M A G N A CHART A..

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9 Hen. III. A. D. 1225.

EFORE any obfervation or comment is made upon the particular articles of Magna Charta, it may not be improper to give a general reference to thofe writers who have profeffedly confidered this most ancient of our ftatutes, which may at present be inforced —

It is unneceffary to mention, that Sir Edward Coke hath written fuch a comment in his fecond Inftitute It would be the highest presumption in any one to pretend to add to what this great Lawyer hath advanced, if his obfervations did not happen to be made with a view totally different, and to arise from different materials-It seems almost as unneceffary to say, that, during the troubles, the 29th article [a] of this Great Charter, deemed the bafis of our liberties and conftitution, was frequently enlarged upon by Mr. Selden, and the other great Lawyers of those times.

- Since that period, though this 29th article hath been introduced into almost every political pamphlet, yet it is not, perhaps, worth while to refer the Reader to any thing which hath fince been published [b], till the introductory difcourfe by the learned and ingenious Mr. Blackstone, prefixed to his publication of the Great Charter, and Charter of the Foreft In the fourth page of that introduction Mr. Blacktone fays, that what the Reader is to expect from him is, An authentic and correct edition of the Great Charter, and Charter of the Foreft-This the public hath received from his hand, and great is his merit with the conftitutional Lawyer, the Hiftorian, and the Antiquary it appears however, from what I have faid in my Preface,. that this no way interferes with, but rather promotes, the plan I have propofed to myself in these remarks-Mr. Blackftone hath procured and collated all the originals of the Charters which he could collect; I have only to add to this, that, befides the common editions of the Statutes, all of which neceffarily include Magna Charta, there is an edition of it by Pynson, in 1519-another by Redman, in 14 Hen. VIII.-and another by Berthlet,

[4] Nullus liber homo, etc.

(b) Nath. Bacon hath written a comment upon fome few of the ancient Statutes-I fhall rely upon the greatest authority in faying, that he is a per tial, and fyftematical writer on the conftitution.. Law of Forf. p. 108..

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in 1532; befides its being inferted in many of the old Chronicles-Thefe cannot certainly be compared to originals, but may poffibly deferve to be collated.

Having faid thus much with regard to those who have already written with a view to explain or illuftrate Magna Charta, it may not be improper to confider what was the intention of the Barons in this collection of Laws [c], as far as it can be inferred from the Laws themselves, or the History of the times—It is well known, that, in the expofition of a Statute, this is the leading clew in the construction to be made; and I cannot therefore but with diffidence fubmit it, that it was not proposed to renew the Saxon Law, or Laws of Edward the Confeffor [d]; though this hath been so often advanced, and contended for-If this had been the intention, thefe Laws of Edward the Confeffor would have been exprefly mentioned; and there is not one Saxon term for any thing that relates to Feudal Tenures, which are the great objects of many of the chapters -There was, on the other hand, the strongest inducement to the Barons to wish the con. tinuance of the Norman and Feudal Law introduced with the Conqueft Half the kingdom was held by Feudal Tenures under them-They were themselves the Judges (having what the French call Haute and Baffe Juftice)-They expounded their own Laws, the pleadings of which were likewife in their own tongue-The native English therefore, or their defcendants, could not receive juftice from Courts fo conftituted, and which gave the Barons at the fame time every kind of influence and power - It appears by the last chapter of the Charter, that every one of the attefting witneffes who were laymen (as for the Bishops, Abbots, and Priors, they fign by their christian names, and that of their bishopric or priory) were of Norman extraction-Whence then could arife the inducement to make it an express article that the Saxon Laws fhould be restored?—The introducing the Feudal Law, on the other hand, with its attendant Vaffalage, was infifted upon by their ancestors, who had incurred fo confiderable an expence and rifque, when they embarked with William the Firft in his enterprize-Such adventurers had a right to claim their own terms, as we find likewise to be the cafe with the first adventurers in the conquest of Ireland, and the Lacies and Mortimers, who, as Lords Marchers, were employed to extend the English dominion in the adjacent counties of Wales. In short, is it probable, that, having every thing in their power, they would infift upon reftoring a Law by which every grant made to their

[c] Such a collection of Laws is called, by Baluzius, a Capitularium, a term, which I shall have frequently occafion to make use of-See his Pref, to the Capitularia Regum Francorum. [d] "Non quas tulit Sanctus Edwardus, fed quas obfervavit," fays Tyrrell.

ancestors

ancestors (and from which their own power and influence at that time arose) fhould be rendered doubtful, or at leaft ftript of its greateft advantages, and emoluments?I will not anticipate any observations upon the differerent chapters of Magna Charta any further, than by faying it will moft fully appear, that the defcendants of thefe Norman Barons were by no means forgetful of their own peculiar interefts on this occafion; and therefore could never mean to abolish the Norman and Feudal Law, which was in every respect fo highly advantageous to them.

MAGNA CHARTA, though it is printed in all editions of the statutes as a law made in the ninth year of Henry the Third, is, more properly, a transcript from the Parliament Roll of 25 Edw. I. who then confirmed it, after reciting the Magna Charta of his father by Infpeximus [e]-This confirmation [f] was occafioned by Edward's having (from his great neceffities) rifled all the monafteries in that very year — fecit omnia regni monafteria perfcrutari, et pecuniam inventam Londonias afportari, fecitque coria et lanas arreftari. Camden's Angl. Norm. p. 165.-There is a record in Rymer, which relates to this confirmation by Edward the First, which I fhall here infert.

"De Octavâ levandâ et Magnâ Chartâ propter eandem confirmanda, anno 25 Edw. I. Clauf. 25 Edw. I.

"Edwardus Dei gratiâ, Rex Angliæ, dominus Hiberniæ, et Dux "Aquitaniæ, Vicecomitibus Bedf. et Bucks falutem - Quia, in releva"tionem omnium incolarum et populi regni noftri, pro octavâ omnium "bonorum fingulorum laicorum per totum idem regnum pro urgen"tiffimâ nunc dicti regni neceffitate contra Gallicos levandâ, conceffimus 66 nobis et hæredibus noftris cònfirmari et firmiter teneri facere pro "Magnam Chartam de libertatibus Angliæ, et chartam de libertatibus "Foreftæ-Et conceffimus omnibus et fingulis ejufdem regni literas "noftras patentes, quod dictæ octava levatio non cedat eifdem in præju"dicium, fervitutem, exhæreditationem, ufum, vel confuetudinem in fu"turum [g];-Tibi præcipimus quòd fine dilatione aliquà quatuor de "probioribus et legalioribus militibus comitatuum tuorum, videlicet de

[e] The collectors of French records style this kind of exemplification a Vidimus

] It is attefted by Edward the Second, then Prince of Wales, and who was but thirteen years of age; Edward himself was then at Ghent, in Flanders-I should imagine, that the attestation by the Prince of Wales (being of fo tender years) was to give him a pretence of dif-puting the confirmation when he came to the throne.

[g] This part of the record fully explains the fifth chapter of the 25 Edw. I. [See the marks on that Statute.]

" quolibet

"quolibet comitatu duos, eligi, et eos plenam poteftatem pro ipfis, et tota "communitate dictorum comitatuum habentes, ad Edwardum filium "noftrum cariffimum, tenentem in Angliâ locum noftrum, venire facias. "Ita quod fint London' ad eundem filium noftrum modis omnibus in "octavis Sancti Michaelis proximò futuri ad ultimum, chartas fuper con"firmatione noftrâ chartarum prædictarum, et literas noftras fupra præ"dictâ conceffione pro ipfa communitate in formâ prædictâ accepturi, et "facturi ulteriùs quod per dictum filium et concilium noftrum ibidem "fuerit ordinatum.-Tefte Edwardo filio noftro, apud Sanctum Paulum, 66 15 die Septembris, anno regni noftri 25."-Then follow, on the back, the names of those who were deputed by the counties of Bedford aud Buckingham, Rymer, vol. i. par. iii. p. 189. Hague edit. 1745,-Edward the Firft himself afterwards fealed this confirmation, with the Great Seal of England, at Ghent, on the 5th of November.

Magna Charta confifts of Thirty-feven Chapters, which relate to things of fo different a nature, that it is impoffible to reduce the observations, by way of comment upon it, to any regular order or connexion. I fhall. therefore introduce any remark I may have to make, by only printing fo much of a chapter (by way of text) as may give occafion to the explanatory remarks.

CA P. I.

IN primis conceffimus Deo-quod ecclefia Anglicana libera fit, et habeat omnia jura fua integra, et libertates fuas illafas.] It is an obfervation of Sir G. Mackenzie [b], that every reign of the ancient kings of Scotland begins with a provifion of a fimilar nature in favour of the liberties of the church, The fame may be obferv'd with regard to almost all the compilations of ancient laws. The reafon is obvious. I fhould fuppofe, that the liberties of the English Church hereby infifted upon were chiefly its immunities from the papal jurifdiction, which had been fo far extended in the reign of Henry's predeceffor. Thus likewife the French, to this day, infift upon the liberties of the Gallican Church in oppofition to the pope, relative to which du Tillet compiled a treatise from the French archives in 1602. The laborious Prynne hath likewife collected three large Folios of Records to prove thefe immunities of the English church; the greatest part of the printed copies of his fecond volume was deftroyed by the fire of London,. fo that it is not only fcarce, but fold at an immenfe price: it contains. however many curious, and valuable records.

[] In his Obfervations on the Scots Statutes.

CAP.