Chapter XVI: Front Matter (16)

In these circumstances Henry was obliged to submit to be judged by the Pope’s legates, who, at length, absolved him, on his swearing that he had not willingly occasioned the murder, and that he felt great grief and vexation on account of it; in which, no doubt, he was sincere. But before he could obtain it, he was obliged to promise to be faithful to Alexander and his successors, not to interrupt the free course of appeals to Rome in ecclesiastical causes, and not to enforce the observance of evil customs introduced since his accession to the throne; for so they stiled the constitutions of Clarendon, though they were only declarations of the old law. And thus ended this famous contest, in an absolute victory on the side of the Pope[383].

LECTURE XXXVI.

_The rebellions of Henry’s sons—He is succeeded by Richard_
I.—_The steps taken at this period towards settling the
succession to the kingdom—The laws of Oleron—Accession of
John—His cruelty and oppressions._

Henry’s quarrel with the Pope, terminating in the manner it did, necessarily weakened the weight and influence he ever before supported, both in his own kingdom, and on the continent; nor could the unwearied pains he afterwards took, in redressing grievances, and making salutary laws, by the advice of his parliament, restore him to the consequence he had lost. The rest of his life was spent in unfortunate wars with his rebellious children, instigated thereto by the artful Philip of France. And the pretence was grounded on a step that Henry had taken in favour of his children, and I may add of his people, that of bringing the crown to a regular course of succession, and by that means preventing contests upon a vacancy. Hugh Capet, the first of the present race of French kings, who came to the throne by election, in order to perpetuate it in his family, invented that practice which his successors followed for near three hundred years, of associating the eldest son, by causing him to be crowned in the father’s lifetime.

Henry, who loved his children, and was sensible that the not following this practice in England had occasioned the wars between William and Henry the Conqueror’s sons, and their brother Robert, as well as those between Stephen and himself and his mother, crowned his eldest son Henry. But the use which the ungrateful prince made of his advancement, was to embroil his father, by demanding the immediate cession of Normandy, on pretence that, being a king, he should have some country given up immediately to govern. Upon young Henry’s death, the father, who knew Richard, with greater capacity, was equally unnatural with his elder brother, resolved not to give him the same pretence to trouble him, and refused obstinately to have him crowned; but this refusal served itself for a pretext for rebellion, as it gave Richard room to think, or at least to pretend to think, that his father intended to disinherit him, and to settle the crown on his youngest and favourite son John. In this rebellion Richard, assisted by the king of France, and many of Henry’s subjects, who probably suspected Henry’s design was such as was suggested, prevailed, and the father was obliged to engage that his subjects should take the oath of eventual allegiance to Richard, and soon after died of a broken heart, occasioned by the undutiful conduct of every one of his sons.

Richard accordingly succeeded; during whose reign we have little to observe concerning the laws, the whole time of it being spent in a continual state of war either in Palestine or France. Enormously heavy indeed were the taxations his subjects laboured under, and yet they bore them with chearfulness. For the holy war, and the recovery of the sepulchre of Christ from the infidels, no aids could be thought exorbitant; and for his wars after his return he was readily supplied out of affection; for the remorse he shewed for having occasioned his father’s death, his admirable valour, the injustice of and the cruel treatment he received in his captivity, and, above all, the opposition between the perfidious conduct of the French king and his openness and sincerity, endeared him to his subjects, made them shut their eyes on his many failings, and bear their burthens with patience.

Two things only passed in this reign proper for the subject of these lectures, the steps made for settling the succession of the crown, and the laws of Oleron. As Richard was unmarried when he set out for Palestine, he thought it proper to prevent, if he could, any doubt that might arise, in case he died without issue. There might, in this case, be two competitors, Arthur, the son of Geoffry, his next brother who was dead, and John the youngest brother, who was living. However clear the point is at this day in favour of the nephew, it was then far otherwise. For Arthur might be urged the right of representation. He represented his father Geoffry; in all the fiefs in France, the law was in favour of the nephew; nay, Glanville, who wrote in Henry the Second’s reign in England, as to English estates, declared to the same purpose; and certain it is that the general current of opinions at that time tended that way[384].

On the other side, it might be said in favour of John’s pretensions, that the examples of fiefs could be no precedents in case of crowns. These required more strictly, a person capable of acting in person. That this was the very case; John was a man, Arthur a child; that, allowing Glanville to have laid down the law right, he had made a distinction, which comes up to this case; for he says, the uncle shall succeed, if the father of the nephew had in his life-time been _forisfamiliated_; that Geoffry had been out of the _patria potestas_ of Henry, by being sovereign prince of Britany; that in the Saxon times two cases, for the exclusion of infants, had happened, much stronger than the present; that when Edmund the first died in possession of the throne, his brother Edred succeeded, not his sons; and though Edmund Ironside had been king, yet, after the Danish usurpation ceased, his brother the _Confessor_ was preferred to his son, though of full age, whereas Geoffry never had the crown; that, since the conquest, three several times had the lineal succession been set aside by parliament. So that there were not wanting plausible arguments of each side of the question, and it is with injustice that modern historians, considering only the maxims of their own times, when a regular succession has been established, charge John with a manifest usurpation of the crown of England. But that he was a manifest usurper of the territories in France must be allowed; for, by the laws of that country, they should have gone to the nephew.

A question of this weight and difficulty should regularly have been decided in parliament, which always hitherto had determined in such matters; but Richard had never thought of the business till he left England, and then it was too late to proceed in that method. He was obliged, therefore, to content himself with declaring, by his own authority, his nephew Arthur his successor; and, to prevent John’s traversing his design, he exacted an oath from him not to set foot in England for three years; but from this obligation he afterwards released him, at the request of their mother. John used all his art to caress the nobility, and to supplant his nephew Arthur, as he fondly hoped Richard would never return. And indeed, the conduct of William Longchamp, bishop of Ely, Richard’s viceroy, contributed greatly to his success; for, as to oppressions and outrages, he was not exceeded even by William Rufus himself. This gave John a pretext for intermeddling to preserve the liberties of the people. He sent word to that prelate, that if he did not refrain from his exorbitancies, he would visit him at the head of an army; which for such an occasion he might easily raise.

A general assembly, or parliament, was called, to compose the differences; in which it was settled, that Longchamp should continue in the administration, and hold the castles during the king’s life, but that, if he died without issue, they should be delivered to John as successor; and this agreement was ratified by the oaths of all the nobility and prelates, so that, as Arthur had the decision of the king in his favour, John by this means attained that of the people. Sensible how much this step must offend the king, and of the dangerous predicaments he must stand in should he return, he spared no pains to ascend the throne even in the life of his brother, in which he was cordially supported by the king of France. But all his efforts were baffled by the vigilance of the regency, who had been appointed on Longchamp’s deposition, and was more necessary from his continuing in his former extravagancies. John even gave out that Richard was dead, and seized several castles, which he put in a state of defence. He was, however, soon reduced, upon the king’s return, and all his treasonable practices pardoned at the intercession of his mother. When Richard came to die, he changed his mind as to Arthur, and by will appointed John his successor: an alteration, considering his former attachments to his nephew, who had never offended him, that could proceed from nothing but his unwillingness to leave his dominions involved in a civil war through the intrigues and interest of his brother.

The laws of Oleron concerning naval affairs are the only specimen of this prince’s legislative capacity. They were made at the isle of Oleron, off the coast of France, where his fleet rendezvoused in their passage to the Holy Land, and were designed for the keeping of order, and the determination of controversies abroad. With such wisdom were these laws framed, that they have been adopted by other nations as well as England. And, I think, to this time we may, with probability enough, refer the origin of the admiralty jurisdiction. In his reign, for the first and the last time, was raised the feudal aid, for the redemption of the king from captivity.

Notwithstanding all the faults of this prince, his firmness against the papal power is to be commended. Two of his bishops having a controversy, there was an appeal to the pope, who sent a legate to determine it; but Richard prevailed on the parties to refer it to his arbitration, and would not suffer the legate to enter England, till he had made an end of the business; and when he did come, the king suffered him not to excercise his legatine power in any but one single point, and that by his express permission. Notwithstanding all the steps taken in favour of John, in order to pave the way for his succession, the notion of Arthur’s hereditary right had taken such strong root in the minds of many, that, had he been in England, and of a sufficient age to manage his affairs, he might have had a fair prospect of success[385].

The lower people indeed were easily prevailed on by his agents to take the oath of fealty to John, while the prelates, and nobility in general, retired to their castles, as deliberating what steps they should take; but, at length, by magnificent grants, and more magnificent promises, they were prevailed on to come in, and he mounted the throne without opposition. But in the French provinces his usurpation met with more resistance. Arthur had many partizans, and his cause was espoused by Philip of France, the lord paramount, not with an intention to strip John of all; for that, with Britany, would have made Arthur too powerful; but with a design to divide the dominions more equally between them, and perhaps to clip off a part for himself, as he afterwards did Normandy, as being forfeited by a sentence of the peers of France, by John’s murder of Arthur. By the way, I shall observe, that this sentence was notoriously unjust. By the laws of France, Arthur was the undoubted heir of Normandy, and on his death his sister ought to have succeeded, nor ought the duchy to have been forfeited by the crime of a wrongful possessor. Or, taking it the other way, that Philip had a right to choose his vassal, and, consequently, that the investiture he gave to John was valid; then was he rightful duke of Normandy, and Arthur, as duke of Britany, was his vassal, and had justly forfeited his life, by rebelling and endeavouring to depose his liege lord. That John was guilty of this crime there was no room to doubt; and truly, from the whole of his conduct from that time, he seemed to have been infatuated by the terrors of his conscience; for it was but little less than frenzy. He knew he was, by this cruel act, become the detestation of his subjects in general, and that his father, in the midst of his power and popularity, had been humbled by the Pope; and yet, at the same time, he trampled on the liberties of the former, and oppressed them in the most outrageous manner, and while his subjects were thus disaffected, he openly set the latter at defiance.

To this reign, however, so inglorious, and so miserable to the English of that age, do their successors owe the ascertaining their liberties. He was, if we except William Rufus, the first of the kings that openly professed to rule by arbitrary power. I do not mean to deny that every one of his predecessors from the Conquest had, in some particular or other encroached on their people, but then there were either peculiar circumstances of distress, that almost enforced and excused them, or one or two wrong steps were atoned for by the greatness and goodness of their general conduct. It is very observable, that, as England is almost the only country in Europe that hath preserved its liberties, so was it the first wherein the kings set up for absolute power: and the preservation of them, I apprehend, was in a great measure owing thereto, that this claim was started there when the feudal principles, and the spirit of independency, except only in feudal matters, were in their vigour, and consequently raised such a spirit of jealousy and watchfulness, as, though it hath sometimes slept, could never be extinguished; whereas, in other countries, the progress of arbitrary power hath been more gradual. It hath made its advances when the feudal system was in its wane, and when the minds of men, by the introduction of the civil and canon law, were prepared for it.

What encouraged the kings of England to attempt this sooner than other monarchs, we may judge, was the greater disparity in riches between them and their vassals, than was in other countries; so that nothing much less than a general confederacy could curb them; whereas, abroad, two or three potent vassals were an overmatch for the sovereign. Besides, having subjects on each side of the water, not knit together in any common interest, they might hope to use the one to quell the other. But whatever was the cause, so was the fact; and John, even before the death of Arthur, having removed the dread of a competitor, shewed, by a most extraordinary step, what kind of sovereign he was like to prove. By the law of these days a vassal was to pay his relief to his superior out of his own demesnes, and the profits of his seignory, and had no right to demand aid for that purpose from his sub-vassals; John having detached Philip from his nephew’s interest, by ceding a part of his French territories, was to pay twenty thousand marks for the relief of the rest; and, to receive this sum, he, by his own authority, laid three shillings on every hide of land in England; thus making England to pay that relief for his foreign dominions, which his foreign subjects themselves were not obliged to pay.

The next instance was in favour of the Pope, under pretence of the holy war. Innocent had laid a tax upon the clergy, of the fortieth of their revenues, and sent a collector to England to gather it, whom John, of his own authority, empowered to collect it from the laity. These two impositions were submitted to, in as much as there was no plan of opposition then formed; but they afterwards occasioned great discontent among a people, who thought no taxes could be raised without their own consent. Accordingly, the next time he summoned his military tenants to attend him into France, they assembled at Leicester, and agreed to refuse attendance, unless he would restore their privileges; for though, by the law of the Conqueror, they were obliged to go, they looked upon this obligation as suspended by his behaviour. However, they had not yet sufficiently smarted, to unite them thoroughly, and this affair was made up by his accepting a scutage.

To enumerate all the exorbitancies he committed would be tedious, and unnecessary, as the remedies prescribed in _Magna Charta_ sufficiently point out the grievances. Let it suffice to say, in general, that he oppressed his military tenants by exacting extravagant reliefs, by disparagement of heirs, by wasting his wards lands, by levying exorbitant scutages, by summoning them to war, and delaying them so long at the place of transportation that they were obliged to return home, having spent all their money; or, when they were transported, keeping them inactive till they were obliged to return for the same reason, and then, without trial, seizing their lands as forfeited. The same oppressions he extended to others, seized lands and tenements at will and pleasure, imprisoned whom he pleased, laid heavy talliages on the socage tenants and boroughs, without any regard to the privileges they had obtained from his predecessors; and having, by these means excited the detestation of his subjects, and forfeited his reputation by losing Normandy by his indolence, he took it into his head that he was a match for the Pope, and engaged in a contest with his Holiness, which subjected him and his kingdom to the Roman See, tho’ eventually it contributed not a little to the recovery of his subjects liberties.[386] The manner in which this happened shall be the subject of the ensuing lecture.

LECTURE XXXVII.

_John’s dispute with the court of Rome—Cardinal Langton
promoted to be Archbishop of Canterbury—Pope Innocent lays
the kingdom under an interdict—John is excommunicated—His
submission to Innocent—The discontents of the Barons—Magna
Charta and Charta de Foresta—An examination of the question,
Whether the rights and liberties, contained in these charters,
are to be considered as the antient rights and liberties of the
nation, or as the fruits of rebellion, and revocable by the
successors of John?_

If Alexander the Third shewed the grandeur of the pontifical power in humbling Henry the Second, the displaying it in its full glory was reserved for Innocent the Third who now reigned, and who being promoted to the papacy at the age of thirty seven, had vigour of body and mind to carry every point he engaged in, and was resolved to push his power to the utmost. Having tasted the sweets of English gold, in the collection made under pretence of the holy war, he had a great desire to renew the experiment; and that he might be able to proceed with the less opposition, was resolved to have an archbishop of Canterbury at his devotion; and the See falling vacant, a controverted election furnished him with an opportunity.

The election belonged to the convent of Christ-church, though it was contested with them by the suffragan bishops. The very night the archbishop died, a faction of the younger monks resolving to have an archbishop of their own chusing, assembled, and chose Reginald sub-prior of the convent, and sent him off before morning for Rome, to obtain the Pope’s confirmation, of which they did not entertain any doubt, as it would be plucking a feather from the king’s prerogative, that of a previous licence for proceeding to election; and Innocent had already shewn that he looked on himself as monarch of monarchs. But as they could not expect the Pope would take this stride in support of a clandestine election, they all took an oath of secrecy, to be observed till the confirmation was obtained.

But Reginald’s vanity defeated the scheme, and made him divulge it, which so provoked his electors, that they joined with the others, petitioned the king for a license, and elected, at his recommendation, the bishop of Norwich, and twelve of the monks were dispatched to solicit his confirmation. The suffragan bishops opposed him, as being elected without their concurrence, which point was determined for the convent by Innocent; notwithstanding which, without assigning any invalidity in the second election, he annulled it as well as the first, and recommended to the twelve deputies to elect Stephen Langton, an Englishman and a cardinal. At first they demurred, as having no authority; but the threat of instant excommunication compelled them to obey. And then, as if they had done nothing out of the way, he recommended Langton to John in a very civil letter. The king, enraged to the highest, turned the monks of Canterbury, who were entirely innocent, out of their convent and the kingdom, and threatened the Pope that he would suffer no appeals. Innocent, who had before this humbled Philip of France by an interdict, and knew the man he had to deal with, proceeded very calmly, to order three bishops to exhort the king to receive Langton, and recall the monks; and, in case of non-compliance, to lay the kingdom under an interdict[387].

The name of interdict frightened John, who knew how much he was hated. He offered to comply, if he might be allowed to make a protestation of a saving his dignity and prerogative; but no salvo would be allowed; the interdict was published, Divine service ceased through the kingdom, except in a very few places, where some clergymen were found honest and bold enough to preach against the Pope’s proceedings. John, in revenge, fleeced the clergy in a most horrible manner; and, what is yet more surprising, did not desist from oppressing the laity. However, as to the points in contest, he was not obstinate; he offered more than once to submit; but Innocent had more extensive views. There was no remission without he refunded to the churchmen every farthing he had extorted from them, a thing absolutely out of his power. Then followed, after successive delays calculated to shew that the holy father would give his undutiful son time to repent, a sentence of excommunication by name, a bull absolving his subjects from their oath of allegiance, and commanding all persons to avoid his company; and, lastly, a sentence of deposition, and a grant of all his dominions to the king of France, who had been invited also by John’s subjects, whose patience had been by this time quite exhausted with his tyranny, and the suspension of the performance of Divine service.

Philip was very ready to execute this sentence, and assembled a numerous army. Randulf was sent, as the Pope’s legate, to see the sentence of deposition put in execution; but, in reality, with secret instructions of a very different nature; for it was by no means Innocent’s intention to give England to France, but to subject it to himself. John, terrified with the exaggerated account of Philip’s armament, and the disaffection of his subjects, submitted in every point before in contest, and in one new one, that no clergyman should be outlawed. But this was not sufficient to avert the danger from Philip, and his own disaffected barons. To make him sacred and invulnerable, he became a vassal to the Pope, resigned his kingdom to him by a formal charter, and received it again as a favour, under homage, and a yearly rent of a thousand marks.

In consideration of this submission, John was favoured in the point of indemnifying the clergy, which was what had so long retarded the accommodation. Innocent took the estimating this on himself, and having got all he wanted for the See of Rome, forgot his former clients the clergy, and was very moderate with his new vassal. However, the interdict was not removed, nor the king absolved from his excommunication, till Langton was put into possession; which when done, John was obliged to renew his homage, to swear to defend church and clergy against all their adversaries, and to make restitution; and then he was absolved. But there was one curious addition to this oath, which Langton, who was an Englishman, and a lover of liberty, certainly inserted of his own head, that he should restore the laws of the Confessor: For Innocent would never, we may be well assured, have allowed such privileges to his vassals. John, however, out of fear of Philip, being in an hurry to be absolved, made no objection; and indeed he had no reason to doubt the Pope would absolve him from his oath. But Langton and the nobles were resolved to keep him strictly to it. Soon after, while he was in France, his regents summoned a parliament, wherein the king’s peace was proclaimed, and the laws of Henry the First were revived. These were those he had sworn to restore, being in truth the Confessor’s, with a few additions and alterations by the Conqueror and Henry.

John, however, went on in his old courses, being now sure of the Pope’s protection, and indeed it was hard to charge him with a breach of Henry’s charter, of which, though copies had been lodged in every cathedral and great abbey in England, yet so carefully were they destroyed, that not one appeared. At length archbishop Langton furnished them with one, which had escaped the general calamity; and this the associated barons, who had determined to restrain John, and recover their liberties, made the basis of their demands, and swore to demand, and if refused, to vindicate with the sword, at a meeting they had at Edmundsbury under pretence of devotion. Accordingly, they waited on the king in a military dress, and made their demands; but he, seeing they were only a party among the nobles, and not imagining the rest were of the same sentiments, not only refused, but with haughtiness insisted they should renounce them, by giving under their hands and seals, that they would never make the like demand on him or his successors. But his eyes were opened when he found scarce two or three of those that were with him would comply. He had recourse to procrastination, and promised them satisfaction at the latter end of Easter. In the interim he exacted a new oath of allegiance from his subjects; a feeble precaution; for none refused it, or thought themselves precluded by that act of duty from vindicating their rights in what manner they best might. To secure the clergy, he gave them a charter, confirming their immunities, and the entire freedom of their elections; and yet a great multitude continued zealous for the liberty of the subject against him; but his main dependance was on religion. To render his person sacred, he assumed the cross, as if he intended for the holy war, and implored the protection of his Holiness, to whom the discontented barons also represented the justice of their pretensions. Innocent, in appearance, received them favourably, advised them to represent their hardships in a decent and humble manner to the king, in which case he would interpose in favour of all their just and reasonable petitions; but annulled their association, and forbad them to enter into any new one for the future.

The barons, who sent to the Pope rather out of respect than any expectation of favour, proceeded in the method they began. They and their vassals assembled in array, in such numbers as to compose a formidable army; and when they had particularly specified their demands, and were refused, they proceeded to attack him, by reducing his castles. Against himself, as being under the cross, they made no attempt. On this occasion, archbishop Langton, who was at the bottom of the whole confederacy, outwitted John; who, as they had disobeyed the Pope, was impatient to have them excommunicated, and this the Pope promised to do as soon as the foreign troops, which the king had brought over for his defence, had quitted the kingdom; but when they were gone, he broke his engagement, so that John, left defenceless, was obliged to appoint four nobles to treat with the revolted lords; and, upon conference, some points they had insisted on before being given up, the liberties of the nation were settled, as contained in the two charters of _Magna Charta_, and _Charta de Foresta_[388].

The manner of obtaining these charters, and the right the people have to the liberties contained in them, have been the subject of much controversy between the favourers of arbitrary power and the assertors of freedom; the one, contending that they were the fruits of rebellion, extorted by force and fraud, from a prince unable to resist, and therefore revocable by him or his successors; and the others, that they were the antient privileges of the nation, which John had, contrary to his coronation-oath, invaded, and which they therefore had a right to reclaim by arms. That they were obtained by force, is undoubted, and that John and many of his successors looked upon them, therefore, as of no validity, is as clear, even from the argument lord Coke brings for their great weight, their being confirmed above twenty times by act of parliament. To what purpose so many confirmations, if the kings had not thought them invalid, and had not, on occasions, broke through them; and were it as clear that they were not the antient rights of the people, it must be owned they were extorted by rebellion. But that they were no other than confirmations, appears very plainly from the short detail I have heretofore given of the constitution and spirit of the monarchy of the Saxons, and all other northern nations.

As to any new regulations introduced in them, as some there are, they are only precautions for the better securing those liberties the people were before entitled to, and it is a maxim of all laws, that he who has a right to a thing, hath a right to the means without which he cannot enjoy that thing.

The friends, therefore, to absolute power, sensible that the original constitution is against them, choose to look no farther back than the Conquest. Then, say they, the Saxon government and laws were extinguished, the English by the Conquest lost their rights, the foreigners had no title to English liberties, and the Conqueror and his son William acted as despotic monarchs. Therefore, their successors had the same right, and it was treason to think of controuling them. But how little foundation there is for this doctrine, may appear from what I observed on the reign of the Conqueror. He claimed to be king on the same footing as his predecessors; he confirmed the Saxon laws, and consequently both Saxons and foreigners, when settled in the kingdom, had a right to them. If he oppressed the English, that oppression did not extend to all; and to those it did, it was not exercised as upon conquered slaves, but as upon revolted rebels. But, for argument sake, to allow that the English became slaves, and that the foreign lords had no right to the Saxon privileges, both which are false, how came the king to be despotic sovereign over them? They were partly his own subjects, freemen, according to the feudal principles, who served him as volunteers, for he had no right to command their service in England; or volunteers from other princes dominions, and to say that freemen and their posterity became slaves, because they are so kind as to conquer a kingdom for their leader, is a most extraordinary paradox.

But William the Conqueror, in some instances, and his son in all, acted as despotic princes; therefore they had a right so to do. I answer, the triumvirs proscribed hundreds of the best Romans, therefore they had a right. It is as unsafe to argue from matter of fact to matter of right, as from matter of right to matter of fact. It is as absurd to say, Tarquin ruled absolutely, therefore the Romans were rightfully his slaves, as to say the Romans had a right to liberty under him, therefore they were free.

But it may be said, the people quietly submitted, and new rights may be acquired, and new laws made, by the tacit consent of prince and people, as well as by express legislation. I allow it where the consent is undoubtedly voluntary, and hath continued uninterrupted for a long space of time; and how voluntary this submission was, we may judge from the terms they made with Henry the First, before they suffered him to mount the throne. Besides, there are some points of liberty, essential to human nature, that cannot, either by express or tacit laws, be given up, such as the natural right that an innocent man has to his life, his personal liberty, and the guidance of his actions, provided they are lawful, when the public good doth not necessarily require a restraint. In short, never was there a worse cause, or worse defended; and this maxim was what influenced the conduct of the Stuarts, and precipitated that unhappy house to their ruin.

John, who entertained the same sentiments, had no resource to recover his lost rights, as he thought them, but the assistance of the Pope, and an army of foreigners. The first very cordially espoused his interest. He was provoked that he, who had humbled kings, should be controuled by petty lords, and that by these privileges he should be prevented from reaping that golden harvest he expected from England. He annulled the charters, commanded them to recede from them, and, on their disobedience, excommunicated them, first in general, and then, by name.

About the same time arrived an army of veteran foreigners, that came to assist John, who had, in imitation of the Conqueror, distributed to them the estates of the barons. With these and a few English lords, he took the field, and ravaged the country with a more than Turkish barbarity. The confederate barons saw the liberties they had contended for annulled, their lives and estates in the most imminent danger, and, in a fit of despair, invited Lewis, prince of France, to the crown, who, bringing over an army, saved them from immediate destruction. However, this strengthened John. It was not for any to stand neuter. Few chose to embark in an excommunicated party, and many, who saw slavery unavoidable, and nothing left but the choice of a master, preferred their countryman for a king to a foreigner. The loss of liberty now seemed certain, which ever prevailed; when the haughtiness of Lewis, and his want of confidence in the English noblemen who joined him, concurring with the death of John, and the innocence of his infant son, providentially preserved the freedom of England.

LECTURE XXXVIII.

_The minority of Henry III.—Ecclesiastical grievances—The
dispensing power—The canon law—Confirmation of Magna Charta—A
commentary on Magna Charta, in so far as it relates to what now
is law._

John left his minor son under the guardianship of the earl of Pembroke, a nobleman of great abilities, and the strictest integrity. The first step he took for the benefit of his pupil, was the confirmation of the charters, and the next was a negotiation with the revolted lords, who began to be discontented with the prince of France; which succeeded so happily, that in a short time he brought them all over with very little bloodshed, and Lewis was obliged to quit the kingdom. Peace being re-established, the regent applied himself with all diligence to restore the peace of the kingdom, and justice to her regular course: And had he lived long enough to form the conduct and principles of the young king, England never had a fairer prospect of happiness; but he soon dying, and his successors being men of a different stamp, such principles were sown in the monarch’s mind, as, in the event, produced bitter fruit both to him and the whole kingdom.

This reign was as calamitous as the preceeding one, and rather more shameful; and what added to the misfortune, it lasted three times as long. As soon as Henry came of age, he revoked _Magna Charta_, as being, an act of his nonage, soon after he confirmed it, then broke it, then confirmed it by oath, with a solemn excommunication of all that should infringe it; then he obtained from the Pope a dispensation of his oath, and broke it again. And thus he fluctuated for fifty years, according as his hopes or years prevailed. However, in general, the charter was pretty well observed. The great point it was infringed in, was the levying money without the parliament, and in this he frequently prevailed, being assisted by his Lord Paramount, the Pope. They joined in levying taxes, and then divided the spoil between them. Indeed, their Holinesses had, upon each occasion, by much the greater share; for they not only fleeced the clergy separately, but drew vast sums from the king, on pretence of a foolish project of making his younger son king of Sicily; all which they squandered on their private occasions.

In this reign they introduced the practice of provisorship, against which so many acts of parliament have been made. It went on this maxim, That the Pope was universal pastor of the church, and consequently sole judge who should be his deputy in any particular place. The inference necessarily followed, that the rights of patronage to livings, whether in a Bishop or lay patron, were, strictly speaking, no rights at all, being such only where the Pope did not chuse to interfere. But this privilege would have been of little significance, if they could act only in the vacancy of a living; for it would generally have been filled up before he could have notice. Bulls of provisorships were, therefore, invented. These were charters of the Pope, directed to the bishop, acquainting him, that he had provided for such a person, by appointing him to such a benefice, when it should become vacant, or the first benefice of such a value that should fall; strictly forbidding the Bishop to admit any other person, upon any account whatsoever. Sometimes the person provided for was not named; but notice was to be given when the vacancy happened. In process of time a number of livings were resolved in the same bull; nay, one went so far as to forbid any living that should fall to be filled, till the Pope had provided for three hundred persons. Such were the delightful consequences of John’s homage, and of England becoming St. Peter’s patrimony; so that the monkish historians tell us that Rome sheared all Europe; but in England they flayed off the skin. An account was taken at one time of the value of English benefices possessed by Italian priests, non-residents, and it was found to exceed the ordinary revenue of the crown. All these bulls concluded with a non obstante, that is, notwithstanding any laws, custom, privilege, right or patronage, or any thing else whatever; and this hopeful precedent Henry the Third adopted in his charters, thereby, if he could not repeal, at least making ineffectual the laws of the land; and thus began the king’s claiming a _dispensing power_ over the laws[389].

In this meridian of the Pope’s power was the canon law introduced into England, and it soon began to usurp considerably on the civil courts; insomuch that, had not the common law judges exerted themselves to check the ecclesiastical court by prohibitions, which they did even in this reign, it would have gained the same ascendant that it has in the Pope’s territory.

The latter end of this reign was filled with a succession of troubles, occasioned by the repeated breaches of the charters, and fomented by the ambition of some of the great nobles; however, in the end, the king prevailed, by the assistance of his son; but it was found expedient, even in the midst of victory, in order to prevent future convulsions, to establish the liberties of England, by confirming _Magna Charta_; and they have ever since stood their ground. I shall therefore proceed briefly to speak to _Magna Charta_, and in so doing shall omit almost all that relates to the feudal tenures, which makes the greatest part of it, and confine myself to that which now is law.

The first chapter of _Magna Charta_, as confirmed in the 9th year of Henry, which is that now in force, and differs from that of John in some omissions, concerned the freedom of the church, in which was principally included the freedom of elections to Bishopricks, which, since the reformation, has been taken away. I shall, therefore, proceed to those that concern the laity; the five next are feudal, and the seventh is concerning widows. It first gives them free liberty to marry or not; whereas, before, such as were called the _king’s widows_, that is, those who held lands, or whose husbands held lands of the king, had been obliged to pay for license to marry if they had a mind, or were distrained to marry, if they had no mind, which it is unnecessary to say was a grievous oppression. It restrains the taking any thing from the widow for her dower, or for her own land, which her husband had held in her right. It provides for her _quarantine_, that is, gives her leave to stay forty days in her husband’s house, unless she had dower assigned to her before, and within that time orders the third part of her husband’s land to be assigned her by the heir, as her dower; and that, in the interim, she should have reasonable estovers[390].

The next is in favour of the _king’s debtors_, and their securities. By the old law, the king’s profit was so highly favoured, that he could, to satisfy his debt, seize the chattels or extend, that is, take the profits of the real estate of his debtor, at his pleasure; or he might, in the first instance, come on the security, without attacking the principal debtor. For remedy hereof, it forbids the king, or any of his officers, seizing the land, while the debtor’s personal chattels are sufficient. It forbids, also, the distraining the securities, while the debtor’s chattels were sufficient. If they were not, the king had the option either to seize the land of the debtor, or distrain the securities; and if the latter was done, it provides, that the securities should have the land, until they are reimbursed. Immediately after this, in king John’s charter, followed the law prohibiting the king from levying any talliage or tax on the socage tenants, or on boroughs, without assent of parliament, which is here omitted; and this king and his son Edward asserted and exercised the right; but the last was at length obliged to give it up, in the famous statute _de tallagio non concedendo_, and not till then were these ranks of the people entirely emancipated. This omission for a time rendered illusory the next, the ninth chapter, which provides that the city of London and all the other cities, boroughs, and ports, should enjoy all their ancient liberties and customs; for these would be of little use whilst arbitrary taxation remained. The tenth is in affirmance of the common law, that no person should be distrained for more rent or services than he owed out of the land. If he was, he had a double remedy, either by _a suit in replevin_, or by the writ called _ne injuste vexes_. The next is for fixing the court of Common Pleas, of which I spoke already. The twelfth was for the ease of the people, by taking assizes in the country. But those actions are out of use now. The thirteenth is concerning assizes too. I hasten therefore to the fourteenth that treats of _amerciaments_.

Amerciaments come from the word _mercy_, and are so called from the words in the record, _sit in miserecordia pro falso clamore suo_, and were properly, though the word hath been since extended, what a plaintiff or defendant that had troubled the king’s courts should pay by way of punishment for maintaining an unjust suit; whereas _fines_, to which they bear a resemblance, and with which they have sometimes been confounded, were for offences, and assessed by the court; as were amerciaments also sometimes, and very grievously, though entirely against law. This act restores the common law; orders the amerciaments to be proportioned to the nature of the case, and also, in regard to the man’s circumstances, so that he should not be ruined thereby; that no freeholder should be amerced in so heavy a manner as to destroy his freehold; no merchant, his merchandize; no villain, his carts, whereby he would be unable to do his lord’s services; no ecclesiastic according to the value of his benefice, but only according to his lay property. And that this might be constantly observed, the amerciaments were to be asserted, or settled by the man’s peers. It may be asked, what remedy had the man, who was too severely amerced by his peers? On this act was grounded the writ of _moderata miserecordia_, whereby this amerciament may be tried by another jury, and moderated.

The fifteenth provides, that none should be distrained to repair bridges, or landing places, but who are bound by their tenures or custom. The sixteenth for the free navigation in rivers, and unloading of goods. The seventeenth takes away the power of trying pleas of the crown from sheriffs, constables and coroners, and other inferior officers; a very necessary law, upon account of the great value of the life of an individual, especially as none but the king’s courts could give the benefit of clergy. However, sheriffs and coroners can take _indictments_; for that is not _trying_, but bringing the matter into a method of trial. The eighteenth concerns debts due to the king where his debtor is dead. By this law, the first duty of executors is to pay the debts of the deceased; those of the highest nature, not as to _value_, but in _quality_, in the first place, then the lower ones: and if the effects were not sufficient, it was in their option to pay one creditor of the same nature without another, so that they observed the rule of not paying the lower debtor before the higher. But the king, be his debts of what nature they would, by his prerogative, had the preference of all creditors, and by colour hereof his officers often seized and embezzled the effects of the deceased, to the prejudice of other creditors and legatees. This orders the sheriff to attach and value the goods by a jury of twelve men, to the value of the debt, which were to remain unremoved, till the king was paid; and then the whole, or, if not, the overplus, to be restored to the executors. The two next are feudal. The twenty-first relates to purveyorship, which has been abolished.

The twenty-second relates to the king’s right to the lands of felons. On which there is something curious to be observed. By attainder of felony, the goods and chattels of the felon are forfeited to the king, and the land to the lord from whom they were holden; but in case of treason, both were forfeited to the king. Such was the feudal law; but by the law of England, in order to deter persons from committing felony, and to make the lords more careful what kind of tenants they chose, the king had an interest in the land of felons; not for his own benefit indeed, but for the terrifying by example. He had a right to commit waste in them, to cut down the trees, to demolish the houses and improvements, and to plow up the meadows; and for this purpose he was allowed, by common law, a year and a day. To prevent this destruction, the lords, to whom the land escheated frequently, by a fine, bought off the king’s right of waste; but if they did not, his officers would take the profits for the time, and then hold it longer, till they had committed the waste. This act prohibits the retaining the land longer than a year and a day, and directs that then it should be restored to the lord. This new law was certainly intended for the public good, to prevent this malicious wasting, which the king’s officers would be sure to commit, if they were not properly, as they thought, considered; and to give the king, in lieu of the waste that he had a right to make, a lawful profit, which his officers had unlawfully, to their own use, we may be sure, extorted before. It gives the custody of the lands for that time, and consequently the profits. But observe the consequence.