any one of the five-and-twenty barons die, or goes out of 
 the kingdom, or is hindered any other way from carrying the things aforesaid into 
 execution, the rest of the said five-and-twenty barons may choose another in his 
 room, at their discretion, who shall be sworn in like manner as the rest. In all 
 things that are committed to the execution of these five-and-twenty barons, if, when 
 they are all assembled together, they should happen to disagree about any matter, 
 and some of them, when summoned, will not, or cannot, come, whatever is agreed 
 upon, or enjoined, by the major part of those that are present, shall be reputed as 
 firm and valid as if all the five-and-twenty had given their consent ; and the afore- 
 said five-and-twenty shall swear, that all the premises they shall faithfully observe, 
 and cause with all their power to be observed. And we will not, by ourselves, or 
 by any other, procure any thing whereby any of these concessions and liberties may 
 be revoked or lessened ; and if any such thing be obtained, let it be null and void ; 
 neither shall we ever make use of it, either by ourselves or any other. And all the 
 ill will, indignations, and rancours that have arisen between us and our subjects, of 
 the clergy and laity, from the first breaking out of the dissension between us, we do 
 
M DEATH OF JOHN. RENEWALS OF THE CHARTER. 
 
 fully remit and forgive : moreover all trespasses occasioned by the said dissension, 
 from Easter in the 15th year of our reign, till the restoration of peace and tranquillity, 
 we hereby entirely remit to all, both clergv and laity, and as far as in us lies do 
 fully forgive. We have, moreover, caused to be made for them the letters patent 
 testimonial of Stephen, lord archbishop of Canterbury, Henry, lord archbishop of 
 Dublin, and the bishops aforesaid, as also of master Pandulph, for the security and 
 concessions aforesaid. 63. Wherefore we will and firmly enjoin, that the Church of 
 England be free, and that all the men in our kingdom have and hold all the afore- 
 said liberties, rights, and concessions, truly and peaceably, freely and quietly, fully 
 and wholly to themselves and their heirs, of us and our heirs, in all things and 
 places, for ever, as is aforesaid. It is also sworn, as well on our part as on the part 
 of the barons, that all the things aforesaid shall be observed ~bona fide and without 
 evil subtilty. Given under our hand, in the presence of the witnesses above-named, 
 and many others, in the meadow called Runingmede, between Windsor and Staines, 
 the 15th day of June, in the 17th year of our reign. 
 
 John died soon after the grant of the Great Charter, leaving England 
 torn by civil war and foreign invasion, both of which had been caused 
 by his perfidy and tyranny. The first act of the great Earl of Pem- 
 broke, as Protector of the Kingdom on the accession of Henry III., was 
 to renew the Great Charter, but with several changes, the most im- 
 portant of which was the omission of the provisions concerning the 
 manner and reason of levying scutages. It assigned as a reason for 
 the omission of this and other weighty matters, that the prelates and 
 barons had agreed to respite the consideration of them till further 
 deliberation could be had, when they and such other things as pertained to 
 the welfare of all should be most fully reviewed and set right. The stipula- 
 tions in John's Charter, which were of a temporary nature, and referred 
 to the troops and allies of that king and his barons respectively, were of 
 course not copied into Henry's Charters. And the provisions for empower- 
 ing the twenty-five chosen barons to redress violations of the Charter, 
 were not renewed. A duplicate of the Charter was forthwith transmitted 
 to Ireland, for the benefit of the king's subjects there ; and writs were 
 sent to the sheriffs of the several English counties, commanding them 
 to cause the Charter of Liberties to be publicly read in full County 
 Court, and to see that its ordinances were fully observed within their 
 several jurisdictions. In the next year, after the French Dauphin had 
 been driven out of the kingdom, and the malcontent English who had 
 fought under him had returned to their allegiance, the Charter of 
 Liberties was granted again, and was again renewed by Henry in the 
 ninth year of his reign, at which same time the Charter of the Forest 
 was granted, whereby many of the most atrocious iniquities of the primi- 
 tive game-laws were redressed. The two Charters were five times 
 renewed between this period and Henry's death. At some of these 
 renewals temporary variations were introduced ; but it is in the form 
 in which it was promulgated in the ninth year of Henry's reign that 
 the Great Charter was solemnly confirmed by his successor, and in 
 that form it appears at the head of our statute book, where (as before 
 mentioned) it is printed from the inspeximus and confirmation of it 
 by Edward I. 
 
TIIH GREAT CHARTER OK HENRY III. 1 :> 
 
 THE GREAT CHARTER, 
 
 (TRANSLATED AS IN THE STATUTES AT LABGE,) 
 
 MADE IN THE NINTH YEAR OP KING HENRY THE THIRD, AND CONFIRMED BY KING 
 EDWARD THE FIRST, IN THE FIVE-AND-TWENTIETH YEAR OF HIS REIGN. 
 
 EDWARD, by the grace of God King of England, Lord of Ireland, 
 and Duke of Guyan : to all archbishops, bishops, &c. We have seen 
 the Great Charter of the Lord Henry, sometimes King of England, our 
 Father, of the Liberties of England, in these words : 
 
 " HENRY, by the grace of God King of England, Lord of Ireland, 
 " Duke of Normandy and Guyan, and Earl of Anjou : To all arch- 
 " bishops, bishops, abbots, priors, earls, barons, sheriffs, provosts, and 
 " officers, and to all bailiffs and other our faithful subjects, which 
 " shall see this present Charter, greeting : Know ye that We, unto the 
 " honour of Almighty God, and for the salvation of the souls of our 
 " progenitors and successors, kings of England, to the advancement of 
 " Holy Church and amendment of our realm, of our mere and free will 
 " have given and granted to all archbishops, bishops, abbots, priors, 
 " earls, barons, and to all freemen of this our realm, these liberties 
 " following, to be kept in our kingdom of England for ever." 
 
 CHAPTER I. 
 
 A Conformation of Liberties. 
 
 " FIRST, we have granted to God, and by this our present Charter have con- 
 " firmed for us and our heirs for ever, that the Church of England shall be free, 
 " and shall have all her whole rights and liberties inviolable. We have granted 
 " also, and given to all the freemen of our realm, for us and our heirs for ever, 
 " these liberties under written, to have and to hold to them and their heirs, of us 
 " and our heirs for ever." 
 
 CHAPTER IT. 
 
 Tlie Relief of the King's Tenant of full Age. 
 [Same as 2nd Chapter of John's Charter.] 
 
 CHAPTER III. 
 
 The Wardship of the Heir within Age. The Heir a KnigU. 
 [Similar to 3rd Chapter of John's Charter.] 
 
 CHAPTER IV. 
 
 No waste shall be made by a Guardian in waste lands. 
 [Same as 4th Chapter of John's Charter.] 
 
 CHAPTER V. 
 
 Guardians shall maintain the Inheritance of Wards. Of Bishoprics, &c. 
 [Similar to 5th Chapter of John's Charter, with addition of like provisions against 
 the waste of ecclesiastical possessions while in the king's hand during a vacancy in 
 the see, &c.] 
 
16 THE GREAT CHARTER OF HENRY III. 
 
 CHAPTER VI. 
 
 Heirs shall be Married without Disparagement. 
 [Similar to 6th Chapter of John's Charter.] 
 
 CHAPTER VII. 
 
 A Widow shall have her Marriage, Inheritance, and Quarantine. The King's 
 
 Widow, &c. 
 [Similar (with additions) to the 7th and 8th Chapters of John's Charter.] 
 
 CHAPTER VIII. 
 
 How Sureties shall be charged to the King. 
 [Same as 9th Chapter of John's Charter.] 
 
 CHAPTER IX. 
 
 The Liberties of London and other Cities and Towns confirmed. 
 [Same as 13th Chapter of John's Charter.] 
 
 CHAPTER X. 
 
 None shall distrain for more Service than is due. 
 [Same as 16th Chapter of John's Charter.] 
 
 CHAPTER XI. 
 
 Common Pleas shall not follow the King's Court. 
 [Same as 17th Chapter of John's Charter.] 
 
 CHAPTERS XII. & XIII. 
 When and before whom Assizes shall be taken. Adjournment for Difficulty. Assizes 
 
 of Darrein Presentment. 
 [Analogous to 18th and 19th Chapters of John's Charter.] 
 
 CHAPTER XIV. 
 
 How Men of all sorts shall be amerced, and by whom. 
 [Same as 20th and 21st Chapters of John's Charter.] 
 
 CHAPTERS XV. & XVI. 
 
 MaUng and defending of Bridges and Banks. 
 [Similar to 23rd Chapter of John's Charter.] 
 
 CHAPTER XVII. 
 
 Holding Pleas of the Crown. 
 [Same as 24th Chapter of John's Charter.] 
 
 CHAPTER XVIII. 
 
 The King's Debtor dying, the King shall be first paid. 
 [Same as 26th Chapter of John's Charter.] 
 
 CHAPTERS XIX , XX., & XXI. 
 
 Purveyors for a Castle. Doing of Castle-ward. Taking of Horses, Carts, and Woods. 
 [Same as 28th, 29th, 30th, and 31st Chapters of John's Charter.] 
 
 CHAPTER XXII. 
 
 How long Felons' Lands shall be holden by the King. 
 [Same as 32nd Chapter of John*s Charter.] 
 
THE GREAT CHARTER OF HENRY III. 17 
 
 CHAPTER XXIII. 
 
 In what %)laces Wears shall be put down. 
 
 [Same as 33rd Chapter of John's Charter.] 
 
 CHAPTER XXIV. 
 
 In what case a Prcecipe in Capite is grantdble. 
 [Same as 14th Chapter of John's Charter.] 
 
 CHAPTER XXV. 
 
 There shall be but one Measure through the Realm. 
 [Same as 35th Chapter of John's Charter.] 
 
 CHAPTER XXVI. 
 
 Inquisition of Life and Member. 
 [Same as 38th Chapter of John's Charter.] 
 
 CHAPTER XXVII. 
 
 Tenure of the King in Socage, and of another by Knight's Service. Petit Serjeanty. 
 [Same as 37th Chapter of John's Charter.] 
 
 CHAPTER XXVIII. 
 
 Wager of Law shall not be without witness. 
 [Same as 38th Chapter of John's Charter.] 
 
 CHAPTER XXIX. 
 
 None shall be condemned without Trial. Justice shall not be sold or deferred.* 
 
 " 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 destroyed ; 
 " nor will we pass upon him, nor condemn him, but by lawfull judgement of his peers, 
 " or by the law of the land. We will sell to no man, we will not deny or defer to 
 " any man either justice or right." 
 
 CHAPTER XXX. 
 
 Merchant Strangers coming into this Realm shall be well used. 
 [Same as 41st Chapter of John's Charter.] 
 
 CHAPTER XXXI. 
 
 Tenure of a Barony coming into the King's hands by Escheat. 
 [Same as 43rd Chapter of John's Charter.] 
 
 CHAPTER XXXII. 
 
 Lands shall not be Aliened to the Prejudice of the Lord's Service, [i. c. Lord of the Fee.} 
 
 CHAPTER XXXIII. 
 
 Patrons of Abbeys shall have tlie custody of them in time of Vacation. 
 [Same as 46th Chapter of John's Charter.] 
 
 CHAPTER XXXIV. 
 
 In what cases only a Woman shall have an Appeal of Death. 
 [Same as 51st Chapter of John's Charter.] 
 
 * See 39th and 40th Chapters of John's Charter. 
 C 
 
18 THE GREAT CHARTER OF HENRY III. 
 
 CHAPTER XXXV. 
 
 At what time shall be kept a County Court, a Sheriff's Term, and a Leet. 
 
 CHAPTER XXXVI. 
 
 No Land shall be given in Mortmain. 
 
 " It shall not be lawful from henceforth to any to give his lands to any religious 
 " house, and to take the same land again to hold of the same house. Nor shall it be 
 " lawful to any house of religion to take the lands of any, and to lease the same to 
 " him of whom he received it : if any from henceforth give his lands to any religious 
 " house, and thereupon be convict, the gift shall be utterly void, and the land shall 
 " accrue to the lord of the fee." 
 
 CHAPTER XXXVII. 
 
 A Subsidy in respect of this Charter and the Charter of the Forest, granted to the 
 
 King. 
 
 " Escuage from henceforth shall be taken like as it was wont to be in the time of 
 " King Henry our grandfather ; reserving to all archbishops, bishops, abbots, priors, 
 " templars, hospitalers, earls, barons, and all persons as well spiritual as temporal, 
 " all their free liberties and free customs, which they have had in time passed. And 
 " all these customs and liberties aforesaid, which we have granted to be holden within 
 " this our realm, as much as appertaineth to us and our heirs, we shall observe. 
 " And all men of this our realm, as well spiritual as temporal, (as much as in them 
 " is) shall observe the same against all persons in like wise. And for this our gift 
 u and grant of these liberties, and of other contained in our charter of liberties of 
 " our forest, the archbishops, bishops, abbots, priors, earls, barons, knights, free- 
 " holders, and other our subjects, have given unto us the fifteenth part of all their 
 " moveables. And we have granted unto them, for us and our heirs, that neither 
 " we nor our heirs shall procure or do any thing, whereby the liberties in this 
 " charter contained shall be infringed or broken. And if anything be procured by 
 " any person contrary to the premises, it shall be had of no force nor effect. These 
 " being witnesses, Lord B. Archbishop of Canterbury, E. Bishop of London, I. Bishop 
 " of Bath, P. of Winchester, H. of Lincoln, R. of Salisbury, W. of Rochester, W. of 
 " Worcester, J. of Ely, H. of Hereford, R. of Chichester, W. of Exeter, Bishops : 
 the Abbot of St. Edmonds, the Abbot of St. Albans, the Abbot of Bello, the Abbot 
 " of St. Augustines in Canterbury, the Abbot of Evesham, the Abbot of Westminster, 
 " the Abbot of Bourgh St. Peter, the Abbot of Reding, the Abbot of Abindon, the 
 " Abbot of Malmsbury, the Abbot of Winchcomb, the Abbot of Hyde, the Abbot of 
 " Certesy, the Abbot of Sherburn, the Abbot of Cerne, the Abbot of Abbotebir, the 
 " Abbot of Middleton, the Abbot of Seleby, the Abbot of Cirencester : H. de Burgh, 
 " Justice, H. Earl of Chester and Lincoln, W. Earl of Salisbury, W. Earl of Warren, 
 G. de Clare Earl of Gloucester and Hereford, W. de Ferrars Earl of Derby, W. 
 " de Mandeville Earl of Essex, H. de Bygod Earl of Norfolk, W. Earl of Albemarle, 
 " H. Earl of Hereford, J. Constable of Chester, R. de Ros, R. Fitzwalter, R. de 
 Vyponte, W. de Bruer, R. de Muntefichet, P. Fitzherbert, W. de Aubenie, J. 
 " Gresly, F. de Breus, J. de Monemue, J. Fitzallen, H. de Mortimer, W. de Beau- 
 " champ, W. de St. John, P. de Mauly, Brian de Lisle, Thomas de Multon, R. de 
 " Argenteyn, G. de Nevil, W. Mauduit, J. de Balun, and others." 
 
 We, ratifying and approving these gifts and grants aforesaid, confirm 
 and make strong all the same for us and our heirs perpetually ; and by 
 the tenor of these presents do renew the same, willing and granting for 
 us and our heirs, that this Charter, and all and singular its articles for 
 ever shall be stedfastly, firmly, and inviolably observed. Although some 
 articles in the same Charter contained yet hitherto peradventure have 
 not been kept, we will and, by authority royal, command from hence- 
 forth firmly they be observed. In witness whereof we have caused 
 
CONFIRMATIO CHART ARUM. 19 
 
 these our letters patent to be made. T. Edward, our Son, at West- 
 minster, the twelfth day of October, in the twenty-fifth year of our 
 reign. 
 
 Magna Charta, in this form, has been solemnly confirmed by our 
 kings and parliaments upwards of thirty times ; but in the twenty-fifth 
 year of Edward I. much more than a simple confirmation of it was 
 obtained for England. As has been already mentioned, the original 
 Charter of John forbad the levying of escuage save by consent of the 
 Great Council of the land ; and although those important provisions 
 were not repeated in Henry's Charter, it is certain that they were 
 respected. Henry's barons frequently refused him the subsidies which 
 his prodigality was always demanding. Neither he nor any of his 
 ministers seems ever to have claimed for the crown the prerogative of 
 taxing the landholders at discretion : but the sovereign's right of levying 
 money from his towns and cities under the name of tallages or prises, 
 was constantly exercised during Henry III.'s reign and during the 
 earlier portion of his son's. But, by the statute of Edward I. intituled 
 Conjlrmatio Chartarum, all private property was secured from royal 
 spoliation and placed under the safeguard of the great council of all the 
 realm. The material portions of that statute are as follows ; 
 
 CONFIRMATIO CHARTARUM. 
 
 ANNO VICESIMO QUINTO EDV. I. 
 
 CAP. V. 
 
 And for so much as divers people of our realm are in fear that the aids and tasks 
 which they have given to us beforetime, towards our wars and other business, of 
 their own grant and good will (howsoever they were made), might turn to a bondage 
 to them and their heirs because they might be at another time found in the rolls, 
 and likewise for the prises taken throughout the realm, in our name, by our 
 ministers ; we have granted for us and our heirs that we shall not draw such aids, 
 tasks, nor prises, into a custom for anything that hath been done heretofore, be it by 
 roll or any other precedent that may be founden. 
 
 CAP. VI. 
 
 Moreover, we have granted for us and our heirs, as well to archbishops, bishops, 
 abbots, priors, and other folk of holy church, as also to earls, barons, and to all the 
 commonalty of the land, that for no business from thenceforth we shall take such 
 manner of aids, tasks, nor prises, but by the common assent of all * the realm, and for 
 the common profit thereof, saving the ancient aids and prises due and accustomed. -f 
 
 Let us now pause and consider how far the great constitutional prin- 
 ciples above enumerated, are recognised or established in these Charters. 
 
 In the first place, they clearly recognise the authority of an Heredi- 
 tary Sovereign. The repeated expressions in them of the King granting 
 for himself and his heirs, are themselves sufficient to prove this. 
 Indeed, not only in England, but throughout Europe, during the middle 
 ages, the existence of a "permanent Suzerain, vested with large rights 
 
 * " Par commun assent de tut le roiaume." The version in our statute book omits 
 the important word " All." 
 
 C: 2 
 
20 THE ENGLISH MONARCHY HEREDITARY AND LIMITED. 
 
 " of a mixed personal and proprietary character over his vassals, though 
 " subject also to certain obligations towards them," was always presumed 
 as indispensably necessary for the existence of political society.* " The 
 " rights of the chief were always conceived as constituting a Status 
 " apart, and neither conferred originally by the grant, nor revocable at 
 " the pleasure of those over whom they were exercised. This view of 
 " the essential nature of political authority was a point in which all the 
 " three great elements of modern European society the Teutonic, the 
 " Roman,f and the Christian, all concurred, though each in a different 
 " way and with different modifications." Thus in England we find the 
 nation constantly striving to regulate and temper, by solemn compact 
 and laws, the power of its Royal chief, but never attempting, in early 
 times, to dispense with the existence of a Royal chief. Even when 
 the oppressiveness and proved perfidy of individual monarchs induced 
 the nation to take away practical power from them, and to choose an 
 executive board, who should rule in their name, such provisions, how- 
 ever necessary, were always considered and designed to be of a temporary 
 nature. Nor even when kings were solemnly deposed, as in the cases 
 of the second Edward and the second Richard, was kingship ever assailed. 
 A new Sovereign was instantly placed in the room of the deposed one, 
 in order that the nation might not be deprived for a moment of the 
 monarchical head, that was reckoned politically indispensable. 
 
 The peaceable and undisputed accession of Edward I., though he was 
 far distant from England at the time of the death of Henry III., 
 established not only that the crown was hereditary in the royal family, 
 but also that it was hereditary according to the principles of descent 
 which regulate a private inheritance. J 
 
 From what has been above stated, it also appears clearly that it is a 
 limited Sovereignty which our constitution thus recognises. Although 
 the government of our Anglo-Norman kings was, in fact, extremely 
 arbitrary, they never were supposed either by others, or by themselves, 
 to be absolute, irresponsible lords of the lives and properties of their 
 subjects, like the despots of the Eastern World. But, though by common 
 understanding the king was bound to consult his Great Council before 
 he made new laws or exacted fresh taxes, and though the very essence 
 of feudalism involved a reciprocity of duties between lord and vassal, 
 the checks on royal caprice and royal oppression were always vague, 
 and frequently ineffectual before the epoch of the Great Charter. From 
 that time forward the limitations of the royal prerogative were unmis- 
 
 * See Grote's History of Greece, vol. iii.,pp. 13, et seq. ; the reflections on the dis- 
 continuance of Kingship in Hellas, compared with its preservation in Medieeval 
 Europe, deserve an attentive perusal. 
 
 t /. E. t the Imperial Roman. The influence of Republican Rome, when her 
 history and literature were familiarised to Europe by the revival of classical studies, 
 was anything but Monarchical. 
 
 J The form of popular consent expressed at the Coronation was long considered 
 necessary to complete the royal title. The heir to the throne had an inchoate right 
 immediately on his predecessor's death, but his reign dated from his coronation. 
 Such was the case till Edward I.'s reign, which dated from the day (four days after 
 Henry III.'s death,) when the barons swore fealty to him in his absence, and his 
 peace was proclaimed. See JJallam's Notes to his Middle Ages, p. 301. 
 
ORIGIN OF PARLIAMENT. 21 
 
 takeable and undeniable, and " Sub lege Rex " became a sure constitu- 
 tional maxim, though forensic sycophants in after ages were sometimes 
 found who whispered its converse. 
 
 Next, let us trace the great principle of the sovereign of England 
 being bound to summon and consult a parliament of hereditary peers, 
 and of elected representatives of the Commons. 
 
 Among all the nations of the Gothic stock, whether of its Scandi- 
 navian or of its Teutonic branch, and in all the kingdoms founded by 
 them out of conquered Roman provinces, councils or assemblies of 
 some form existed, whose consent the ruling chief was bound to obtain, 
 in order to legalise all important measures of State. Thus the Anglo- 
 Saxons had their Witanegemotes, with whose sanction new laws were 
 made, and new taxes imposed. The Prelates and the Thanes attended 
 these assemblies ; and the inferior class, the Ceorls, though not 
 directly represented there, yet were not without protectors and advo- 
 cates ; inasmuch as certain of the magistrates whom the men of every 
 borough and township regularly elected from among themselves for 
 the purpose of local self-government, were present at the Witan for 
 the purpose of obtaining redress for any wrong which might have been 
 committed, and for the redress of which the ordinary tribunals were 
 inadequate. When once present at the Witan, though ostensibly only 
 for the purpose of remedial justice, the Ceorl magistrates must have 
 had some influence in other matters also : inasmuch as the cheerful 
 co-operation of the bulk of the community in carrying any particular 
 measure into effect, never can be thought immaterial even by those 
 who have the power of enforcing sullen obedience. The Anglo-Saxon 
 polity was swept away by the conquering Normans ; but the recollec- 
 tion of this virtual though indirect system of representation, must have 
 survived among the bulk of the population ; and may have greatly 
 facilitated the adoption and insured the good working of the subsequent 
 parliamentary representation of the Commons. 
 
 Of the polity of the Normans, prior to their coming to this country, 
 it is unhappily impossible to gain any minute knowledge, for the 
 " Records of Normandy have perished : they were destroyed, it is 
 said by Richelieu ; and the archives of Rouen afford no information 
 whatever which can elucidate the ancient constitution of the Duchy, 
 anterior to the fourteenth century."* Thus much is, however, certain, 
 that there was a council of the Norman barons which the Dukes were 
 obliged on all important occasions to summon and consult. It was not 
 likely that they by whose help William won the crown of this country, 
 and to whom he parcelled out its lands as rewards, would consent to 
 forego in their new abodes the political rights which they had enjoyed 
 in their old homes across the Channel. The Anglo-Norman king 
 summoned and consulted his great council, as he had done while merely 
 a Norman duke. All who held land by military tenure immediately 
 of the Crown, had a right to attend, and were expected to attend the 
 king's court on the solemn days of council, and all these were originally 
 styled the King's Barons. Besides these, the prelates, and the heads of 
 
 * Talgrave, vol. i., p. 126. 
 
22 ORIGIN OF THE HOUSE OF LORDS. 
 
 the chief abbeys and priories formed here, as in every country of 
 Christendom, an essential part of the Great Council. No other 
 persons of any class whatever had the right to appear there either in 
 person, or by any sort of representative. 
 
 Many among the large number of the tenants-in-chief, by reason of 
 their comparative poverty, the distance of their estates from the cities 
 where the Council was usually convened, and other causes, soon ceased 
 to attend or to be expected to attend as regularly as the more powerful 
 and wealthy nobles. These last were soon termed the Greater Barons, 
 and ultimately, the titles of " Peer " and " Baron," which had first been 
 common to all the King's immediate tenants, were, in speaking of the 
 kingdom generally, exclusively applied to the heads of a few great 
 houses, who, largely endowed with lands, and constant members of 
 the Great Council, were clearly distinguishable in rank and in cir- 
 cumstances from the mass of the inferior tenants-in-chief. Traces 
 of the distinction appear earlier than John's reign, but in that king's 
 Great Charter the line is drawn decisively and broadly between these 
 two bodies, which we may safely call, in modern phraseology, the 
 Nobility and the Gentry of the Realm. By the 14th chapter of John's 
 Charter, the king binds himself in order to constitute the General 
 Council for the grant of pecuniary aids, that it shall be summoned 
 thus "We shall cause the Archbishops, Bishops, Abbots, Earls and 
 greater Barons to be separately summoned by our letters. And we 
 shall cause our sheriffs and bailiffs to summon generally all others who 
 hold of us in chief." 
 
 In the earlier part of this clause we see, indisputably, the original of 
 the upper house of our modern Parliament. And as it was thus originally 
 composed of powerful landowners, the English Peerage naturally became 
 an Hereditary Peerage, without any express enactment to that effect. 
 For, the power of devising real estates did not exist for many ages after 
 the grant of the Great Charter, and although alienation with the con- 
 sent of the lord and upon paying him a fine, was permitted by law, the 
 entire transfer of large estates by such means could seldom or never 
 have occurred, for the simple and obvious reason, that there were no 
 wealthy capitalists to come forward and buy the whole lands of a mighty 
 but impoverished baron at a single bargain. As therefore the estates 
 of the great barons descended generally from heir to heir, and as each 
 heir on coming into possession had the same right as his predecessor to 
 be treated as a great baron of the realm, the idea of hereditary descent 
 became gradually associated with the status of a peer. And this theory 
 of nobility by blood at last prevailed so far, that when our kings began 
 to summon by writ to meet and consult among the barons, many who 
 had no baronial possessions, these also were ultimately, though not 
 without much discrepancy of opinion and irregularity of practice, held 
 to have received an hereditary peerage. And the same attribute of 
 hereditary transmissibility applied also to peerage created by patent. 
 How far the latter part of the clause shows the germ of our House of Com- 
 mons, requires more consideration. It depends, mainly, on the opinion we 
 form respecting the antiquity of the system of the mass of these inferior 
 land-holders in each county electing some of their number to represent 
 
THE HOUSE OF COMMONS. KNIGHTS OP THE SHIRE. 23 
 
 them in the Great Council. Even before the reign of John, elections 
 of knights of the shire, for purposes connected with the administration of 
 government, can he clearly traced in our records. And during his reign, 
 and in the earlier part of that of Henry III,, there are repeated instances 
 of such representation for the purpose of presenting grievances, and of as- 
 sessing on each individual his fair proportion of a voted subsidy. It seems, 
 therefore, natural and reasonable to suppose that the Great Charter, in 
 ordering the inferior tenants in chief to be summoned generally by the 
 sheriffs, (the presiding officers of the county courts at which the other 
 analogous elections took place,) contemplated the delegation of some 
 individuals of that body to the Great Council to sit in the name of the 
 rest. We find thus the germ of county representation. And although 
 these important provisions were omitted in Henry's Charters, it was 
 under the pretext of reserving the details for maturer deliberation, and 
 the existence of the principle which they embody was clearly taken for 
 granted. In 1 245 we find Henry, in the very terms of the Great Charter 
 of John, summoning the great barons singly, and the other tenants in 
 chief generally, by writs to the sheriffs of each county. To a Great 
 Council summoned in 1246, the title of Parliament is for the first time 
 given by the old chronicler, which had previously been applied to any 
 kind of conference, but thenceforth in England became restricted to the 
 Great Council of the nation. In 1254 Henry directs a Parliament to 
 be convened at London, to which the sheriff of each county is to cause 
 to be elected in the county court two good and discreet knights of the 
 shire, whom the men of the shire shall have chosen for this purpose, in 
 the stead of all and each of them, to consider along with the knights of 
 other counties what aid they will grant the king. 
 
 Finally, in 1265 in the celebrated Parliament summoned by De Mont- 
 fort in Henry's name, at which the representation of the boroughs was 
 created, that of the counties was undoubtedly placed or confirmed on its 
 permanent basis, as the writs are still extant by which each sheriff is 
 directed to return two lawful, good, and discreet knights for his shire. 
 
 The date cannot be exactly given of the important feature in county 
 representation, of all the freeholders of the county voting in the election 
 of knights of the shire, and not merely those who held their land 
 directly of the Crown by military tenure. It is obvious that this 
 extension of the franchise arose from the circumstance of the knights 
 being elected at the county courts, at which all the freeholders of the 
 shire did suit and service. And although opinions vary as to the 
 precise time and mode in which it was effected, it is clear that at a very 
 early period, certainly in the first half of Henry the Third's reign, the 
 county members of England were elected by all the freeholders, without 
 regard to their holding by military or by socage tenure, and without 
 reference to their being or not being immediate tenants of the Crown. 
 Subsequently, a statute of Henry VI. limited the county franchise to 
 such freeholders only as possessed free tenements of the clear annual 
 value of forty shillings. 
 
 For the commencement of the other branch of our House of 
 Commons, we must take a date subsequent to the Great Charter of 
 
24 BOROUGH MEMBERS. THE TWO HOUSES. 
 
 John. They who obtained that Charter, had designed to give the 
 citizens and burghers of England the same protection from royal 
 rapacity which they exacted for the land-holders. This is evident from 
 the "Articuli Magnse Cartse,"* the rough draft of the barons' stipu- 
 lations laid before King John at Runnymede, and to which he assented 
 under seal. In the 32nd of these articles, after the provision against 
 the levy of scutages or aids, save by consent of the general council of 
 the realm, were added the important words, " And in like manner be it 
 " done respecting the tallages and aids of and from the city of London 
 " and other cities." Through some unexplained neglect or manoeuvre, 
 these important words were omitted when the Charter was formally 
 drawn up : and the cities and towns were left exposed to the exactions 
 of their feudal oppressors, without any protection in the national council. 
 Simon de Montfort was the first statesman who perceived and fully 
 appreciated the growing importance of the commercial middle classes 
 in England. The instances sometimes asserted of borough representa- 
 tion before his time, are both scanty and spurious ; but to the 
 Parliament summoned by him in Henry's name, after the battle of 
 Lewes, 1264, two burgesses were returned for every burgh in each 
 county, the writs for which are still preserved. De Montfort soon 
 perished in the vicissitude of civil war ; but his reform measure perished 
 not with him. The victorious royalists felt the policy of enfranchising 
 the trading community of the land. Parliaments continued to be sum- 
 moned on De Montfort' s plan, and when at length the Confirmatio 
 Chartarum, in the 25th year of Edward I., by the enactments which 
 have above been quoted, made the consent of Parliament necessary to 
 the levy of talliages, of subsidies, and, in effect, of all taxes, the 
 presence of the burgesses in the Parliaments of England became thence- 
 forward essential and indispensable. 
 
 The division of our Parliament into two Houses is foreshadowed in 
 the distinction drawn by John's Charter between the Great Barons and 
 the inferior tenants in chief. Providentially for England the representa- 
 tives of these last, the knights of the shire, coalesced with the borough 
 representatives ; and though some time elapsed before any certain 
 system was maintained, they became the joint representatives of the 
 Commons of England, leaving the Great Barons to form together with 
 the prelates a separate senate and a separate order. The benefits of 
 this to England have been incalculable. She has had the advantage of 
 a nobility, and has not been cursed with a noblesse. One of the proud 
 deficiencies of our language is, that the term " Roturier " is untrans- 
 lateable into English. As Hallam truly and eloquently remarks, " from 
 < the reign of Henry III. at least, the legal equality of all ranks [of 
 '* freemen] below the peerage was to every essential purpose as com- 
 ' plete as at present. * * What is most particular, is that the 
 ' peerage itself confers no privilege, except on its actual possessor. 
 e The sons of peers, as we well know, are commoners, and totally 
 1 destitute of any legal right beyond a barren pre-eminence. There is 
 ( no part of our constitution so admirable as this equality of civil 
 
 * See them at length in " Blackstone on the Charter," pp. 1, et seq. 
 
HABEAS CORPUS. TRIAL BY JURY. 25 
 
 " rights, this isonomia, which the philosophers of ancient Greece only 
 " hoped to find in democratical government. From the beginning our 
 " law has been no respecter of persons. It screens not the gentleman 
 " of ancient lineage from the judgment of an ordinary jury, nor from 
 " ignominious punishment. It confers not, it never did confer, those 
 " unjust immunities from public burthens which the superior orders 
 " arrogated to themselves upon the Continent. Thus while the privi- 
 " leges of our peers, as hereditary legislators of a free people, are 
 " incomparably more valuable and dignified in their nature, they are 
 " far less invidious in their exercise than those of any other nobility in 
 " Europe. It is, I am firmly persuaded, to this peculiarly democratical 
 " character of the English monarchy that we are indebted for its long 
 " permanence, its regular improvement, and its present vigour. It is 
 " a singular, a providential circumstance that in an age when the 
 " gradual march of civilisation and commerce was so little foreseen, our 
 " ancestors, deviating from the usages of neighbouring countries, should, 
 " as if deliberately, have guarded against that expansive force which in 
 " bursting through obstacles improvidently opposed, has scattered 
 " havoc over Europe." 
 
 The last great principles of our Constitution relate to the Adminis- 
 tration of Justice. One maxim has been stated in the very words of 
 the Great Charter : and the solemn declaration and covenant of the 
 sovereign, as chief magistrate and supreme lord of all judicial pro- 
 ceedings, that justice shall not be sold or delayed, requires no comment. 
 Though, our legal reformers would do well to consider how far the 
 practice of making suitors pay for judicial writs, and exacting court-fees 
 on trials is in accordance with the great constitutional canon; and 
 though " the law's delay " continues as in Shakspeare's time to form 
 one of the curses of humanity to an extent never contemplated at 
 Runnymede. The security from arbitrary imprisonment, and the other 
 great constitutional principle, that of Trial by Jury, claim our most 
 earnest attention, both on account of their universal practical im- 
 portance, and by reason of the tendency now shown in many quarters 
 to disparage and discard that long-venerated system of trial. 
 
 The great words of the Great Charter worth all the classics to 
 Lord Chatham's mind which have protected for six centuries, and 
 still protect the personal liberty and property of all freemen, have 
 been already quoted, but never can be too often repeated. "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 other- 
 " wise destroyed ; nor will we pass upon him, nor condemn 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 defer to any man justice or 
 " right." 
 
 " It is obvious," says Hallam, " that these words, interpreted by 
 " any honest court of law, convey an ample security for the two main 
 " rights of civil society. From the sera, therefore, of King John's 
 " Charter it must have been a clear principle in 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 
 
26 TEIAL BY JURY; NOT ANGLO-SAXON. 
 
 " of this clause, or found it already in their register, it became from 
 " that sera the right. of every subject to demand it. That writ, ren- 
 " dered 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." 
 
 With respect to Trial by Jury, the words of the Charter, " by the 
 lawful judgment of his peers," {per legale yudicium parium suorum,} 
 have generally been understood to refer to it, and to establish this 
 mode of trial as the constitutional birthright of every Englishman when 
 prosecuted in the name of the sovereign on any charge of a criminal 
 nature. Some writers, however, of eminent learning, have treated this 
 supposition as a mere vulgar error ; and deny that the judicium 
 parium has any reference whatever to trial by Jury. The subject well 
 deserves investigation ; and it certainly involves not a mere point of 
 legal archaeology or of forensic practice, but a constitutional question of 
 the most solemn order. Were any authority wanting to justify the 
 treating this great judicial question as a constitutional one, I would 
 refer to the greatest of all philosophical and political writers, to 
 
 II maestro di color che sanno, 
 
 who tells us that every Constitution is divisible into three branches : 
 1st, the Deliberative, 2ndly, the Executive, and 3rdly, the Judicial.* 
 Trial by Jury, in the literal sense in which we usually understand it, 
 that is to say, trial by twelve men sworn to return a verdict determining 
 the guilt or innocence of the accused party, was certainly not generally 
 introduced into England at the epoch of the Great Charter. It is to be 
 hoped that few educated men at the present day, except cartoon painters, 
 believe in the silly story of its having been an invention of the great 
 Alfred. The Anglo-Saxon system of criminal judicature had indeed the 
 great principles of trying men publicly before a popular tribunal, and 
 not permitting their fate to be dependent on the judgment or caprice of 
 any officer of the crown. These principles are also essential attributes 
 of Trial by Jury, and the introduction of that system was without doubt 
 facilitated by its being thus congenial to the old feelings and customs of 
 the mass of the population. But an Anglo-Saxon criminal trial took 
 place, not before twelve sworn men, or any other definite number, but in 
 presence of all the assembled members of the hundred or the county 
 court, the latter being the tribunal before which most criminal charges 
 were determined. All the landowners of the county, under the presi- 
 dency of the sheriff and bishop, formed this court. They were its "Sec- 
 tatores," or suitors. They all took part, or had a right to take part, in a 
 criminal trial, and they all looked on to see whether the stipulated proof 
 of guilt or innocence was given. I say they looked on, for that term 
 implies more accurately the functions of the county court suitors in a 
 
 * Tpia popia T&V woAtreioij/ Traocoi/. eV /J.ev TO jSouAeudViej/oj/ Trepl ru>v K.6ivwv. trepoV 
 TO ircp} ras #px as> rpiT6v 5e n TO 5i'/caov. Aristotle, Polit. iv., 11,1. 
 
NATURE OF A SAXON CRIMINAL TRIAL. '27 
 
 Saxon criminal trial, than any word which involves the idea of balancing 
 testimony, or of argning from apparent fact to inferential fact. This 
 arose from the system of the Saxon jurisprudence making a trial, as 
 Palgrave truly remarks,* " rather of the nature of an arithmetical 
 " calculation, or a chemical experiment, than what we now understand 
 " by the trial of a cause. A certain form was gone through, and 
 " according to its result, which was always palpable and decisive one 
 " way or the other, the accused person was found guilty or acquitted." 
 This is in no degree an exaggerated account of the Anglo-Saxon system 
 of trying offenders, either by the production of compurgators, or by the 
 ordeal. In the first of these modes, the accused party was required to 
 produce neighbours to swear to their belief in his innocence ; and the 
 effect of such neighbours' oaths was estimated not by the means of 
 knowledge possessed by the deponents, or by their characters, or even 
 by their number, but by their " worth " in the Anglo-Saxon scale of 
 persons ; according to which an eorl's oath was equal to the oaths of 
 six ceorls, and so on. If the accused party produced the requisite 
 amount of oath (which was in every case rigorously defined by a 
 curiously minute penal tariff), he was set free. If the aggregate 
 value of the oaths of his compurgators fell below the prescribed sum, 
 he was pronounced guilty. If the accused person put himself upon the 
 trial by ordeal, the weight of the hot iron which he was to bear, or the 
 depth to which he was to plunge his arm into the hot water, was scru- 
 pulously preappointed by the law. The assembly looked on. In trial 
 by compurgation, they added up the amount of the oaths ; in trial by 
 ordeal, they watched the effect of the hot iron or hot water upon the 
 culprit's skin, and that was all which they had to do.t For such 
 functions the tumultuary assembly of the county court was fit enough ; 
 but it would have been wholly inadequate, when compurgation and 
 ordeal were abolished, to assume the high deliberative duties of inquiring 
 into and comparing evidence, for which, happily, the Trial by Jury has 
 proved so efficient. 
 
 For this great institution we are indebted, not so much to our Saxon as 
 to our Norman ancestors ; and this alone ought to make us regard the 
 Norman conquest of this island as an ultimate blessing to its inhabitants. 
 In Normandy (besides Trial by Battle, in which the accused and the 
 accuser, or in some few cases their champions, settled their differences 
 in mortal combat,) criminal charges were tried as follows : An inquest 
 of twenty-four " good and lawful men" was summoned from the neigh- 
 bourhood where the murder or the theft had been committed. These 
 were the " Jurati," or " Juratores," so called from the oath they took to 
 speak the truth. The officer is directed by the Norman law to select 
 " those who are believed to be best informed of the truth of the matter, 
 
 * See " Palgrave's History of the English Commonwealth." 
 
 t See Palgrave ul supra. It must not, however, be supposed that in cases of 
 flagrant guilt the offender was allowed the chance of escaping through the perjury 
 of compurgators or the jugglery which was frequent in the ordeal. On the contrary, 
 the slayer who was found near the bleeding corse, or the thief who was taken on 
 fresh pursuit in possession of the booty, Jwnd-habcnd and back-barcnd, was strung 
 up without ceremony to the nearest bough. 
 
28 NORMAN TRIAL BY JURY. 
 
 (< and how it happened." None were to be adduced who were known 
 friends or declared enemies of either party. Before the culprit was 
 put upon his trial, a preliminary inquest was taken by four knights, who 
 were questioned concerning their belief of his guilt ; and in their 
 presence the officer afterwards interrogated the twenty-four jurors, not 
 in one body, but separately from each other. They were then assembled 
 and confronted with the culprit, who could challenge any one for lawful 
 cause, and if the challenge was allowed, the testimony of that juror was 
 rejected. The presiding officer, or judge, then " recorded " the verdict 
 of the jurors, in which twenty at least were required to concur. 
 
 We learn this from the " Grand Coustumier," a description of the law 
 of Normandy, written nearly about the time of John, and a little before 
 the separation of the Duchy from the English crown. The pretext, 
 sometimes set up, that it represents Anglo-Saxon laws imported into 
 Normandy, and not laws of Norman original, is utterly unfounded and 
 absurd. Decisive proof indeed of the Continental origin of our Trial 
 by Jury may be found in the Capitularies of the early Prankish kings, 
 which we know Duke Rollo to have largely used in regulating the 
 institutions of his new Duchy. Thus, the Capitularies direct, that 
 for the decision of a criminal charge, Sworn Witnesses (i. e. Jurors) 
 shall be summoned from the Visne ; that they be twelve in number, 
 not to be challenged without lawful cause, and to be kept without meat 
 or drink till they give their verdict. 
 
 The introduction into England of this Jury trial, as well as of the 
 trial by battle, was naturally favoured by the Norman Judges who 
 presided over the Royal Courts after the Conquest: and the king's 
 Itinerant Courts, in which there was no assemblage of local members, soon 
 assumed the functions of trying many of the cases which had previously 
 been tried at the County Courts. The Normans generally abolished trial 
 by Compurgators, in criminal cases ; and though the trial by Ordeal long 
 continued in force, men at length began to regard it in its true light 
 of an impious absurdity, and of a not unfrequent engine of fraud. 
 Henry II., by the laws in which he instituted the trial by twelve 
 sworn knights, in certain civil causes, where real property was the 
 subject of dispute, familiarised men's minds more and more with the 
 theory and practice of Jury trial; and the more it was known, the 
 more it was valued. Repeated instances can be traced, in the reigns of 
 his sons, of accused persons being tried by Juries on criminal charges, 
 for which mode of trial they paid a sum of money to the king, evidently 
 regarding it as a valuable privilege. At length, in the year 1215, the 
 year before the signing of Magna Charta, the Council of Lateran pro- 
 hibited the further continuance of trial by ordeal throughout Christen- 
 dom, and the adoption of trial by Jury became unavoidably general in 
 England, in order to dispose of the numerous class of cases where the 
 charge was preferred, not by an injured individual against the culprit in 
 the form of an Appeal, but by the Great Inquest of the County (our 
 modern Grand Jury) in the form of a presentment. For, of course, it 
 was only where there was an accusing appellant, that the trial by 
 battle was possible. Still, there was for a long time no mode of com- 
 pelling a prisoner to put himself on the country, i. e. to commit the 
 
TRIAL BY JURY ORIGINALLY TRIAL BY WITNESSES. 29 
 
 question of his guilt or innocence to twelve sworn men, summoned 
 from the neighbourhood. Edward I.'s law, inflicting the " Peine forte 
 et dure" on prisoners who refused to plead, was passed to obviate this 
 difficulty; which was not, however, completely got rid of till the 
 reign of George III. 
 
 Trial by Jury was originally, both in Normandy and here, an appeal 
 to the knowledge of the country. The Jurors were selected so as to 
 insure the attendance of those who knew most of the transaction. 
 They gave a verdict from their own knowledge of the case, and not from 
 hearing the testimony of others. Gradually, however, a change took 
 place in this respect. At first, documentary evidence, such as deeds, 
 charters, &c., throwing light on the matter in dispute, were permitted 
 to be laid before the Jurors. The next improvement was to introduce 
 the viva voce testimony of persons, other than the jurors, who could 
 give any information as to the true circumstances of the case. By 
 degrees this became the evidence, on which, and not on any private 
 knowledge of their own, jurors were sworn, as at present, to give their 
 verdict. This change was slowly worked out in civil or criminal pro- 
 ceedings ; and the forms of our law at this moment bear abundant 
 traces of the original function of a jury having been that of witnesses.* 
 
 To return to Magna Charta ; some of those who deny the applica- 
 bility of its 29th chapter to Trial by Jury, understand the expression 
 in it respecting trial by one's peers, to refer to the old County Court 
 criminal judicature, in which a freeman certainly was tried before, if 
 
 I have not discussed here either the subject of Grand Juries, or of Trial by Jury 
 in civil cases ; respecting both of which ample information will be found in 
 Palgrave and Reeves. 
 
 A most valuable volume by Mr. Hallam has just appeared, containing "Supple- 
 mental Notes'" to his u History of the Middle Ages." It contains a long and learned 
 note on the subject of trial by jury, in which Mr. Hallam fully ratifies Palgrave' s views 
 of the criminal jurisprudence of the Anglo-Saxons. Both these great writers insist 
 strongly on the importance of the distinction between the original jurors, who them- 
 selves were witnesses, and the modern jurors who form their opinion on the evidence 
 of others. It is singular that Mr. Hallam should say that Sir Francis Palgrave " has 
 presented trial by jury in what may be called a new light," by pointing out how it 
 was originally a mere examination of witnesses. That fact is one with which every 
 practising lawyer must always have been familiar, through its being forced upon his 
 notice by our law of Venue, and the classification of actions into local and transitory. 
 
 The authorities collected in Mr. Hallam's note show that the present mode of pro- 
 cedure before juries, by their hearing the witnesses and counsel of both parties in 
 open court, is at least as old as the times of the Lancastrian kings. So that even those 
 who consider that, until this essential change in the character of the jury from their 
 original function of mere witnesses took place, our actual trial by jury cannot be 
 said to have existed, must concede to it an antiquity of four centuries ; while the 
 germ of it, as we perceive, was clearly coeval with the germs of our other first 
 national institutions. 
 
 Mr. HallanVs note concludes with an eulogium and a wish respecting our grand 
 principle of trial of facts by the country, in which I earnestly concur. " From this 
 " principle (except as to that preposterous relic of barbarism, the requirement of 
 " unanimity) may we never swerve may we never be compelled, or wish, to swerve 
 " by a contempt of their oaths in jurors, and a disregard of the just limits of their 
 "trust.". 
 
30 MEANING OF "JUDGMENT OF PEERS " IN MAGNA CHARTA. 
 
 not by his brother freemen. But a decisive answer to this hypothesis 
 is found in the fact that Magna Charta had just taken away, by a 
 preceding chapter, the right of the Sheriff to try pleas of the crown 
 at all, and had thus put an end to the criminal judicature of 
 the County Court altogether. It is therefore absurd to construe the 
 29th chapter as solemnly ordaining a mode of trial which the 26th 
 chapter had just solemnly abolished. The other hypothesis is, that 
 the Great Charter, in speaking of trial by peers, had in view solely the 
 Great Barons, who, as members and peers of the great Court of the 
 king, had a right to be tried there by their peers. Undoubtedly, this 
 clause gives a peer of the land an indisputable right to a trial in the 
 House of Lords, but I am led to reject the interpretation which would 
 restrict the operation of the clause to the peerage only, by a considera- 
 tion of the circumstances and documents connected with the passing 
 of the Great Charter, and which are collected by Blackstone in the 
 work so often referred to. 
 
 King John, about a month before the Congress at Runnymede, had 
 made a fruitless attempt to detach the great barons from the formid- 
 able national rising against him, by offering to them and their imme- 
 diate followers, the privileges which the 35th chapter of his Great 
 Charter afterwards assured to every freeman of the realm. John's 
 letters of proffered compromise are still in existence,* and in them he 
 writes, " Be it known that we have granted to our barons who are 
 " against us, that we will neither take nor disseise them or their men, 
 nor " will we pass upon them by force or by arms, except by the law of 
 " our realm, or by the Judgment of their Peers in our Court," &c. 
 
 The words " in our Court," here clearly limit the privilege of "Trial 
 by Peers" to the barons, who alone were members of the King's 
 Court, or could have their peers there to try them. Had these 
 words been repeated in the analogous clause in the Great Charter, 
 the interpretation which we are now considering, would have 
 appeared irresistibly correct. But the phraseology of Magna Charta 
 is widely different. Magna Charta says, " NULLUS LIBER HOMO 
 " dissaisietur, &c., nisi per legale judicium parium suorum." It is 
 evident that the Barons, when they rejected the insidious offer of John, 
 and refused to make their reform a mere class intrigue, instead of a 
 great national movement, took care so to alter the terms of this great 
 stipulation as to make it embrace all the free community. t I 
 
 * See Blackstone. 
 
 f The recollection of this offer of John's and of the Barons' magnanimity in 
 rejecting it, makes us feel, with redoubled force, the noble eulogium of Lord 
 Chatham : " It is to your ancestors, my lords, it is to the English barons that we 
 " are indebted for the laws and constitution we possess. Their virtues were rude 
 " and uncultivated, but they were great and sincere. Their understandings were as 
 " little polished as their manners, but they had hearts to distinguish right from 
 " wrong ; they had heads to distinguish truth from falsehood ; they understood the 
 " rights of humanity, and they had spirit to maintain them. 
 
 " My lords, I think that history has not done justice to their conduct, when 
 " they obtained from their sovereign that great acknowledgment of national rights 
 " contained in Magna Charta ; they did not confine it to themselves alone, but 
 " delivered it as a common blessing to the whole people. They did not say, These 
 
VALUE OF TKTAL BY JUlfY. 31 
 
 cannot but believe that the framcrs of Magna Charta did intend to 
 give a solemn sanction to the Trial by Jury, which had been for years 
 gradually becoming prevalent, which had just been rendered more 
 generally necessary and desirable through the abolition of the Ordeal, 
 and to the merits of which I cannot suppose those illustrious statesmen 
 to hare been blind. The expression, " Trial by Peers/' as applied to 
 Trial by Jury, though it may not have enough technical accuracy to 
 satisfy a mere legal antiquary, is, and was, at the time, sufficiently 
 appropriate to justify its being so understood ; and so it certainly has 
 been generally understood by England's jurists, judges, statesmen, and 
 historians, for centuries. 
 
 The institution of Trial by Jury into this country, has not only given 
 us the fairest system of trial ever known, but it has also for centuries been 
 of incalculable national advantage as an instrument of national education. 
 I gladly quote on this point the no less true than eloquent words of the 
 great and good Dr. Arnold : "The effect of any particular arrange- 
 t( ment of the judicial power, is seen directly in the greater or less 
 " purity with which Justice is administered ; but there is a farther 
 " effect, and one of the highest importance, in its furnishing to a 
 " greater or less portion of the nation one of the best means of moral 
 '* and intellectual culture, the opportunity, namely, of exercising the 
 " functions of a judge. I mean that, to accustom a number of persons 
 " to the intellectual exercise of attending to, and weighing and com- 
 " paring evidence, and to the moral exercise of being placed in a high 
 " and responsible situation, invested with one of God's own attributes 
 ' ' that of Judgment ; and having to determine with authority, between 
 " truth and falsehood, right and wrong is to furnish them with very 
 " high means of moral and intellectual culture ; in other words, it is 
 " providing them with one of the highest kinds of education." * 
 
 The great constitutional enactments of Magna Charta have, from the 
 very earliest times, been regarded in that light, and treated not as 
 temporary regulations, but as the fundamental institutions of our 
 government and laws. Their confirmation was repeatedly exacted from 
 the reigning Sovereign by our Parliaments; not because the Great Charter 
 was supposed to become invalid without such ratification, but in order 
 to impress more solemnly on impatient princes and profligate states- 
 men their duty of respecting the great constitutional ordinances of the 
 realm. The most awful rites of religion were called in aid by the 
 English clergy (to whom, as Hallam remarks, we are much indebted 
 for their zeal in behalf of liberty during the thirteenth century), to bind 
 the slippery consciences of John's son, and grandson, and to awe them 
 
 " are the rights of the great barons, or these are the rights of the great prelates : 
 " No, my lords ; they said, in the simple Latin of the times, nullus liber homo, and 
 " provided as carefully for the meanest subject as for the greatest. These are 
 " uncouth words, and sound but poorly in the ears of scholars ; neither are they 
 " addressed to the criticism of scholars, but the hearts of free men. These three 
 " words, nullus liber Jtomo, have a meaning which interests us all ; they deserve to 
 " be remembered they deserve to be inculcated in our minds they are worth all 
 " the classics." 
 
 * " Arnold's Lectures on Modern History," Lect. I. 
 
32 GREAT CHARTER A FUNDAMENTAL CONSTITUTIONAL LAW. 
 
 by the terrors of excommunication from breaking the great compact 
 between the crown and the people. The most earnest efforts were also 
 employed to make the Great Charter familiarly known throughout the 
 land by all, as tne common birthright of all, and the most stringent 
 measures of law were devised to insure the prompt punishment of any 
 
 who should dare to violate it. To quote an instance or two of this : 
 
 by the Confirmatio Chartarum, 25 Ed. I. (part of which has already 
 been cited), it was ordained that 
 
 " The Charters of Liberties and of the Forest should be kept in every parish ; and 
 " that they should be sent under the king's seal as well to the justices of the Forest 
 " as to others, to all sheriffs and other officers, and to all the cities in the realm, 
 " accompanied by a writ commanding them to publish the said Charters, and declare 
 " to the people that the king had confirmed them in all points. All justices, sheriffs, 
 es mayors, and other ministers were directed to allow them when pleaded before 
 " them ; and any judgment contrary thereto was to be null and void. The Charters 
 " were to be sent under the king's seal to all cathedral churches throughout the 
 " realm, there to remain, and to be read to the people twice a-year. It was ordained 
 " that all archbishops and bishops should pronounce sentence of excommunication 
 " against those who, by word, deed, or counsel, did contrary to the aforesaid 
 Charters." 
 
 By the " Articuli super Cartas" a statute passed in the 28th 
 Ed. I., the Charters are ordered to be read by the sheriffs four 
 times a year, before the people of the shire in open County Court. 
 And the statute further ordains, that for the punishing of offenders 
 against the Charters, 
 
 " There shall be chosen, in every shire court, by the commonalty of the same 
 " shire, three substantial men, knights, or other lawful, wise, and well disposed 
 " persons, which should be justices sworn and assigned by the king's letters patent 
 " under the great seal, to hear and determine without any other writ, but only their 
 " commission, such plaints as shall be made upon all those that commit or offend 
 " against any point contained in the aforesaid Charters, in the shires where they be 
 " assigned, as well within franchises as without, and as well for the king's officers 
 " out of their places as for others ; and to hear the plaints from day to day without 
 " any delay, and to determine them, without allowing the delays which be allowed 
 " by the common law. And the same knights shall have power to punish all such 
 " as shall be attainted of any trespass done contrary to any point of the aforesaid 
 " Charters where no remedy was before by the common law, as before is said, by 
 " imprisonment, or by ransom, or by amerciament, according to the trespass." 
 
 A volume, precious to Englishmen for the merits both of its subject 
 and of its authors, might easily be collected from the panegyrists of 
 Magna Charta. I have already quoted Lord Chatham, and I will cite 
 here the words of only one statesman more, whom I select on account 
 of his eminence as an historian, and as a philosophical and political 
 inquirer. His eloquent observations are also the more valuable for 
 citation here, because they forcibly point out the existence in our con- 
 stitution of that law of progress and development, the operation of 
 which it is one of the principal objects of these pages to illustrate. Sir 
 James Mackintosh says of Magna Charta 
 
 " It was a peculiar advantage that the consequences of its principles 
 " were, if we may so speak, only discovered gradually and slowly. It 
 " gave out on each occasion only as much of the spirit of liberty and 
 
MACKINTOSH'S EULOGIUM ON THE GREAT CHARTER. 33 
 
 " reformation as the circumstances of succeeding generations required, 
 " and as their character would safely bear. For almost five centuries 
 " it was appealed to as the decisive authority on behalf of the people, 
 " though commonly so far only as the necessities of each case demanded. 
 " Its effect in these contests was not altogether unlike the grand pro- 
 " cess by which nature employs snows and frosts to cover her delicate 
 " germs, and to hinder them from rising above the earth till the atmo- 
 " sphere has acquired the mild and equal temperature which insures 
 " them against blights. On the English nation, undoubtedly, the 
 " Charter has contributed to bestow the union of establishment with 
 " improvement. To all mankind it set the first example of the pro- 
 " gress of a great people for centuries, in blending their tumultuary de- 
 " mocracy and haughty nobility with a fluctuating and vaguely limited 
 " monarchy, so as at length to form from these discordant materials the 
 " only form of free government which experience had shown to be re- 
 " concilable with widely extended dominions. Whoever in any future 
 " age or yet unborn nation may admire the felicity of the expedient 
 " which converted the power of taxation into the shield of liberty, by 
 " which discretionary and secret imprisonment was rendered imprac- 
 " ticable, and portions of the people were trained to exercise a larger 
 " share of judicial power than ever was allotted to them in any other 
 " civilised state, in such a manner as to secure, instead of endangering, 
 " public tranquillity; whoever exults at the spectacle of enlightened 
 " and independent assemblies, which, under the eye of a well informed 
 " nation, discuss and determine the laws and policy likely to make com- 
 " munities great and happy ; whoever is capable of comprehending all 
 " the effects of such institutions with all their possible improvements 
 " upon the mind and genius of a people, is sacredly bound to speak 
 " with reverential gratitude of the authors of the GREAT CHARTER. 
 " To have produced it, to have preserved it, to have matured it, con- 
 " stitute the immortal claim of England upon the esteem of mankind. 
 " Her BACONS and SHAKESPEARES, herMiLTONs and NEWTONS, with 
 " all the truth which they have revealed, and all the generous virtue 
 " which they have inspired, are of inferior value when compared with 
 " the subjection of men and their rulers to the principles of justice, if, 
 " indeed, it be not more true that these mighty spirits could not have 
 " been formed except under equal laws, nor roused to full activity with- 
 " out the influence of that spirit which the GREAT CHARTER breathed 
 " over their forefathers." 
 
 It has been shown in the preceding pages that the thirteenth century 
 saw the commencement of our nationality, and that during it the great 
 foundations of our constitution were laid. But it would be ignorant 
 rashness to assert that the organisation of our institutions was com- 
 plete even at the time of the death of Edward I. What was said of the 
 Roman Constitution by two of its greatest statesmen, and written by 
 another, may with equal truth be averred of the English, that no one 
 man and no one age sufficed for its full production.* But its kindly 
 
 * " Turn Lcelius, nunc fit illud Catonis certius, nee temporis uiiius, nee hominis esse 
 constitutionera reipublicce." Cicero De Republica, lib. ii. 21. 
 
 D 
 
34 THE CONSTITUTION UNDER THE PLANTAGENETS. 
 
 growth went rapidly on during the reigns of the later Plantagenets ; 
 and the historian of the last centuries of the middle ages, traces with 
 ' pride and pleasure the increase and systemisation of the power of the 
 House of Commons in asserting and maintaining the exclusive right of 
 taxation ; in making the grant of supplies dependent on the redress of 
 grievances ; in directing and checking the public expenditure; in estab- 
 lishing the necessity of the concurrence of both Houses of Parliament 
 in all legislation ; in securing the people against illegal ordinances and 
 interpolations of the statutes ; in inquiring into abuses ; in contrplling 
 the royal administration ; in impeaching and bringing to punishment bad 
 ministers; and in denning and upholding their own immunities and 
 privileges. 
 
 Hallam has admirably sketched the principal circumstances in the 
 polity of England at the accession of the House of Tudor to the crown. 
 
 "' The essential checks upon the royal authority were five in number : 1. The 
 " king could levy no sort of new tax upon his people, except by the grant of his 
 " parliament, consisting as well of bishops and mitred abbots, or lords spiritual, and 
 " of hereditary peers or temporal lords, who sat and voted promiscuously in the same 
 " chamber, as of representatives from the freeholders of each county, and from the 
 " burgesses of many towns and less considerable places, forming the lower or com- 
 " mons' house. 2. The previous assent and authority of the same assembly was 
 " necessary for every new law, whether of a general or temporal nature. 3. No 
 " man could be committed to prison but by a legal warrant specifying his offence ; 
 " and by an usage nearly tantamount to constitutional right, he must be speedily 
 " brought to trial by means of regular sessions of gaol-delivery. 4. The fact of 
 " guilt or innocence on a criminal charge was determined ^n a public court, and in 
 " the county where the offence was alleged to have occurred, by a jury of twelve men, 
 " from whose unanimous verdict no appeal could be made. Civil rights, so far as 
 " they depended on questions of fact, were subject to the same decision. 5. The 
 " officers and servants of the Crown, violating the personal liberty or other right of 
 " the subject, might be sued in an action for damages, to be assessed by a jury, or, 
 ** in some cases, Were liable to criminal process ; nor could they plead any warrant 
 " or command in their justification, not even the direct order of the king. 
 
 " The peers alone, a small body varying from about fifty to eighty persons, enjoyed 
 " the privileges of aristocracy ; which, except that of sitting in parliament, were not 
 " very considerable, far less oppressive. All below them, even their children, were 
 " commoners, and in the eye of the law equal to each other. In the gradation of 
 " ranks, which, if not legally recognised, must still subsist through the necessary 
 " inequalities of birth and wealth, we find the gentry or principal landholders, many 
 " of them distinguished by knighthood, and all by bearing coat armour, but without 
 " any exclusive privilege ; the yeomanry, or small freeholders and farmers, a very 
 " numerous and respectable body, some occupying their own estates, some those of 
 " landlords ; the burgesses and inferior inhabitants of trading towns ; and, lastly, 
 " the peasantry and labourers. Of these, in earlier times, a considerable part, though 
 " not perhaps so very large a proportion as is usually taken for granted, had been in 
 " the ignominious state of villeinage, incapable of possessing property but at the will 
 " of their lords. They had however gradually been raised above this servitude ; many 
 " had acquired a stable possession of lands under the name of copyholders ; and the 
 " condition of mere villeinage was become rare." 
 
 The gradual progress of the free principles of our constitution is no 
 longer to be traced under the Tudors, with the same regularity which 
 is observable under the Plantagenets, from John's reign downwards. 
 There seems at first sight to be a reaction towards despotism ; but this 
 appearance of degeneracy is only on the surface. Slavish things were 
 said and done in high places, and there was a dearth of measures of 
 
STATE OF ENGLAND UNDER THE TUDORS. 35 
 
 improvement, not because the nation had grown false-hearted to itself, or 
 feeble-hearted ; but because the race of its former leaders in struggles 
 for liberty now no longer supplied it with chieftains, and the orders of 
 society whence the new reformers were to spring, had not yet acquired 
 full importance and self-reliance. The dreadful civil wars of York and 
 Lancaster had hewn the Barons of England down to a scanty and scared 
 remnant; which the subtle policy of Henry VII. and the resolute ferocity 
 of Henry VIII. had tended more and more to weaken. But deep 
 thought and bold inquiry were active throughout the nation, under the 
 mighty impulses given to the mind by the general diffusion of the art 
 of printing, by the revival of the study of the classics, by the exciting 
 interest of the great geographical discoveries effected about this period, 
 and, above all, by the Reformation. Our Parliaments were, indeed, dis- 
 gracefully submissive under the two last Henrys. Such was the 
 shameful facility with which verdicts of guilty were then obtained 
 from juries in state prosecutions, principally through the iniquitous 
 system of fining and imprisoning any juror who dared to return a 
 verdict against the wish of the Crown; the judges, in their application 
 and exposition of the criminal law, were such servile tools of the 
 Sovereign; and human life was lavished on the scaffold with such savage 
 prodigality, that we cannot be surprised that while the peerage ceased 
 to furnish hereditary tribunes of the people, men of inferior position 
 shrank at first from coming forward as state martyrs : 
 
 " Nee civis erat qui libera posset 
 
 " Verba animi proferre et vitam impendere vero." 
 
 Thus it was that the Court of Star-Chamber (as the old court of the 
 king's Concilium Ordinarium was now called) exercised an extensive 
 and anomalous jurisdiction, by means of which men were arbitrarily 
 fined or imprisoned, and often sentenced to cruel mutilations, for any 
 alleged misconduct, which the lords and prelates of the Council or any 
 minister of the Crown might think fit to impute to them. Thus, 
 too, the subject's money was frequently extorted without Parliamentary 
 assent, under the name of benevolences or loans. These things and 
 other violences were endured to an extent which, under the Plantagenets, 
 would have met with firm remonstrance, if not with armed resistance. 
 But the independent power of the gentry and of the wealthier portions 
 of the middle classes was steadily, though silently, increasing; and 
 under the last three Tudors we find the House of Commons gradually 
 resuming the firm free tone and bearing, and the resolution to maintain 
 and work out the rights o the people, which the great Barons formerly 
 displayed at Runnymede and Lewes. Under Elizabeth the popular 
 party in the House of Commons was organised and active ; and more 
 than once successful in its efforts at state reform. Much, indeed, in 
 her reign was endured for her sake, and not for want of a knowledge 
 of its unconstitutional character, or of spirit to resist it. Many a 
 haughty speech and many a harsh act of Elizabeth's was forgiven 
 and forgotten by those who thought of the true English heart and 
 daring of the Queen, whom' they had seen cheering her troops at 
 Tilbury ; who had defied the spiritual thunders of the Vatican, and the 
 
 D 2 
 
36 CONSTITUTIONAL OPPOSITION TO THE STUARTS. 
 
 more perilous thunders of the Armada ; who had sent out Drake, 
 Raleigh, Cavendish, Hawkins, and Frobisher, to beard England's foes 
 and spread England's fame beyond the southern and western waves. 
 But when the imbecile though insolent Stuarts came to our throne, and 
 made our national honour a by-word abroad, while at home they paraded 
 each most offensive claim to arbitrary power in the most offensive manner, 
 no such patriotic forbearance could be expected. Fortunate for England, 
 indeed, it was that two such weak and worthless princes as the first 
 James and Charles reigned next after Elizabeth ; that we had not a 
 succession of active and prosperous sovereigns, under whom overgrown 
 prerogative might have been allowed to take too deep root, while the 
 national liberties perished amidst the blaze of the national glory. 
 
 The first two Parliaments of Charles I. had been hastily dismissed 
 by him in petulant discontent, because they adhered to the old consti- 
 tutional plan of making the grant of supplies depend upon the redress 
 of grievances. Those grievances were actively continued by the Crown 
 and its ministers ; some of them being the arbitrary billeting of soldiers, 
 the forcing of loans to the King, under the title of benevolences, the 
 imprisoning those who refused to lend, several of whom, on suing 
 out their writ of Habeas Corpus, were, in defiance of it, remanded to 
 prison. 
 
 Still, with whatever rigour unparliamentary methods of getting money 
 were resorted to, Charles found, as the early Anglo-Norman kings had 
 found, that no tyranny could extort so much from the nation, as could 
 be gained from it, if its consent to the levy was first obtained. His 
 third Parliament was therefore summoned, which met in March 1628, 
 and continued with one prorogation till March 1629. Wentworth (who 
 had not yet apostatized), Selden, Pym, Holies, Coke, Eliot, and Hamp- 
 den were of this Parliament, and other men of energy and ability, intent 
 " on vindicating our ancient vital liberties, by reinforcing our ancient laws 
 " made by our ancestors ; by setting forth such a character of them 
 " as no licentious spirit should dare to enter upon them." 5 * Charles 
 endeavoured to soothe them with vague promises ; but Sir Edward Coke 
 warned them that general words were no sufficient satisfaction for par- 
 ticular grievances. " Did ever Parliament rely on messages. The King 
 " must speak by a record, and in particulars, and not in generals. Let 
 " us put up a Petition of Right ; not that I distrust the King, but 
 " that we cannot take his trust save in a Parliamentary way.'* 
 
 The Petition of Right was accordingly drawn up by the Commons. 
 The Lords proposed in a conference to add the following clause : " We 
 " humbly present this petition to your Majesty, not only with a care of 
 " preserving our own liberties, but with due regard to leave entire that 
 " sovereign power with which your Majesty is entrusted for the pro- 
 " tection, safety, and happiness of your people." The leaders of the 
 Commons saw clearly the dangerous effect of this insidious stipulation 
 in favour of the royal prerogative, and peremptorily refused to concur in 
 the amendment. After considerable discussion the Peers gave way, 
 and the bill having passed both houses as the bill, the whole bill, and 
 
 * Speech of Wentworth. 
 
THE PETITION OF RIGHT. 37 
 
 nothing but the bill, awaited only the royal assent to become law, and 
 *' to form a memorable era in the English Government." * 
 
 On the second of June the Peers were assembled, the Commons 
 summoned, and the King appeared in the House of Lords to give his 
 answer in Parliament to the bill. But, to the surprise of all men, 
 Charles, instead of using the well-known ancient form of words by which 
 such a bill receives the royal assent, addressed the Parliament and told 
 them, " The King willeth that right be done according to the laws and 
 " customs of the realm, and that the statutes be put in due execution, 
 " that his subjects may have no cause to complain of any wrong or op- 
 " pression contrary to their just rights and liberties ; to the preserva- 
 " tion whereof he holds himself in conscience as well obliged, as of his 
 " prerogative." 
 
 The Commons returned highly incensed with this evasive circum- 
 locution. They forthwith began to assail the favourites of the Crown, 
 and impeached a Dr. Manwaring, who had preached a sermon, which 
 had afterwards been printed by the King's command, in which discourse 
 the right divine of kings to deal as they pleased with their subjects' 
 property on emergencies, whether Parliament consented or not, and the 
 duty of passive obedience in the subject, were openly and unreservedly 
 maintained. The Commons procured the trial and condemnation of 
 this sacerdotal satellite of arbitrary power, and were proceeding to assail 
 others higher in Charles's councils, when the King's obstinacy at length 
 gave way, and the Petition of Right received the royal assent in the 
 customary form of Norman French, and this second great solemn 
 declaration of the liberties of Englishmen was declared to be the law 
 of the land, among the general rejoicings of the nation. 
 
 PETITION OF RIGHT. 
 3 CAR. I.c.l. 
 
 The Petition exhibited to His Majesty by the Lords Spiritual and Temporal, and 
 Commons, in this present Parliament assembled, concerning divers Rights and 
 Liberties of the Subjects, with the King's Majesty's royal answer thereunto in 
 full Parliament. 
 
 To the King's Most Excellent Majesty. 
 
 Humbly shew unto our sovereign lord the king, the lords spiritual and temporal, 
 and commons in parliament assembled, that whereas it is declared and enacted by 
 a statute made in the time of the reign of King Edward I., commonly called 
 Statutum de tallagio non concedendofi that no tallage or aid shall be laid or levied 
 by the king or his heirs in this realm, without the good will, and assent of the 
 archbishops, bishops, earls, barons, knights, burgesses, and other the freemen of 
 
 * Hume. 
 
 f- This supposed statute found a place among our records very early, and its 
 recognition by the Petition of Right gave it thenceforth the authority of a statute. 
 But Blackstone, in his work on the Charters, has shown that it was originally nothing 
 more than an intended compendium of the Confirmatio Chartarum. See too,' 
 Guizot, ".Essais," p. 311, n.; and Hallam's " Supplemental Notes," p. 306. 
 
38 THE PETITION OF EIGHT. 
 
 the commonalty of this realm ; and by authority of parliament holden in the five- 
 and-twentieth year of the reign of King Edward III., it is declared and enacted, 
 that from thenceforth no person should be compelled to make any loans to the king 
 against his will, because such loans were against reason and the franchise of the 
 land ; and by other laws of this realm it is provided, that none should be charged by 
 any charge or imposition called a benevolence, nor by such like charge ; by which 
 statutes before mentioned, and other the good laws and statutes of this realm, your 
 subjects have inherited this freedom, that they should not be compelled to contribute 
 to any tax, tallage, aid, or other like charge not set by common consent, in parliament : 
 
 II. Yet nevertheless of late divers commissions directed to sundry commis- 
 sioners in several counties, with instructions, have issued ; by means whereof your 
 people have been in divers places assembled, and required to lend certain sums of 
 money unto your majesty, and many of them, upon their refusal so to do, have 
 had an oath administered unto them not warrantable by the laws or statutes of 
 this realm, and have been constrained to become bound to make appearance and 
 give utterance before your privy council and in other places, and others of them 
 have been therefore imprisoned, confined, and sundry other ways molested and 
 disquieted ; and divers other charges have been laid and levied upon your people 
 in several counties by lord lieutenants, deputy lieutenants, commissioners for mus- 
 ters, justices of peace and others, by command or direction from your majesty, or 
 your privy council, against the laws and free customs of the realm : 
 
 III. And whereas also by the statute called " The Great Charter of the Liberties 
 of England," it is declared and enacted, That no freeman may be taken or im- 
 prisoned, or be disseised of his freehold or liberties, or his free customs, or be out- 
 lawed or exiled, or in any manner destroyed, but by the lawful judgment of his peers, 
 or by the law of the land : 
 
 IV. And in the cight-and-twentieth year of the reign of King Edward III., it 
 was declared and enacted by authority of parliament, that no man of what estate 
 or condition that he be, should be put out of his land or tenements, nor taken, 
 nor imprisoned, nor disherited, nor^ put to death without being brought to answer 
 by due process of law : 
 
 V. Nevertheless, against the tenor of the said statutes, and other the good laws 
 and statutes of your realm to that end provided, divers of your subjects have of 
 late been imprisoned without any cause shewed ; and when for their deliverance 
 they were brought before your justices by your majesty's writs of habeas corpus, 
 there to undergo and receive as the court should order, and their keepers com- 
 manded to certify the causes of their detainer, no cause was certified, but that they 
 were detained by your majesty's special command, signified by the lords of your 
 privy council, and yet were returned back to several prisons, without being 
 charged with any thing to which they might make answer according to the law : 
 
 VI. And whereas of late great companies of soldiers and mariners have been 
 dispersed into divers counties of the realm, and the inhabitants against their wills 
 have been compelled to receive them into their houses, and there to suffer them 
 to sojourn, against the laws and customs of this realm, and to the great grievance 
 and vexation of the people : 
 
 VII. And whereas also by authority of parliament, in the five-and- twentieth 
 year of the reign of King Edward III., it is declared and enacted, that no man 
 should be forejudged of life or limb against the form of the great charter and the 
 law of the land ; and by the said great charter and other the laws and statutes of 
 this your realm, no man ought to be adjudged to death but by the laws established 
 in this your realm, either by the customs of the same realm, or by acts of parlia- 
 ment : And whereas no offender of what kind soever is exempted from the pro- 
 ceedings to be used, and punishments to be inflicted by the laws and statutes of 
 this your realm ; nevertheless of late time divers commissions under your 
 majesty's great seal have issued forth, by which certain persons have been as- 
 signed and appointed commissioners with power and authority to proceed within 
 the land, according to the justice of martial law, against such soldiers or mariners, 
 or other dissolute persons joining with them, as should commit any murder, 
 robbery, felony, mutiny, or other outrage or misdemeanor whatsoever, and by such 
 summary course and order as is agreeable to martial law, and as is used in armies 
 in time of war, to proceed to the trial and condemnation of such offenders, and 
 them to cause to be executed and put to death according to the law martial : 
 
THE ACT FOR ABOLISHING THE STAR-CHAMBER. 39 
 
 VIII. By pretext whereof some of your majesty's subjects have been by some 
 of the said commissioners put to death, when and where, if by the laws and 
 statutes of the land they had deserved death, by the same laws and statutes also 
 they might, and by no other ought to have been judged and executed : j 
 
 IX. And also sundry grievous offenders, by colour thereof claiming an exemp- 
 tion, have escaped the punishments due to them by the laws and statutes of this 
 your realm, by reason that divers of your officers and ministers of justice have 
 unjustly refused or forborne to proceed against such offenders according to the 
 same laws and statutes, upon pretence that the said offenders were punishable only 
 by martial law, and by authority of such commissions as aforesaid ; which com- 
 missions, and all other of like nature, are wholly and directly contrary to the said 
 laws and statutes of this your realm. 
 
 X. They do therefore humbly pray your most excellent majesty, that no man here- 
 after be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, 
 without common consent by act of parliament ; and that none be called to make 
 answer, or take such oath, or to give attendance, or be confined, or otherwise molested 
 or disquieted concerning the same or for refusal thereof ; and that no freeman, in 
 any such manner as is before-mentioned, be imprisoned or detained ; and that 
 your majesty would be pleased to remove the said soldiers and mariners, and that 
 your people may not be so burthened in time to come ; and that the aforesaid 
 commissions, for proceeding by martial law, may be revoked and annulled ; and 
 that hereafter no commissions of like nature may issue forth to any person or 
 persons whatsoever to be executed as aforesaid, lest by colour of them any of 
 your majesty's subjects be destroyed, or put to death contrary to the laws and 
 franchise of the land. 
 
 XI. All which they most humbly pray of your most excellent majesty as their 
 rights and liberties, according to the laws and statutes of this realm ; and that 
 your majesty would also vouchsafe to declare, that the awards, doings, and 
 proceedings, to the prejudice of your people in any of the premises, shall not be 
 drawn hereafter into consequence or example ; and that your majesty would be 
 also graciously pleased, for the further comfort and safety of your people, to declare 
 your royal will and pleasure, that in the things aforesaid all your officers and 
 ministers shall serve you according to the laws and statutes of this realm, as they 
 tender the honour of your majesty, and the prosperity of this kingdom. 
 
 Qud quidem petitione lectd et plenius intellectd per dictum dominum regem taliter 
 cst rcsponsum in plena parliament, viz., Soit droitfait comme cst desire. 
 
 There is another Act of a subsequent Parliament of this reign, by 
 which the Court of Star-Chamber was abolished ; part of which deserves 
 citation. 
 
 16 CAR. I. c. 10. 
 
 INTITULED AN ACT FOR THE REGULATING OF THE PRIVY 
 COUNCIL, AND FOR TAKING AWAY THE COURT COMMONLY 
 CALLED THE STAR-CHAMBER." 
 
 WHEREAS by the great charter many times confirmed in parliament, it is enacted, 
 that no freeman shall be taken or imprisoned, or disseised of his freehold or liberties, 
 or free customs, or be outlawed or exiled or otherwise destroyed, and that the king 
 will not pass upon him, or condemn him, but by lawful judgment of his peers, or 
 by the law of the land ; and by another statute made in the fifth year of the reign 
 of King Kd ward 111., it is enacted that no man shall be attached by any accusation, 
 nor forejudged of life or limb, nor his lands, tenements, goods, nor chattels seized 
 into the king's hands, against the form of the great charter, and the law of the land : 
 and by another statute made in the five-aml-twentieth year of the reign of the same 
 king Edward 1 1 1., it is accorded, assented, and established, that none shall be taken 
 by petition or suggestion made to the king, or to his council, unless it be by indict- 
 ment or presentment of good and lawful people of the same neighbourhood where 
 such deeds be done in due manner, or by process made by writ original at the 
 common law, and that none be put out of his franchise or freehold, unless he be 
 duly brought in to answer, and forejudged of the same by the course of the law, 
 
40 ABOLITION OF MILITARY TENURES. 
 
 and if anything be done against the same, it shall be redressed and holden for none : 
 and by another statute made in the eight-and-twentieth year of the reign of the same 
 King Edward III., it is amongst other things enacted, that no man of what estate 
 or condition soever he be, shall be put out of his lands or tenements, nor taken nor 
 imprisoned, nor disinherited, without being brought in to answer by due process of 
 law : and by another statute made in the two-and-fortieth year of the reign of the 
 said King Edward III., it is enacted, that no man be put to answer, without 
 presentment before justices, or matter of record, or by due process and writ original 
 according to the old law of the land, and if anything be done to the contrary, it 
 shall be void in law, and holden for error : and by another statute made in the six- 
 and-thirtieth year of the same king Edward III., it is amongst other things enacted, 
 that all pleas which shall be pleaded in any courts before any the king's justices, 
 or in his other places, or before any of his other ministers, or in the courts and 
 places of any other lords within the realm, shall be entered and enrolled in Latin : 
 and whereas by the statute made in the third year of king Henry VII., power is 
 given to the chancellor, the lord treasurer of England for the time being, and the 
 keeper of the king's privy seal, or two of them, calling unto them a bishop and a 
 temporal lord of the king's most honourable council, and the two chief justices of 
 the King's Bench and Common Pleas for the time being, or other two justices in 
 their absence to proceed as in that act is expressed, for the punishment of some 
 particular offences therein mentioned ; and by the statute made in the one-and- 
 twentieth year of King Henry VIII., the president of the council is associated to 
 join with the Lord Chancellor and other judges in the said statute of the 3rd of 
 Henry VII., mentioned; but the said judges have not kept themselves to the points 
 limited by the said statutes, but have undertaken to punish where no law doth 
 warrant, and to make decrees for things having no such authority, and to inflict 
 heavier punishments than by any law is warranted. 
 
 And forasmuch as all matters examinable or determinable before the said judges, 
 or in the court commonly called the Star-Chamber, may have their proper remedy 
 and redress, and their due punishment and correction, by the common law of the 
 land, and in the ordinary course of justice elsewhere ; and forasmuch as the reasons 
 and motives inducing the erection and continuance of that court do now cease : and 
 the proceedings, censures, and decrees of that court have by experience been found 
 to be an intolerable burden to the subjects, and the means to introduce an arbitrary 
 power and government ; and forasmuch as the council-table hath of late times 
 assumed unto itself a power to intermeddle in civil causes and matters only of private 
 interest between party and party, and have adventured to determine of the estates 
 and liberties of the subject, contrary to the law of the land and the rights and privi- 
 leges of the subject, by which great and manifold mischiefs and inconveniencies 
 have arisen and happened, and much incertainty by means of such proceedings hath 
 been conceived concerning men's rights and estates ; for settling whereof, and 
 preventing the like in time to come : 
 
 Be it ordained and enacted by the authority of this present parliament, that the 
 said court commonly called the Star-Chamber, and all jurisdiction, power, and 
 authority belonging unto, or exercised in the same court, or by any the judges, 
 officers, or ministers thereof, be from the first day of August in the .year of our 
 Lord God one thousand six hundred forty and one, clearly and absolutely dissolved, 
 taken away, and determined. 
 
 It scarcely falls within the province, and certainly is not within the 
 limits, of the present work, to narrate or discuss the events of the revo- 
 lutionary period, which extends from Charles I.'s attempt to seize the 
 five members, to the restoration of royalty in 1660. Of the statutes 
 passed in the reign of Charles II., several deserve mention on account 
 of their constitutional importance. The 12 Car. 2, c. 24, abolished 
 military tenures altogether, converting them into common freeholds, 
 and thus swept away those feudal rights of the Crown to wardships, 
 primer seisins, aids, homages, &c., which had long been so burden- 
 some to the nobility and gentry, who held lands by military tenure. 
 
HABEAS CORPUS ACT. 41 
 
 But it is remarkable, and it shows how early the landholders began to 
 shift the burden of taxation off their own shoulders upon those of the 
 general community, that the compensation voted to the Crown for 
 the loss of these sources of revenue, was not a permanent tax on lands 
 formerly held in chivalry (which was proposed by some members, and 
 was undoubtedly based on just principle), but an excise upon certain 
 articles of general and necessary consumption. The first regular Parlia- 
 ment of Charles passed an important Act to prevent the legislature being 
 overawed, and their votes coerced in future by riotous and seditious 
 mobs under the guise of petitioners. That statute (13 Car. 2, st. 1, c. 5) 
 is still in force, and enacts, that " no person or persons whatsoever shall 
 " repair to his Majesty or both or either of the Houses of Parliament, upon 
 " pretence of presenting or delivering any petition, complaint, remon- 
 " strance, declaration, or other addresses, accompanied with excessive 
 " number of people, nor at any one time with above the number of ten 
 " persons." 
 
 The Habeas Corpus Act, also, which was passed in this reign (31 
 Car. 2, c. 2), is of great constitutional value, though it by no means 
 introduced any new principle into our system, or formed any such epoch 
 in the acquisition of the national liberties, as some writers repre- 
 sent. But it made the remedies against arbitrary imprisonment short, 
 certain, and obtainable at all times and in all cases. The statute itself 
 enacts 
 
 " 1. That on complaint and request in writing by or on behalf of any persdn 
 " committed and charged with any crime (unless committed for treason or felony ex- 
 f< pressed in the warrant ; or as accessory or on suspicion of being accessory before 
 " the fact to any petit treason or felony ; or upon suspicion of such petit treason or 
 " felony plainly expressed in the warrant ; or unless he is convicted or charged in 
 " execution by legal process), the Lord Chancellor or any of the judges in vacation, 
 " upon viewing a copy of the warrant, or affidavit that a copy is denied, shall (unless 
 " the party has neglected for two terms to apply to any court for his enlargement) 
 " award a habeas corpus for such prisoner, returnable immediately before himself or 
 " any other of the judges ; and upon the return made shall discharge the party, if 
 " bailable, upon giving security to appear and answer to the accusation in the proper 
 " court of judicature. 2. That such writs shall be indorsed as granted in pursuance 
 " of this act, and signed by the person awarding them. 3. That the writ shall be 
 " returned, and the prisoner brought up within a limited time according to the 
 " distance, not exceeding in any case twenty days. 4. That officers and keepers 
 " neglecting to make due returns, or not delivering to the prisoner or his agent 
 " within six hours after demand a copy of the warrant of commitment, or shifting 
 " the custody of the prisoner from one to another without sufficient reason or 
 " authority (specified in the act), shall for the first offence forfeit 100, and for the 
 " second offence 200 to the party grieved, and be disabled to hold his office. 
 " 5. That no person once delivered by habeas corpus shall be re-committed for the 
 " same offence, on penalty of 500. 6. That every person committed for treason or 
 " felony, shall if he requires it, the first week of the next term, or the first day 
 " of the next session of oyer and terminer, be indicted in that term or session, or else 
 " admitted to bail, unless the queen's witnesses cannot be produced at that time ; and 
 " if acquitted, or not indicted and tried in the second term or session, he shall be 
 " discharged from his imprisonment for such imputed offence ; but that no person, 
 " after the assizes shall be open for the county in which he is detained, shall be 
 " removed by habeas corpus till after the assizes are ended, but shall be left to the 
 " justice of the judges of assize. 7. That any such prisoner may move for and 
 " obtain his habeas corpus as well out of the Chancery or Exchequer, as out of the 
 " King's Bench or Common Pleas, and the Lord Chancellor or judges denying the 
 " same on sight of the warrant or oath that the same is refused, forfeits severally to 
 
42 ENGLAND UNDEK THE LAST STUARTS. 
 
 f< the party grieved the sum of 500. 8. That this writ of habeas corpus shall run 
 " into the counties palatine, cinque ports, and other privileged places, and the Islands 
 " of Jersey and Guernsey. 9. That no inhabitant of England (except persons 
 " contracting or convicts praying to be transported, or having committed some 
 u capital offence in the place to which they are sent) shall be sent prisoner to 
 " Scotland, Ireland, Jersey, Guernsey, or any places beyond the seas within or 
 " without the queen's dominions, on pain that the party committing, his advisers, 
 " aiders, and assistants, shall forfeit to the party aggrieved a sum not less than 500, 
 " to be recovered with treble costs ; shall be disabled to bear any office'of trust or 
 " profit ; shall incur the penalties of prcemunire ; and shall be incapable of the 
 queen's pardon." 3 Black. Com. 1 37.* 
 
 These enactments, and especially the Haheas Corpus Act, make the 
 name of Charles II. figure creditably in our statute-book. But practically 
 the reign of this prince, and that of his successor, were one scene of 
 royal infamy and illegality. Even Hume, the artful and unscrupulous 
 partisan of the House of Stuart, confesses of James II. that " almost 
 " the whole of this short reign consists of attempts always imprudent, 
 " often illegal, sometimes both, against whatever was most loved and 
 " revered by the nation." Some of the grievances whereof the English 
 of those days complained most bitterly, those namely which arose from 
 the king's open encouragement of Roman Catholics, in defiance of the 
 laws respecting members of that church, and his evident zeal for 
 making that creed the established religion of the land, in lieu of the 
 Protestant, may appear comparatively unimportant to some modern 
 readers, unless they bear in mind the condition of Europe at that time, 
 and how completely the bigotry and the ambition of Louis XIV. had 
 identified the progress of Catholicism with the progress of despotic 
 principles. James was the hireling of Louis, and was animated by the 
 same feelings. He strove to gain a simultaneous triumph over Church 
 and State in England, and to lay the national faith beneath the Pope's 
 feet, while he cast down the national liberties beneath his own. 
 
 The natural consequence of this was, that a spirit of ultra-Protest- 
 antism mingled with and became an animating principle of the oppo- 
 sition, which was raised against his assaults upon the Constitution. 
 The political struggle became necessarily for the time a religious one. 
 And in that age the successful maintenance of Protestant ascendancy 
 was no mere sectarian triumph, but involved the rescue and the 
 advancement of Constitutional Freedom. 
 
 The Preamble of the BILL OF RIGHTS narrates clearly, worthily, and 
 fully the violation of the known laws, and free institutions of the realm, 
 which the late king had committed. And as the scope of this little 
 treatise does not permit a narrative here of the proceedings and dis- 
 
 * Such is the substance of that great and important statute. But as the Act is 
 confined to imprisonments on criminal, or supposed criminal, charges, the 56 
 Geo. 3, c. 100, was passed, extending the power of issuing a writ of habeas corpus 
 to other cases. By this statute it is enacted, that where any person shall be 
 confined or restrained of his liberty, (otherwise than for some criminal or supposed 
 criminal matter, and except persons imprisoned for debt or by process in any civil 
 suit), it shall and may be lawful for any judge or baron, upon complaint made to 
 him by or on behalf of the party so confined or restrained, if it shall appear by 
 affidavit or affirmation that there is probable and reasonable ground for such 
 complaint, to award in vacation time a writ of habeas corpus ad subjiciendum 
 returnable immediately. 
 
THE BILL OF EIGHTS. 43 
 
 cussion of the Convention Parliament, I will at once transcribe this 
 most important of all modern statutes. 
 
 AN ACT FOR DECLARING THE RIGHTS AND LIBERTIES OF THE 
 SUBJECT, AND SETTLING THE SUCCESSION OF THE CROWN. 
 
 WHEREAS the lords spiritual and temporal, and commons, assembled at West- 
 minster, lawfully, fully, and freely representing all the estates of the people of this 
 realm, did upon the thirteenth day of February, in the year of our Lord one 
 thousand six hundred eighty-eight, present unto their Majesties, then called and 
 known by the names and stile of William and Mary, prince and princess of Orange, 
 being present in their proper persons, a certain declaration in writing, made by the 
 said lords and commons, in the words following ; viz. 
 
 WHEREAS the late King James II., by the assistance of divers evil counsellors, 
 judges, and ministers employed by him, did endeavour to subvert and extirpate 
 the Protestant religion, and the laws and liberties of this kingdom : 
 
 1. By assuming and exercising a power of dispensing with and suspending of 
 laws, and the execution of laws, without consent of parliament : 
 
 2. By committing and prosecuting divers worthy prelates, for humbly petitioning 
 to be excused from concurring to the said assumed power : 
 
 3. By issuing and causing to be executed a commission under the great seal for 
 erecting a court called, The Court of Commissioners for Ecclesiastical Causes. 
 
 4. By levying money for and to the use of the crown, by pretence of prerogative, 
 for other time, and in other manner, than the same was granted by parliament. 
 
 5. By raising and keeping a standing army within this kingdom in time of peace, 
 without consent of parliament, and quartering soldiers contrary to law. 
 
 6. By causing several good subjects, being Protestants, to be disarmed, at the 
 same time when Papists were both armed and employed, contrary to law. 
 
 7. By violating the freedom of election of members to serve in parliament. 
 
 8. By prosecutions in the court of King's Bench, for matters and causes cognizable 
 only in parliament ; and by divers other arbitrary and illegal courses. 
 
 9. And whereas of late years, partial, corrupt, and unqualified persons have been 
 returned and served on juries in trials, and particularly divers jurors in trials for 
 high treason, which were not freeholders. 
 
 JO. And excessive bail hath been required of persons committed in criminal 
 cases, to elude the benefit of the laws made for the liberty of the subjects. 
 
 1 1 . And excessive fines have been imposed ; and illegal and cruel punishments 
 inflicted. 
 
 1'2. And several grants and promises made of fines and forfeitures, before 
 any conviction or judgment against the persons, upon whom the same were to 
 be levied. 
 
 All which are utterly and directly contrary to the known laws and statutes, and 
 freedom of this realm : 
 
 And whereas the said late King James II. having abdicated the government, 
 and the throne being thereby vacant, his highness the Prince of Orange (whom it 
 hath pleased Almighty God to make the glorious instrument of delivering this 
 kingdom from popery and arbitrary power) did (by the advice of the lords spiritual 
 and temporal, and divers principal persons of the commons) cause letters to be 
 written to the lords spiritual and temporal, being Protestants ; and other letters to 
 the several counties, cities, universities, boroughs, and cinque-ports, for the choosing 
 of such persons to represent them, as were of right to be sent to parliament, to 
 meet and sit at Westminster upon the two-and-twentieth day of January, in this year 
 one thousand six hundred eighty and eight, in order to such an establishment, as 
 that their religion, laws, and liberties might not again be in danger of being 
 subverted ; upon which letters, elections have been accordingly made : 
 
 And thereupon the said lords spiritual and temporal, and commons, pursuant to 
 their respective letters and elections, being now assembled in a full and free 
 representation of this nation, taking into their most serious consideration the best 
 
44 THE BILL OF RIGHTS. 
 
 means for attaining the ends aforesaid, do in the first place (as their ancestors in 
 like case have usually done) for the vindicating and asserting their ancient rights 
 and liberties, declare : 
 
 1. That the pretended power of suspending of laws, or the execution of laws, by 
 regal authority, without consent of parliament, is illegal. 
 
 2. That the pretended power of dispensing witli laws, or the execution of laws, 
 by regal authority, as it hath been assumed and exercised of late, is illegal. 
 
 3. That the commission for erecting the late court of commissioners for ecclesias- 
 tical causes, and all other commissions and courts of like nature, are illegal and 
 pernicious. 
 
 4. That levying money for or to the use of the crown, by pretence of prerogative, 
 without grant of parliament, for longer time, or in other manner than the same 
 is or shall be granted, is illegal. 
 
 5. That it is the right of the subjects to petition the king, and all commitments 
 and prosecutions for such petitioning are illegal.* 
 
 6. That the raising or keeping a standing army within the kingdom in time of 
 peace, unless it be with consent of parliament, is against law. 
 
 7. That the subjects which are Protestants, may have arms for their defence 
 suitable to their conditions, and as allowed by law.f 
 
 8. That election of members of parliament ought to be free. 
 
 9. That the freedom of speech, and debates or proceedings in parliament, ought 
 not to be impeached or questioned in any court or place out of parliament. 
 
 10. That excessive bail ought not to be required, nor excessive fines imposed ; 
 nor cruel and unusual punishments inflicted. 
 
 11 . That jurors ought to be duly impanelled and returned, and jurors which pass 
 upon men in trials for high treason ought to be freeholders. 
 
 12. That all grants and promises of fines and forfeitures of particular persons 
 before conviction, are illegal and void. 
 
 13. And that for redress of all grievances, and for the amending, strengthening, 
 and preserving of the laws, parliaments ought to be held frequently. 
 
 And they do claim, demand, and insist upon all and singular the premises, as their 
 undoubted rights and liberties ; and that no declarations, judgments, doings or pro- 
 ceedings, to the prejudice of the people in any of the said premises, ought in any 
 wise to be drawn hereafter into consequence or example : 
 
 To which demand of their rights they are particularly encouraged by the declara- 
 tion of his highness the Prince of Orange, as being the only means for obtaining a full 
 redress and remedy therein : 
 
 Having therefore an entire confidence, that his said highness the Prince of Orange 
 will perfect the deliverance so far advanced by him, and will still preserve them from 
 the violation of their rights, which they have here asserted, and from all other 
 attempts upon their religion, rights, and liberties. 
 
 II. The said lords spiritual and temporal, and commons, assembled at Westminster, 
 do resolve, that William and Mary Prince and Princess of Orange be, and be de- 
 clared, King and Queen of England, France and Ireland, and the dominions there- 
 unto belonging, to hold the crown and royal dignity of the said kingdoms and do- 
 minions to them the said prince and princess during their lives, and the life of the 
 
 * This does not repeal the statute of Charles II. against tumultuous petitioning. 
 See R. v. Gordon, Doug. Rep, 592. 
 
 t " In connection with the rights of personal liberty and security, is the right of 
 the subject to carry arms for his defence, suitable to his condition and degree, and 
 such as are allowed by law. There is an ancient enactment, however, [2 Edw. III. 
 c. 3], against going armed under such circumstances as may tend to terrify the 
 people, or indicate an intention of disturbing the public peace ; and by a modern 
 statute [60 Geo. III. c.l] the training persons without lawful authority to the use of 
 arms is prohibited, and any justice is authorised to disperse such assemblies of per- 
 sons as he may find engaged in that occupation, and to arrest any of the persons 
 present. Stephen's New Commentaries, vol. i., p. 140. 
 
THE BILL OF RIGHTS. 45 
 
 survivor of them ; and that the sole and full exercise of the regal power be only in, 
 and executed by the said Prince of Orange, in the names of the said prince and 
 princess, during their joint lives ; and after their deceases, the said crown and royal 
 dignity of the said kingdoms and dominions to be to the heirs of the body of the said 
 princess ; and for default of such issue to the princess Anne of Denmark, and the 
 heirs of her body ; and for default of such issue to the heirs of the body of the said 
 Prince of Orange. And the lords spiritual and temporal, and commons, do pray 
 the said prince and princess to accept the same accordingly. 
 
 III. And that the oaths hereafter mentioned be taken by all persons of whom the 
 oaths of allegiance and supremacy might be required by law, instead of them ; and 
 that the said oaths of allegiance and supremacy be abrogated. 
 
 I, A. B., do sincerely promise and swear, That I will be faithful, and bear true 
 allegiance, to their Majesties King William and Queen Mary : 
 
 So help me God. 
 
 I, A. B., do swear, That I do from my heart abhor, detest, and abjure as impious 
 and heretical, that damnable doctrine and position, That princes excommunicated 
 or deprived by the pope, or any authority of the see of Rome, may be deposed or 
 murdered by their subjects, or any other whatsoever. And I do declare, That no 
 foreign prince, person, prelate, state, or potentate hath, or ought to have any 
 jurisdiction, power, superiority, pre-eminence, or authority ecclesiastical or spiritual, 
 within this realm : So help me God. 
 
 IV. Upon which their said Majesties did accept the crown and royal dignity of 
 the kingdoms of England, France, and Ireland, and the dominions thereunto 
 belonging, according to the resolution and desire of the said lords and commons 
 contained in the said declaration. 
 
 V. And thereupon their Majesties were pleased, That the said lords spiritual and 
 temporal, and commons, being the two houses of parliament, should continue to sit, 
 and with their Majesties' royal concurrence make effectual provision for the 
 settlement of the religion, laws and liberties, of this kingdom, so that the same for the 
 future might not be in danger again of being subverted ; to which the said lords 
 spiritual and temporal, and commons, did agree and proceed to act accordingly. 
 
 VI. Now in pursuance of the premises, the said lords spiritual and temporal, and 
 commons, in parliament assembled, for the ratifying, confirming and establishing the 
 said declaration, and the articles, clauses, matters, and things therein contained, by the 
 force of a law made in due form by authority of parliament, do pray that it may be 
 declared and enacted, That all and singular the rights and liberties asserted and 
 claimed in the said declaration, are the true, ancient, and indubitable rights and 
 liberties of the people of this kingdom, and so shall be esteemed, allowed, adjudged, 
 deemed, and taken to be, and that all and every the particulars aforesaid shall be 
 firmly and strictly holden and observed, as they are expressed in the said declara- 
 tion ; and all officers and ministers whatsoever shall serve their Majesties and 
 their successors according to the same in all times to come. 
 
 VII. And the said lords spiritual and temporal, and commons, seriously con- 
 sidering how it hath pleased Almighty God, in his marvellous providence, and mer- 
 ciful goodness to this nation, to provide and preserve their said Majesties' royal 
 persons most happily to reign over us upon the throne of their ancestors, for which 
 they render unto him from the bottom of their hearts their humblest thanks and 
 praises, do truly, firmly, assuredly, and in the sincerity of their hearts think, and do 
 hereby recognize, acknowledge and declare, that King James II. having abdicated 
 the government, and their Majesties having accepted the crown and royal dignity as 
 aforesaid, their said Majesties did become, were, are, and of right ought to be, by the 
 laws of this realm, our sovereign liege lord and lady, King and Queen of England, 
 France and Ireland, and the dominions thereunto belonging, in and to whose 
 princely persons the royal state, crown, and dignity of the said realms, with all 
 honours, stiles, titles, regalities, prerogatives, powers, jurisdictions and authorities to 
 the same belonging and appertaining, are most fully, rightfully, and entirely invested 
 and incorporated, united and annexed. 
 
 VIII. And for preventing all questions and divisions in this realm, by reason of 
 any pretended titles to the crown, and for preserving a certainty in the succession 
 thereof, in .and upon which the unity, peace, tranquillity, and safety of this nation 
 
46 THE BILL OF RIGHTS. 
 
 doth, under God, wholly consist and depend, the said lords spiritual and temporal, 
 and commons, do beseech their Majesties that it may be enacted, established and 
 declared, that the crown and regal government of the said kingdoms and dominions, 
 with all and singular the premises thereunto belonging and appertaining, shall be 
 and continue to their said Majesties, and the survivor of them, during their lives, 
 and the life of the survivor of them. And that the entire, perfect, and full exercise 
 of the regal power and government be only in, and executed by his Majesty, in the 
 names of both their Majesties during their joint lives ; and after their deceases the 
 said crown and premises shall be and remain to the heirs of the body of her Majesty ; 
 and for default of such issue, to her royal highness the Princess Anne of Denmark, 
 and the heirs of her body ; and for default of such issue, to the heirs of the body of 
 his said Majesty : And thereunto the said lords spiritual and temporal, and commons, 
 do, in the name of all the people aforesaid, most humbly and faithfully submit 
 themselves, their heirs and posterities for ever ; and do faithfully promise, That 
 they will stand to, maintain, and defend their said Majesties, and also the limitation 
 and succession of the crown herein specified and contained, to the utmost of their 
 powers, with their lives and estates, against all persons whatsoever, that shall 
 attempt anything to the contrary. 
 
 IX. And whereas it hath been found by experience, that it is inconsistent with 
 the safety and welfare of this Protestant kingdom, to be governed by a Popish 
 prince, or by any King or Queen marrying a Papist ; the said lords spiritual and 
 temporal, and commons, do further pray that it may be enacted, That all and every 
 person and persons that is, are or shall be reconciled to, or shall hold communion 
 with, the see or church of Rome, or shall profess the Popish religion, or shall marry 
 a Papist, shall be excluded, and be for ever incapable to inherit, possess, or enjoy 
 the crown and government of this realm, and Ireland, and the dominions thereunto 
 belonging, or any part of the same, or to have, use, or exercise any regal power, 
 authority, or jurisdiction within the same ; and in all and every such case or cases 
 the people of these realms shall be, and are hereby absolved of their allegiance ; 
 and the said crown and government shall from time to time descend to, and be 
 enjoyed by such person or persons, being Protestants, as should have inherited and 
 enjoyed the same, in case the said person or persons so reconciled, holding com- 
 munion, or professing, or marrying as aforesaid, were naturally dead. 
 
 X. And that every King and Queen of this realm, who -at any time hereafter 
 shall come to and succeed in the imperial crown of this kingdom, shall on the first 
 day of the meeting of the first parliament, next after his or her coming to the 
 crown, sitting in his or her throne in the house of peers, in the presence of the lords 
 and commons therein assembled, or at his or her coronation, before such person or 
 persons who shall administer the coronation oath to him or her, at the time of his 
 or her taking the said oath (which shall first happen) make, subscribe, and audibly 
 repeat the declaration mentioned in the statute made in the thirteenth year of the 
 reign of King Charles II., intituled, " An Act for the more effectual preserving the 
 King's person and government, by disabling Papists from sitting in either house of 
 parliament." But if it shall happen, that such King or Queen, upon his or her 
 succession to the crown of this realm, shall be under the age of twelve years, then 
 every such King or Queen shall make, subscribe, and audibly repeat the said 
 declaration at his or her coronation, or the first day of the meeting of the first 
 parliament as aforesaid, which shall first happen after such King or Queen shall 
 have attained the said age of twelve years. 
 
 XI. All which their Majesties are contented and pleased shall be declared, 
 enacted, and established by authority of this present parliament, and shall stand, 
 remain, and be the law of this realm for ever ; and the same are by their said 
 Majesties, by and with the advice and consent of the lords spiritual and temporal, 
 and commons, in parliament assembled, and by the authority of the same, declared, 
 enacted, and established accordingly. 
 
 XII. And be it further declared and enacted by the authority aforesaid, That 
 from and after this present session of parliament, no dispensation by non obstante 
 of or to any statute, or any part thereof, shall be allowed, but that the same shall be 
 held void and of no effect, except a dispensation be allowed of in such statute, and 
 except in such cases as shall be specially provided for by one or more bill or bills to 
 be passed during this present session of parliament. 
 
 XIII. Provided that no charter, or grant, or pardon, granted before the three- 
 
THE ACT OP SETTLEMENT. 47 
 
 and-twentieth day of October, in the year of our Lord one thousand six hundred 
 eighty nine shall be any ways impeached or invalidated by this act, but that the 
 same shall be and remain of the same force and effect in law, and no other than as 
 if this act had never been made. 
 
 The Act of Settlement, which was passed in the last year of King 
 William's reign, and from which the House of Hanover derives its title 
 to the Crown of England, added some constitutional guarantees for the 
 rights of the people, which seemed to have been omitted in the Bill of 
 Rights. 
 
 Eight articles were inserted in the Act of Settlement, to take effect 
 only from the commencement of the new limitation to the House of 
 Hanover. These articles are the following : 
 
 That whosoever shall hereafter come to the possession of this crown, shall join 
 in communion with the Church of England as by law established. 
 
 That in case the crown and imperial dignity of this realm shall hereafter come 
 to any person, not being a native of this kingdom of England, this nation be not 
 obliged to engage in any war for the defence of any dominions or territories which 
 do not belong to the crown of England, without the consent of parliament. 
 
 That no person who shall hereafter come to the possession of this crown, shall 
 go out of the dominions of England, Scotland or Ireland, without consent of 
 parliament. 
 
 That from and after the time that the further limitation by this act shall take 
 effect, all matters and things relating to the well governing of this kingdom, which 
 are properly cognizable in the privy council by the laws and customs of this realm, 
 shall be transacted there, and all resolutions taken thereupon shall be signed by 
 such of the privy council as shall advise and consent to the same. 
 
 That, after the said limitation shall take effect as aforesaid, no person born out 
 of the kingdoms of England, Scotland, or Ireland, or the dominions thereunto 
 belonging (although he be naturalized or made a denizen, except such as are born 
 of English parents), shall be capable to be of the privy council, or a member of 
 either house of parliament, or to enjoy any office or place of trust, either civil or 
 military, or to have any grant of lands, tenements, or hereditaments, from the 
 crown, to himself, or to any other or others in trust for him. 
 
 That no person who has an office or place of profit under the king, or receives 
 a pension from the crown, shall be capable of serving as a member of the house of 
 commons. 
 
 That, after the said limitation shall take effect as aforesaid, judges' commissions 
 be made quamdiu se bene gesserint, and their salaries ascertained and established ; 
 but, upon the address of both houses of parliament, it may be lawful to remove 
 them. 
 
 That no pardon under the great seal of England be pleadable to an impeachment 
 by the commons in parliament. 
 
 " The first of these provisions was well adapted to obviate the jealousy which the 
 " succession of a new dynasty, bred in a protestant church not altogether agreeing 
 " with our own, might excite in our susceptible nation. A similar apprehension of 
 " foreign government produced the second article, which so far limits the royal 
 " prerogative that any minister who could be proved to have advised or abetted a 
 " declaration of war in the specified contingency would be criminally responsible to 
 " parliament. The third article was repealed very soon after the accession of 
 George I."* 
 
 " With respect to the fourth article, it should be observed that, according to the 
 " original constitution of our monarchy, the king had his privy council composed of 
 " the great officers of state, and of such others as he should summon to it, bound by 
 " an oath of fidelity and secrecy, by whom all affairs of weight, whether as to 
 " domestic or exterior policy, were debated for the most part in his presence, and 
 " determined, agreeably to his pleasure, by the vote of the major part. 
 
 * Hallam's Const. Hist., vol. ui. p. 246. 
 
48 THE ACT OF SETTLEMENT. 
 
 u As early as the reign of Charles I. the privy council, even as it was then con- 
 " stituted, was too numerous for the practical administration of supreme power, and 
 " a select portion of that body, were, under the name of ( cabinet council,' selected 
 " as more confidential advisers of the crown, and were previously consulted as to 
 (( the policy to be pursued respecting such measures as were to come under discussion. 
 
 " During the reign of William, this distinction of the cabinet from the privy 
 " council, and the exclusion of the latter from all business of state became more 
 " fully established. * The method is this,' says a member in debate : ' things are 
 " ' concerted in the cabinet, and then brought to the council ; such a thing is re- 
 " ( solved in the cabinet, and brought and put on them for their assent, without showing 
 " 'any of the reasons. This has not been the method of England. If this method be, 
 "'you will never know who gives advice.' 
 
 " It was endeavoured to restore the ancient principle by the fourth provision in 
 " the Act of Settlement, that, after the accession of the House of Hanover, all re- 
 " solutions as to government should be debated in the privy council, and signed by 
 " those present. But, from some unknown motives, this clause never came into 
 " operation, being repealed by the statute, 4 Anne, c. 8 ; 6 Anne, c. 7. 
 
 " The opposition were desirous of reducing this influence, and the first instance of 
 " exclusion from the House of Commons, in consequence of employment, occurs in 
 " 1694, when, on the formation of a new board of revenue, for managing the stamp 
 " duties, its members were disqualified from having seats in the House : and by 
 " Stat. 11 & 12 William III., c. 2, s. 150, a similar disability was extended to the 
 u commissioners, and some other officers of excise. 
 
 " It was soon perceived that the clause excluding all official personages from the 
 " House, was highly impracticable ; and a repeal of the article took place in 1706, 
 " the commons being still determined to preserve the principle of limitation as to 
 " the number of placemen that should be capacitated. 
 
 " The House of Commons introduced into the e Act of Security ' a clause enume- 
 " rating various persons who should be eligible to parliament ; the principal officers 
 " of state, the commissioners of treasury and admiralty, and a limited number of other 
 " placemen ; this was successfully objected to by the lords, but two most impor- 
 " taut provisions were established. 
 
 " FIRST, that every member of the House of Commons, accepting an office under 
 " the crown, except a higher commission in the army, shall vacate his seat, and a 
 " new writ shall issue. 
 
 " SECONDLY, persons holding offices created since the 25th of October, 1705, were 
 " incapacitated from being elected, or re-elected members of parliament. They 
 " excluded at the same time all such as held pensions during the pleasure of the 
 " crown ; and, to check the multiplication of placemen, enacted, that no greater 
 " number of commissioners should be appointed to execute any office, than had been 
 " employed in its execution at some time before that parliament." * 
 
 It is to be observed that the Act of Settlement, while it gave a new 
 dynasty the right to reign in England, solemnly acknowledged on that 
 solemn occasion the existence and authority of all the subjects' rights. 
 The conclusion of the Act of Settlement is as follows : 
 
 " IV. And whereas the laws of England are the birthright of the people thereof, 
 " and all the Kings and Queens, who shall ascend the throne of this realm, ought to 
 " administer the government of the same according to the said laws, and all their 
 " officers and ministers ought to serve them respectively according to the same : 
 " the said lords spiritual and temporal, and commons, do therefore further humbly 
 " pray, That all the laws and statutes of this realm for securing the established 
 u religion, and the rights and liberties of the people thereof, and all other laws and 
 " statutes of the same now in force, may be ratified and confirmed, and the same 
 " are by his Majesty, by and with the advice and consent of the said lords spiritual 
 " and temporal, and commons, and by authority of the same, ratified and confirmed 
 " accordingly. 1 ' ' 
 
 It would be superfluous to point out categorically how completely 
 * See Hallam, and Stephens's De Lolme." 
 
STATE OP ENGLAND AFTER 1688. 49 
 
 this Act, the Petition of Right and the Bill of Rights, recognise and 
 confirm the primary great constitutional principles which the Great 
 Charter first established. But, before proceeding to the Reform Bill of 
 1833 (which seems next in constitutional importance), it may be useful 
 to consider shortly the actual state of the English Government and 
 nation soon after the Revolution of 1688, and during the early part of 
 the last century. 
 
 With the expulsion of the Stuarts the long struggle between the king 
 and the people ended : and the substitution on the English throne 
 of a line of princes, who derived their title confessedly through the 
 nation's will, extinguished all those absurd dogmas as to the right 
 divine of kings, the patriarchal principle of government, the duty 
 of the subject to submit to all royal orders, and the like, which 
 had previously been never-failing pretexts for sanctioning or ex- 
 cusing violations of constitutional right, and graspings after abso- 
 lute power. Indeed, since the reign of William, the royal heads 
 of our limited monarchy have exercised little personal interference in 
 state affairs. Our kings and queens have reigned, but the government 
 of the country has been carried on by ministers, who have been and 
 necessarily must be dependent on Parliament for their tenure of office. 
 Not that the personal opinions or character of the sovereign of this 
 country ever can be absolutely unimportant. " His habits and tastes 
 1 are always matters of notoriety, and often of imitation. Access to 
 * his society is always coveted. He may give that access in a manner 
 ' useful, or mischievous, or absolutely indifferent. He may call to his 
 ' court those who are most distinguished by genius or by knowledge ; 
 ' or those whose only merit is their birth or their station ; or parasites, 
 ' buffoons, or profligates. Even in the appointment of ministers, he 
 ' may sometimes exercise a sort of selection. He is sometimes able 
 ' to delay for a short period the fall of those whom he likes, and the 
 ' accession of those whom he dislikes ; and he can sometimes perma- 
 ' nently exclude an individual." * 
 
 He can indeed do more than this, provided parties are nearly 
 balanced in the country. In such a state of things the personal adhe- 
 rents of the sovereign, (and a band more or less numerous of such 
 there will always be,) can turn the scale, and determine the adoption 
 or rejection of measures of the greatest moment both in foreign and 
 domestic policy. The influence exercised by George III., in very 
 critical times, by means of " the king's friends " is notorious. The 
 power of dissolving Parliament is also a strong engine in the sovereign's 
 hands, whereby he may protect himself from ministers personally dis- 
 tasteful to him, and gain at least the chance of seeing a House of 
 Commons returned whose feelings may harmonise with his own. But 
 if the national will, as expressed by the two legislative assemblies, is 
 decided and strong on one side of a question, and a dissolution of 
 Parliament only causes a solemn popular ratification of the expression 
 of that will in the House of Commons, the sovereign is utterly power- 
 loss. Being thus powerless, he is properly irresponsible. He is at the 
 
 * Edinburgh Review of Lord Brougham's " Political Philosophy." 
 
 E 
 
50 HOUSE OF PEERS. HOUSE OF COMMONS. 
 
 head, but others lead ; and they alone who lead are answerable for the 
 course taken. 
 
 Our House of Peers at the Revolution of 1688 consisted of about 
 150 temporal, and 26 bishops. I have before indicated the causes that 
 originally made the English an hereditary Peerage, and gradually it 
 became a fixed maxim that the individual whom the sovereign sum- 
 moned by his royal writ to the House of Lords, acquired thereby not 
 only the right to sit in the particular Parliament during which the 
 writ issued, but a right for himself and heirs to become and be thence- 
 forth a peer of the realm. Thenceforth every peer of full age has been 
 held entitled to his writ of summons at the commencement of every 
 Parliament. But although it is not in the power of the .Crown to 
 sway the deliberations of the House of Lords by excluding old peers, 
 the prerogative of creating new temporal peers at discretion has been 
 retained by the Crown, both before and after the Revolution, though a 
 strong effort was made in George I.'s reign to cut down this important 
 constitutional prerogative. A bill limiting the House of Lords after a 
 very small increase should have been made to its then actual numbers, 
 was brought in by Lord Sunderland's ministry, and carried easily 
 through the Upper House, but lost in the Commons, fortunately for 
 the interests of all orders in the state, but especially for the permanent 
 interest and existence of that very body, which the bill was designed 
 with short-sighted policy to strengthen. 
 
 The House of Commons continued to consist of knights of the 
 shires, and representatives of the cities and boroughs. The mode in 
 which particular boroughs acquired, lost, or regained the right of sending 
 representatives, has become a topic of comparatively little practical 
 interest since the Reform Bill. It seems probable that under the 
 Plantagenets every town of any consequence received a writ directing it 
 to return burgesses to Parliament ; but it is clear that from the very 
 commencement of our representative system some very inconsiderable 
 places returned members. Sometimes the negligence or partiality of 
 the sheriffs omitted towns that had formerly received writs; and fre- 
 quently new boroughs, as they grew into importance, or from some 
 private motive, acquired the franchise of election. Gradually it became 
 a recognised principle that the right of a borough to return members 
 having once existed can never be lost : and none of the 111 cities and 
 towns which returned members at the accession of Henry VIII. inter- 
 mitted their privilege down to 1832. 
 
 " Henry VIII. gave a remarkable proof that no part of the kingdom, subject to 
 " the English laws and parliamentary burthens, ought to want its representation, 
 " by extending the right of election to the whole of Wales, the counties of Chester 
 " and Monmouth, and even the towns of Berwick and Calais. It might be possible 
 u to trace the reason, though I have never met with any, why the county of Durham 
 " was passed over. The attachment of those northern parts to popery seems as 
 " likely as any other. Thirty-three were thus added to the Commons. Edward VI. 
 " created fourteen boroughs, and restored ten that had disused their privilege. 
 " Mary added twenty-one, Elizabeth sixty, and James twenty-seven members. 
 
 " These accessions to the popular chamber of parliament after the reign of Henry 
 " VIII. were by no means derived from a popular principle, such as had influenced 
 " its earlier constitution. We may account perhaps on this ground for the writs 
 " addressed to a very few towns, such as Westminster. But the design of that great 
 
HOUSE OP COMMONS. VOTERS IN BOROUGHS. "> 1 
 
 " influx of new members from petty boroughs, which began in the short reigns of 
 " Edward and Mary, and continued under Elizabeth, must have been to secure the 
 " authority of government, especially in the successive revolutions of religion. Five 
 " towns only in Cornwall made returns at the accession of Edward VI. ; twenty-one 
 " at the death of Elizabeth. But the county of Cornwall was more immediately 
 " subject to a coercive influence, through the indefinite and oppressive jurisdiction 
 " of the stannary court. Similar motives, if we could discover the secrets of those 
 " governments, doubtless operated in most other cases. A slight difficulty seems to 
 " have been raised in 1563 about the introduction of representatives from eight new 
 " boroughs at once by charters from the crown, but was soon waived with the com- 
 " plaisance usual in those times, Many of the towns, which had abandoned their 
 " privilege at a time when they were compelled to the payment of daily wages to 
 " their members during the session, were now desirous of recovering it, when that 
 " burthen had ceased and the franchise had become valuable. And the house, out of 
 " favour to popular rights, laid it down in the reign of James I. as a principle, that 
 " every town, which has at any time returned members to parliament, is entitled to 
 " a writ as a matter of course. The speaker accordingly issued writs to Hertford, 
 " Pomfret, Ilchester, and some other places, on their petition. The restorations 
 " of boroughs in this manner, down to 1641, are fifteen in number. Charles I., 
 " whose temper inspired him rather with a systematic abhorrence of parliaments 
 " than with any notion of managing them by influence, created no new boroughs. 
 " The right indeed would certainly have been disputed, however frequently exercised. 
 " In 1673 the county and city of Durham, which had strangely been unrepresented, 
 u to so late an sera, were raised by act of parliament to the privileges of their fellow- 
 " subjects. About the same time a charter was granted to the town of Newark, 
 " enabling it to return two burgesses. It passed with some little objection at the 
 " time ; but four years afterwards, after two debates, it was carried on the question, 
 " by 125 to 73, that by virtue of the charter granted to the town of Newark, it 
 " hath right to send burgesses to serve in parliament. Notwithstanding this 
 " apparent recognition of the king's prerogative to summon burgesses from a town 
 " not previously represented, no later instance of its exercise has occurred ; and it 
 " would unquestionably have been resisted by the commons, not, as is vulgarly 
 " supposed, because the act of union with Scotland limited the English members to 
 " 513, (which is not the case,) but upon the broad maxims of exclusive privilege in 
 " matters relating to their own body, which the house was become powerful 
 " enough to assert against the crown." * 
 
 There is considerable doubt as to the class of persons by whom the 
 electoral franchise in boroughs was originally exercised. 
 
 The four principal conflicting theories on the subject are stated at 
 length, and their respective claims to our adoption are fairly summed 
 up by Hallam. Sir James Mackintosh thought that from the earliest 
 times to which borough voters can be traced, they were of the same 
 variety of classes as in later times before the Reform Bill. " In some 
 " places the freemen ; in others, the officers of a corporation ; else- 
 " where, freeholders, burgage tenants, inhabitants contributing to public 
 " expense, or other inhabitants with scarcely sufficient qualification of 
 " property to afford a presumption of fixed residency; these, and com- 
 " binations of various sorts of them, were the principal classes among 
 " whom the elective franchise was in the earliest times shared." As 
 the power of the House of Commons increased, the composition of the 
 electoral bodies became an object of growing attention to the Crown, 
 and, especially under the last Tudors and the Stuarts, sedulous efforts 
 were made to mould and influence the municipal composition of those 
 parliamentary boroughs which were also corporate cities and towns. By 
 
 * Hallam's Constitutional History, vol. iii. p. 353. 
 E 2 
 
52 ROTTEN BOROUGHS. QUALIFICATION ACTS. 
 
 machinations of this kind, by the silent effect of time in reducing many 
 places which had once been populous into wretched hamlets, and by 
 many boroughs having (as has before been mentioned) been originally 
 selected by the Crown to return members on account of their liability to 
 Crown influence, a great number of the Parliamentary boroughs became 
 the mere instruments of powerful individuals, who owned the few houses 
 in them which gave a right of voting, or who purchased the suffrages of 
 a little clique of self-elected electors. These close, or rotten boroughs 
 as they were familiarly termed, gave great facilities for the increase of 
 the indirect influence of the Crown, but they also favoured the ambition 
 of wealthy subjects; and it is to be borne in mind that they peculiarly 
 aided the efforts of the commercial classes to raise themselves into an 
 equality with the territorial aristocracy.* This last, the landed interest, 
 made in the ninth year of Queen Anne a great struggle to secure its 
 ascendancy, by excluding the rest of the community from Parliament. 
 With this view the landed gentry obtained the passing of an Act by 
 which every member of the Commons, except those for the universities, 
 was required to possess, if a knight of the shire, a freehold or copyhold 
 estate of clear ^600 per annum, and, if representative of a borough, a 
 like landed qualification to the amount of s300 per annum. There 
 had been an old statute of Henry VI., requiring county representatives 
 to be chosen from " notable knights, or such as shall be able to be 
 knights," (i. e. have freehold to the amount of 5640 per annum,) but 
 this statute had fallen into desuetude, and the new law went far beyond 
 it, and would, if effectually carried out, have converted our House of 
 Commons into an odious deputation of landed oligarchs. This law, 
 however, has been systematically evaded, nor are the provisions of the 
 modern statute, f which has made personal as well as real property 
 qualify its owner for parliament, much more efficacious in attaining the 
 only proper object of such restrictions, that, namely, of preventing 
 needy adventurers from obtaining seats in the House. Neither of 
 these Acts having required a member to possess the stipulated qualifica- 
 tion during all the time that he continues to be member, it always has 
 been and is enough to procure for the occasion a colourable transfer 
 from some person who really holds the requisite property, which transfer 
 is cancelled or reversed directly the member has taken his seat. This 
 practice may be almost said to have received the sanction of the legisla- 
 ture by what took place when the 33 Geo. 2, c. 30, was passed. That 
 statute, which first made it necessary for the newly elected member to 
 swear to his qualification on taking his seat, contained, when it was first 
 brought forward, a clause requiring every member who should at any 
 time during the continuance of the parliament to which he was elected, 
 sell, dispose of, alien, or in anywise encumber the estate which made 
 his qualification, to deliver in on oath a statement for a new or further 
 qualification before he should again presume to sit or vote as a member 
 of the House of Commons. But the legislature rejected this clause ; 
 and thus deliberately sanctioned the system by which men of no 
 
 * See Hallam's Constitutional History," vol. iii. p. 402. 
 f 1 & 2 Viet. c. 48. 
 
SEPTENNIAL ACT. r >J 
 
 property, but who can find wealthy friends with confidence in their 
 honour, obtain seats as English members.* 
 
 The laws which regulate the duration of Parliament, belong also to 
 the period between the revolution and the accession of George III.; and 
 are not only of great constitutional importance, but have given rise to 
 one of the practical political questions of the present time. There is 
 an ancient statute of Edward II.'s reign (5 E. 2, c. 29 f)> which is prin- 
 cipally a confirmation of Magna Charta, but which contains at its close 
 the following additional provisions: "Forasmuch as many people be 
 " aggrieved by the king's ministers against right, in respect to which 
 " grievances no one can recover without a common parliament ; we do 
 " ordain that the king shall hold a parliament once in the year, or twice 
 " if need be." And a statute of the next reign (4 Edw. 3, c. 14), 
 ordains that " a parliament shall be holden every year once, and more 
 often if need be." These Acts are generally supposed to have only pro- 
 vided that there should be an annual meeting of parliament, and not 
 that there should be a new parliament every year. Certainly these 
 statutes had been in either sense little heeded in practice, and there was 
 no explicit enactment as to how often there should be a new parliament 
 until the Triennial Bill of 1642 was passed by the Long Parliament. 
 After the restoration this salutary statute was repealed at the king's 
 special request ; and one of Charles II.'s parliaments, which was found 
 eminently loyal and corruptible, was prolonged in mischievous existence 
 for the enormous period of seventeen years. In the year after the 
 Great Revolution a bill was brought in and passed both Houses to limit 
 the duration of parliament to three years. King William refused his 
 assent to it; but the Commons renewed their exertions; the repeated 
 exercise of the royal veto would have been perilous to its possessor, and 
 a Triennial Bill became law in 1694. But in 1717 it was deemed 
 unsafe by the ministers of the newly arrived Hanoverian King to risk a 
 general election, and the celebrated Septennial Act was passed, which 
 has hitherto stood firm against the repeated attempts that have been 
 made to obtain a return to triennial parliaments. 
 
 Not wishing to complicate this work by the discussion of Scotch or 
 Irish topics, I purposely pass over the Act of Union with Scotland, as 
 I shall presently pass over the similar Act with regard to Ireland. 
 
 The influence of the middle classes, which had been greatly developed 
 and augmented during the period between the Great Revolution and the 
 accession of George III., increased in a rapidly accelerated ratio during 
 the long and eventful reign of the last-mentioned sovereign. 
 
 ;f The extension of commerce and manufactures, after the treaty of 
 " Paris, in 176,3, was rapid and unprecedented. Large manufacturing 
 " and commercial towns arose in all parts of the country, the inhabitants 
 " of which were but little influenced by those powerful ties which gene- 
 " rally connect an agricultural population with the superior land-owners. 
 " With the increase of opulence and population consequent upon the 
 " increase of manufactures and trade, education and the desire of political 
 
 See Smollett, Book iii. c. 13, sect. 56. 
 f Statutes of the Realm, i. 165. 
 
54 POWEK OF MIDDLE CLASSES. THE EEFORM BILL. 
 
 " information became more generally diffused. The press acquired 
 " great influence. Political journals were established in every consider- 
 " able town, in which the conduct of public men and the policy of all the 
 " measures of government were freely canvassed. The improved facili- 
 " ties of internal communication afforded the means of conveying intel- 
 ligence with astonishing rapidity from one part of the country to 
 " another ; so that most persons began to take an interest, not only in 
 " what was going on around them, but in public affairs, and in the con- 
 " cerns of the remotest part of the empire. Prejudices and established 
 " opinions of all sorts were openly attacked. The structure of the 
 " political fabric, and the rights and privileges of the different ranks and 
 1 orders of society, were subjected to a searching investigation, and their 
 1 claim to respect began to be tried by reference to their usefulness rather 
 ' than their antiquity. Public opinion, expressed through the medium of 
 ' a thousand different channels, became a check on the executive scarcely 
 ' inferior in efficacy to the existence of a popular assembly. Under 
 ' such circumstances we need not wonder that the enterprising citizens 
 " of great manufacturing and commercial towns, as Manchester, Birming- 
 " ham, Sheffield, &c., felt daily more dissatisfied at being denied the 
 " privilege possessed by so many inferior boroughs, of sending representa- 
 " tives to the House of Commons. They began, during the American 
 " war, publicly to manifest their impatience at such exclusion ; and, 
 " deriving confidence from their numbers, their wealth, and their 
 " intelligence, they prosecuted their claims to participate directly in the 
 " privileges of the constitution with a boldness which would probably 
 " have been long ago successful, if the progress of peaceful reformation 
 " had not been arrested by the violence of the French revolution. The 
 " alarms occasioned by that event, and the war that grew out of it, 
 " suspended for a while the demand for a remodelling of the repre- 
 " sentative system. But after the peace of 1815, these solicitations 
 " were renewed; and the reasonableness of the claim, united with the 
 " great accession of popular influence and the excitement occasioned by 
 " the movements on the Continent in 1830, made it imprudent any 
 " longer to disregard it."* 
 
 The passing of the Reform Bill is an event too recent to make any 
 detailed narration respecting it necessary or proper here. But there 
 are one or two facts connected with the mode in which that great 
 measure was carried, which have been of permanent importance, 
 and deserve a brief allusion. One of these is the system of organised 
 agitation, which was then successfully employed for the first time in 
 England, to obtain a political object. Another is the mode in which the 
 acquiescence of the hereaitary branch of the legislature was obtained, 
 namely, by a personal request from the sovereign to the most active 
 opponents of the measure to abstain from voting, lest their continued 
 opposition to the popular will should force the sovereign to swamp the 
 House of Lords by a huge creation of new peers for the purpose of 
 out-voting the old ones. A third is the indisputable fact that a very 
 slight concession of Reform at an early period would have satisfied 
 
 * Macculloch. 
 
THE REPEAL OF THE CORN LAWS. 55 
 
 most reformers, and have obviated the bringing forward of the sweeping 
 measure which ultimately became the law of the land. Another fact, 
 and not the least in importance, is the extent to which the dreaded bill 
 has proved a Conservative measure, and the proof it has given that men 
 who, while unfrauchised, are the noisy opponents of all establishments, 
 will, when they receive the franchise, often become their steadiest and 
 most zealous supporters. 
 
 I pass no opinion as to whether these facts are to be deplored or 
 rejoiced over. I merely draw attention to them as facts which have 
 existed, exist, and will exist, whether we like them or not, and which 
 are calculated to throw important light on the coming political struggles, 
 which equally, whether we like it or not, are sure to take place 
 ere long in this country. 
 
 The provisions of the Reform Bill, both as regards the places that 
 return members, and the electoral qualification, are too familiar to 
 require setting out in these pages. It is enough to remind the reader that 
 by that statute the number of county members for England and Wales, 
 was increased from ninety-five to one hundred and fifty-nine ; that the 
 number of members for the metropolis and its adjacent districts was aug- 
 mented to eighteen ; that fifty-six parliamentary boroughs were wholly, 
 and thirty-one partially disfranchised ; and that forty-three new boroughs 
 were created, twenty-two of which return two members, and twenty-one, 
 one member each. And (subject to some local and some temporary 
 variations), the right of voting for parliamentary representatives, now 
 pertains in counties to all forty-shilling freeholders, except freeholders 
 for life in certain cases, where the amount of yearly value required is 
 10, to 10 copyholders, to 10 leaseholders, if the term of the lease 
 is for sixty years, and to 50 tenants-at-will : while the electoral 
 suffrage in cities and boroughs is given to the 10 householders. 
 
 The effect of the Reform Bill undoubtedly has been to throw 
 preponderating power into the hands of the middle classes of this 
 country. And under the term Middle Classes, it is here meant to 
 include all those who are below the landed aristocracy, and above such 
 artisans and labourers as depend on manual labour for subsistence. 
 The aristocracy have retained great direct constitutional power, and 
 still greater indirect influence ; but the recent abolition of the Corn- 
 Laws has conclusively proved that the middle classes, if united and 
 energetic, are irresistible. I am not in any way passing an opinion as 
 to the merits or demerits of the late Free Trade legislation, but I 
 merely call attention to the indisputable fact that it was the work of 
 the middle classes, against the wish and in despite of the opposition of the 
 great bulk of the territorial aristocracy. And there is also another great 
 fact connected with it, which merits observation, namely, that it was 
 effected by the middle- classes, without the co-operation of the lower. 
 It is well known that the Chartists uniformly thwarted and opposed 
 the Anti-Corn-Law League, nor were the masses in any place con- 
 sistently active in its support. In this respect the Anti-Corn-Law 
 movement is more important than the agitation which produced the 
 Reform Bill. The middle class reformers in 1832, won the Reform 
 Bill with the assistance and through the assistance of the masses; but 
 
56 PRESENT GRIEVANCES OF THE MIDDLE CLASSES. 
 
 in 1846 the middle classes by themselves carried Free Trade. It is 
 not meant by this that the Free Trade measures did not receive the 
 support of many members of the higher orders, but that they were 
 substantially the work of the men of the middle ranks. 
 
 But, although the middle classes, when brought to combine for 
 a great practical purpose by years of agitation, and by skilful organiza- 
 tion backed by lavish employment of wealth and ability, can thus make 
 their wills irresistibly heard in the council of the nation, the old 
 landed aristocracy retains enormous strength, and opposes to every 
 measure of change a huge resisting power, of which the active hostility 
 is less formidable than its " Vis Inertice," its ever present obstructive- 
 ness ; while the popular force acts by impulse only, and requires either 
 special excitement or long-continued agitation to rouse it into life. By 
 the extent to which the power of the English aristocracy has survived 
 the Reform Bill, the predictions of the violent partisans and the violent 
 opponents of that measure have been equally contradicted. Not that 
 there ever was or is now any antipathy between the higher and middle 
 orders in this country. The majority of English professional men, 
 traders and yeomen, are willing, nay, are desirous that the aristocracy 
 should be splendidly powerful. But still the feeling is general amongst 
 them, and continually gains ground, that the landed aristocracy exercises 
 an undue amount of influence in our legislation, and that the excess of 
 that influence is felt in many mischievous ways. Thus it is a common 
 subject of complaint that the burden of taxation is thrown in a very 
 unfair proportion upon the middle classes, especially by the system of 
 subjecting all personal property to heavy legacy arid probate duties, 
 from which the estates of the landed gentry and nobility are wholly 
 free. Another tax, which is called temporary, but which is sadly sure 
 to be permanent, the Income Tax, inflicts the most iniquitous oppression 
 upon the middle classes, as compared with the lower as well as with the 
 upper, that a minister ever yet ventured on. It shows, indeed, how 
 firmly statesmen trust in the loyalty of the classes which they venture 
 thus to burden. There are other topics of complaint, such as the 
 working of the present electoral system, which leaves great numbers of 
 men of intelligence, education, and some property, wholly disfranchised. 
 But it is needless to recapitulate such subjects in this place, both by 
 reason of their notoriety, and on account of the fact that the middle 
 classes have the means in their hands, constitutionally, to protect them- 
 selves and to redress the grievances which they complain of ; although 
 it is undoubtedly an evil and a hardship on them that they cannot 
 do this without leagues and agitations and all their accompanying 
 annoyances. 
 
 While the desire and determination are rapidly increasing among the 
 middle classes to effect further Constitutional Reform, it may be safely 
 asserted that the wish for organic changes is at present rare among 
 them. We feel, as Cromwell was warned that our ancestors felt 
 that our old limited hereditary monarchy is a blessing to the country, if 
 it be only on account of the quiet and good order which its principle 
 of succession insures, compared with the mischief which would follow 
 if the post of chief magistrate among us were to be intrigued for by the 
 
BENEFITS OF THE CROWN AND HOUSE OF LORDS. 57 
 
 ringleaders of clubs, or fought for by ambitious soldiers. With regard 
 to the House of Lords, the necessity of a second legislative Chamber 
 is almost universally admitted ; nor could we frame one that would 
 work better than our present Peerage. Such a second Chamber, in 
 order to be of the least use, must not be a mere duplicate of the House 
 of Commons, but must, if elective, be, like the American Senate, elected 
 by a more limited and opulent body of voters than that which elects 
 the House of Commons. But it is self-evident that in this country an 
 upper House, elected solely by the wealthy class of the community, 
 would be infinitely more oligarchical and obstructive to Reform, than 
 the House of Lords has ever been. The House of Lords, indeed, at 
 present, though theoretically co-equal with the House of Commons, 
 is notoriously and avowedly the weakest of the two, and gives way 
 when any serious and deliberate difference of opinion takes place. All 
 that it now does, and all that it claims to do, is to check hasty legisla- 
 tion, and to give an opportunity for an appeal to the people by a 
 dissolution of Parliament. If the nation then confirm the voice of 
 its former representatives, by re-electing them, or by returning men 
 of similar principles, the Lords own that they are bound to give way 
 to the clear and deliberate expression of the popular will. The 
 debates in the House of Peers on the recent Free Trade measures, 
 have been of great constitutional interest in this point of view. The 
 champions in the upper House of the landed aristocracy, though 
 they asserted with truth that they had a majority of the Peers, who 
 in their hearts were in favour of the Corn Laws, never held out 
 the idea or the hope that the House of Lords could permanently 
 stop the Free Trade movement, supposing the nation to be steadily 
 resolved on forwarding it. All that they claimed was an opportunity 
 of taking the sense of the people on the subject by rejecting the pro- 
 posed act once, and compelling the Ministers to try a general election 
 of the House of Commons. Lord Stanley's words on this subject are 
 so explicit that I will quote a short passage from the speech of that 
 eminent party-leader in opposition to the second reading of the 
 Corn Importation Bill, May 25th, 1846. 
 
 " My Lords, if I know anything of the constitutional value of this 
 " House, it is to interpose a salutary obstacle to rash and inconsiderate 
 " legislation ; it is to protect the people from the consequences of 
 " their own imprudence. It never has been the course of this House 
 " to resist a continued and deliberately expressed public opinion. Your 
 " Lordships always have bowed, and always will bow, to the expression 
 " of such an opinion; but it is yours to check hasty legislation leading 
 " to irreparable evils." * 
 
 Of course when parties are at all equally balanced in the country, as 
 was the case during the violent but temporary reaction towards Con- 
 servatism, between 1834 and 1842, the House of Lords can peremp- 
 torily determine the fate of any measure. Nor can it be thought wrong 
 that they should do so. The middle classes have no right to expect 
 their will to be obeyed, while that will is divided or doubtful. But 
 
 * Hansard, vol. 86, p. 1175. 
 
58 POLITICAL FEELINGS OF THE LOWER ORDERS. 
 
 when their will is emphatically and unmistakeably expressed, the Peerage 
 owns that it must defer to it, and the most strenuous middle -class 
 Democrat can hardly wish for more. 
 
 It is from the masses, from the millions of artisans and labourers, 
 that the new formidable movements originate which compel attention; 
 and the present position, duties, and rights of the masses in respect to 
 the English Constitution are things, which it is neither morally just nor 
 politically expedient to neglect. 
 
 This practical inquiry is closely connected with the investigations 
 which have occupied the preceding portions of this work. We have 
 traced the origin of the English Constitution, and the first development 
 of its principles, at a time when the newly formed English nation con- 
 sisted of not more than two or three millions of human beings ; one 
 half at least of whom were in an abject state of serfdom, while the other 
 half, the freemen of the land, the "Liberi homines" of MagnaCharta, 
 were divided into proud and powerful barons, each girt with his band 
 of armed retainers and personal dependents ; into smaller landowners 
 equal in birth but inferior in possession to the great peers ; into a class 
 of still smaller owners of land, our free yeomanry, 
 
 " England's peculiar and appropriate sons, 
 " Known in no other land," 
 
 and into citizens and burgesses who were beginning to revive the old 
 Roman system of municipal self-government, and to re-awaken the 
 spirit of commercial energy and enterprise. First framed in those 
 troubled times, and for that scanty and ill-assorted population, our con- 
 stitution has expanded with the expanse of civilisation, numbers, and 
 power ; and while it has preserved all its integral parts and all its 
 primary attributes, it has become the government of and for us, the 
 middle classes of the sixteen millions of this mighty English nation, 
 whose language, laws, arts, arms, and institutions are over-spreading 
 every region of the world. But its gravest trial yet remains, and seems 
 likely to be brought to a speedy issue. Can our Constitution adapt 
 itself to the growing claims of the lower orders, as it has to the growing 
 claims of the middle orders; or, must it be either guarded by force 
 against their assaults, or surrendered to them as not worth being pre- 
 served at such a price ? In other words, what is the new democracy ? 
 Are its existence and growth necessarily incompatible with the mainte- 
 nance of our Constitution? And, if so, is the new democracy to be coerced 
 or the Constitution to be abandoned ? These are questions which it is 
 impossible long to shirk, and it is better to discuss them with pens than 
 with pikes. 
 
 Great as is the contrast between the position and importance of the 
 middle classes at this time, compared with their situation a century 
 ago, we see changes still more momentous when we compare the lower 
 orders of the present day with the lower classes of the former epoch. 
 The political status of the middle classes has been improved, but the poli- 
 tical status of the lower orders has been created ; and their might, like 
 that of the Aloidse, while yet in its infancy, fills the higher powers with 
 consternation. No one, during the constitutional struggles which the 
 
CHANGED CHARACTER OF THE LOWER ORDERS. 59 
 
 great Barons headed, thought about the politics of the villeins of the 
 country. No one of the gentry, the yeomanry, and the tradesmen who 
 strove against the Stuarts, ever claimed political power for the 
 labourers and common artificers of the time. Nothing indeed can 
 exceed the scorn with which Milton, and other writers of that period 
 " Pro populo Anglicano," speak of the mere " Plebs" To come down 
 to times nearer to our own to the first years of the reign of George III. 
 eighty years ago, though political controversy was hot enough, and 
 though the territorial aristocracy was rapidly giving way to the new 
 men from the central files, no one ever heard or dreamed of the lower 
 orders meddling with politics. No statesmen thought that ploughmen 
 and journeymen mechanics even knew what the Parliamentary franchise 
 meant, much less that they wished for it, and least of all that they had 
 any possible right to it. 
 
 But things are wholly altered since then ; and we live in a very 
 different age to that in which Blackstone could complacently remark to 
 his well-bred audience at Oxford, that inquiries into the foundation of 
 rights " would be useless, and even troublesome, in common life," and 
 that "it was well that the mass of mankind should obey the laws, 
 " when made, without scrutinising too minutely the reasons for 
 " making them." * Such apathetic submission to the ordinances of 
 their supposed betters no longer exists, and never can exist again, 
 among our lower orders. There were no Chartists or Trades' Unions 
 when Blackstone wrote. There could not be such bodies, for society 
 then contained not their materials. The rudiments of education were 
 rarely to be found among the inferior artisans of our large towns, and 
 were almost wholly unknown among the peasantry. There must have 
 been then, as now, much poverty, much suffering, much repining at 
 their own lot, much envy of the more affluent and powerful ; but the 
 idea of mutual combination and joint efforts to obtain the right of 
 voting and the power of altering the system of government, was never 
 heard of among them. The huge growth of the populations of our 
 manufacturing towns, the general increase in the numbers of the whole 
 people, the progress of education (lamentably imperfect as it has been, 
 especially for the best objects of education), the springing up of a cheap 
 press and a cheap literature, the universal ferment caused in men's 
 minds by the American War of Independence, and by the uprising of the 
 fierce democracy of France these and other well-known causes have 
 made the lower orders of Englishmen what we now behold them. The 
 habit of combination which they have acquired, of itself proves the 
 greatness of the change. This new tendency of our masses to 
 act in organised bodies, has been fully proved by the thousands 
 who joined in the political unions, which preceded, and in the trades' 
 unions which followed, the passing of the Reform Bill. The hundreds 
 of thousands who are now enrolled as Chartists confirm it. And 
 we see indeed this formidable method followed up for any purpose 
 which interests any considerable number of operatives in any of our 
 large towns. This habit of combining, of planning, of debating, of 
 
 Blackstone's Commentaries. 
 
60 is THE "PEOPLE'S CHARTER" CONSTITUTIONAL'? 
 
 organising, and conducting the diplomatic and fiscal machinery, which 
 every association, however small, requires, is at once the result and the 
 instrument of political education. The masses that have acquired it 
 are sure to be politically active, whether their activity be for good or 
 for evil. 
 
 Deeply disappointed with the effect of the Reform Bill, which they 
 had helped to win for others, great bodies of the working men 
 throughout the country, especially in the towns, have for the last ten 
 years leagued themselves as supporters of a new Reform Bill of their 
 own, under the name of the People's Charter. This document was 
 drawn up in 1837, by six members of Parliament and six working men, 
 and these " Articuli Plebis " claim the following well-known six points 
 as the rights of the people : 1st. Universal Suffrage ; 2nd. Annual 
 Parliaments ; 3rd. Equal Representation by Electoral Districts ; 4th. 
 Vote by Ballot ; 5th. No Property Qualification ; and 6th. Payment 
 of Members. 
 
 Is this new Charter constitutional ? 
 
 In the first place we may observe that in its terms it in no way 
 violates the constitution. It neither professes to attack the Crown, nor 
 the House of Lords. The letter of no one of its articles contravenes 
 any of those primary principles which we have deduced from the 
 original Magna Charta of King John, and traced through our subse- 
 quent constitutional history. But the letter of a proposed measure is 
 not solely to be considered. We must examine its spirit also ; and if 
 we find that its certain effect would be to render the future peaceful 
 working of our constitution impossible, we are bound to reject it as 
 unconstitutional. 
 
 Two of the points of the People's Charter the abolition of the 
 property qualification for members, and the restoration of the system 
 of members being paid wages by their constituents, are perfectly 
 unobjectionable, whatever may be thought of their unimportance. 
 Annual parliaments would be inconvenient, and most lovers of peace 
 and quietness, would think a return to the triennial system enough : 
 but annual parliaments would never cause a revolution. Vote by 
 ballot is a scheme, the importance of which is grossly overrated both 
 by friends and foes. It could do no harm, and might do some good. 
 If, therefore, any great number of the people ask for it, they ought 
 to have it. Indeed, it is a middle class measure, and will probably 
 soon be carried, independently of the Chartists. The Ballot is an 
 attempt to make elections quiet, pure, and harmless to the voters ; 
 and to call such an attempt un-English and unconstitutional, is one of 
 the worst pieces of ignorant cant ever canted in this country. The 
 article of the Charter which requires equal representation by equal 
 electoral districts, as proposed to supersede the whole of the present 
 representative system of counties and boroughs, is open to very grave 
 objections. It would sweep away a host of old local associations and 
 local ties that have beneficially influenced for centuries each shire and 
 each burgher community. It would be a gigantic development of the 
 principle of centralisation, a principle which has been hitherto less 
 admitted into our institutions than into those of any nation, except our 
 
MISCHIEF OF UNIVERSAL SUFFEAGE. 61 
 
 kinsmen the Anglo-Americans ; and to the jealous restriction of which 
 our capability for free government is considered to be mainly owing.* 
 It would destroy the representation of the landed interest, which was 
 the primary germ of the House of Commons ; for it would swamp the 
 rural votes in nearly every district by a certain preponderance of town 
 (lectors . But this is not the most important article of the Charter, 
 nor is it the one which its adherents care the most for. It is the claim 
 of Universal Suffrage which they most insist on, and which a lover of 
 the constitution is bound the most peremptorily to oppose. A House 
 of Commons elected by universal suffrage, would, on the first 
 symptom of independent action manifested by the Peers, vote an 
 Upper House useless ; and would abrogate it as unceremoniously as 
 was done here in the time of the Rump Parliament, or as was done in 
 Paris a few months ago. The Crown would soon follow the coronets, 
 and we should be cursed with the factions and civil conflicts arising out 
 of the election of a President. Financial difficulties would soon 
 suggest the facility of saving 28 millions of taxes by repudiating the 
 National Debt. At the first step towards such repudiation, our credit 
 and our commerce would be paralysed; and the calamity of national 
 bankruptcy would fall in full weight, not on the landed aristocracy, as 
 some advocates of a gradual application of the sponge strangely 
 suppose, but on the middle classes, who form nine-tenths of the 
 national creditors. It is needless to pursue the sketch of ruin and 
 degradation farther. No educated and reflecting man, unless he is 
 either a Communist, or a Red Republican, can look on the grant of 
 universal suffrage as less than an act not merely of constitutional but 
 of national suicide. 
 
 On the other hand, the prospect is painful to a generous, and for- 
 midable to a prudent mind, of seeing the working classes grow 
 gradually more and more alienated from the upper and middle orders ; 
 nor is the consciousness pleasing that we live amid the sullen hatred of 
 a majority of our countrymen, whom our superior organisation alone 
 prevents from exacting from us what they deem their rights, in some- 
 what the same manner as that in which the barons extorted the first 
 Great Charter from King John, at Runny mede. As for the hordes of 
 rogues and ruffians whom society always contains amid its dregs, and 
 who come forward in all seasons of excitement, under pretext of political 
 purposes, but with no real aim save that of plunder, we know that their 
 onmity must be expected, and must be sternly coerced by every settled 
 government. And we must expect to be obliged to apply almost equal 
 coercion to those fanatics and dupes, who under the title of Communists, 
 Socialists, Owenites, Fourrierites, &c., preach doctrines subversive of all 
 social security and all moral obligation. These men are the enemies 
 not of any particular system of government, but of society itself. They 
 are its voluntary outlaws. They are beyond the pale of every law, 
 human and divine, which they seek to destroy ; and when they intrude 
 into the fold of civilisation, they deserve neither parley nor mercy. 
 But it is with far different feelings that we should regard the sober, 
 
 * See De Tocqueville's work on " America," passim. 
 
6 REMEDIAL REFORM PROPOSED. 
 
 honest, hard-working millions, whose manual toil heaps up our national 
 wealth; who contribute to our taxes in the price of every necessary 
 of life ; who read, and study, and discuss the political events of the 
 day with growing interest and intelligence ; but who, because they do not 
 rent a 5610 house in some favoured borough, or hold a forty- shilling 
 freehold, are deprived of all voice and influence in the choice of the 
 people" s Parliamentary representatives. 
 
 How are these men's claims to be reconciled with the safety of our 
 institutions ? I answer, Consult the spirit of the Constitution ; bear in 
 mind the proved value of its primary institutions ; bear in mind, also, 
 its principle of expansion and development ; and the true solution of 
 these difficulties will be seen to consist in the adoption of some measures, 
 which shall accord a share of political power to the classes which have 
 been newly awakened into political life, without sacrificing to them the 
 other orders of the community. Let what De Montfort did for the 
 citizens and burghers, be now done for the artisans and labourers. Let 
 it be done on the old constitutional plan of not letting the New crush 
 the Old, but of renovating and strengthening the Old by the incorpora- 
 tion of the New. Do not sacrifice the Constitution to the lower orders, 
 but give the lower orders a place in the Constitution. 
 
 He who gives these general counsels, must expect to be questioned 
 as to what practical means he recommends for carrying them out. 
 I venture on the following reply: 
 
 Let the present representative system of counties and boroughs be 
 in the main preserved ; but out of the representatives of the smaller 
 and notoriously corrupt boroughs, and of the smaller counties, pare 
 away fifty members. Divide Great Britain into fifty electoral dis- 
 tricts, according to the population, and let each of these districts 
 return one member, for whom no property qualification should be 
 required. Let him be paid wages by his constituents, in order to give 
 working men the chance of becoming members. Give a vote in the 
 election of the district member to every male aged twenty-one years, 
 who has no vote for any county or borough, who has resided for a year 
 in the district, who has not been convicted of any criminal offence for 
 the last seven years, or received parish relief for the last year, and who 
 is able to read and write. Let there be an annual registration of 
 district electors, according to these qualifications, and require of 
 every district elector, at the time of registration, the payment of six- 
 pence, to defray the member's wages, and the expense of registration 
 and election. Let the voting be by Ballot. 
 
 This would give a vote to every man in the community who is really 
 desirous, and really fit to possess one. It by no means follows that 
 the fifty district members would be all men sprung from the lower 
 orders, or all vehement partisans of the democracy. Judging from the 
 usual workings of human nature, a large portion of them would be very 
 much the reverse. But even if fifty strong champions of the masses 
 were thus to find their way into the House, such a proportion could 
 never jeopardise the state, by forcing on ultra -democratical or anarchical 
 measures. And certainly on many subjects, on those for instance of 
 Emigration, of the Poor-Laws, of the Factory Question, of Educational 
 
TRUE PRINCIPLES OF REPRESENTATION. 63 
 
 Grants, and indeed on every social and financial question, the presence 
 and the expressed opinion in the House, of real men of the people, 
 would be most important and beneficial. 
 
 It is a truism with political writers, that a representative system of 
 government ought to be based not on property only, and not on 
 numbers only, but on a ratio blended of the two. Chartism goes into 
 the extreme of requiring numbers only to be considered in representa- 
 tion : our present system certainly verges towards the other extreme, 
 by excluding vast numbers from any representation at all. The plan 
 which I have indicated, would give these numbers a share in the Con- 
 stitution, without suffering pauperism to swamp property, and without 
 levelling intelligence beneath brute ignorance. It would not break up 
 our old territorial and local classifications ; it would not check the 
 workings of the old systems with which we are familiar; it would not 
 diminish the prerogative of the sovereign, or the privilege of the peer ; 
 it would threaten neither the security nor the natural influence of 
 wealth. But it would change hundreds and thousands of sullen mal- 
 contents into loyal subjects, zealous to protect the Constitution in 
 which they were allowed to share. It would strengthen and purify 
 our House of Commons ; and blend upper, middle, and lower classes 
 in cheerful co-operation for the general good. 
 
 The ancient Athenians had a national oath by which each genera- 
 tion of citizens bound themselves to defend the state, and to hand it 
 down to their descendants better than they had found it-. 
 
 'Afj.we'iv Tfj TrorptSt /ecu a/jLelvu TrapaSuffeiv. 
 
 That oath was conceived in the truest spirit of Conservatism ; and in 
 its spirit should each Englishman act who truly venerates the Consti- 
 tution of his country, and wishes to preserve it unimpaired. For that 
 purpose, while religiously guarding its primary institutions from the 
 experiments of the mere theorist and the assaults of the destroyer, 
 he must work out its vital law of growth and development, and endea- 
 vour to apply its principles to the emergencies of the present time, 
 as his ancestors did to the emergencies of the times gone by. Finality 
 is a delusion, and Revolutionary Change is madness. The only safe 
 course is the good old track of Constitutional progress by means of Con- 
 stitutional Reform. 
 
 TTNIV 
 
 THE END. 
 
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