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to the age of Methusaleh, and Bri- of oppression commonly brought to tain might be held up as the envy justify the opposite sentiment are and model of the world.
taken froin a class of men who never I remain, &c. constituted a part of the nation, no
W. BURDON. more than the ilelotes constituted a Hartford, near Morpeth, Oct. 9. part of the Lacedemonian repúblic.
The treatment of these people who
were first a private property, and MAGNA CHARTA INFRINGED BY afterwards attached to those lands
PRIVILEGE OF PARLIAMENT, where they were bound to perform a AND THEN QUOTED IN SUPPORT tributary but limited labour, may OF THAT VERY PRIVILECE: be a reflection upon the diabolical AN INQUIRY INTO
practice of war in ancient times, THE ENGLISH CONSTITUTION.
which was universally supposed to
give the victor a right of property in LETTER X.
the person of the vanquished, but
can be none against the principles MR. Editor,
upon which our ancestors founded The pure and legitimate origin of their constitutional freedom. By British liberty is a point upon which Magna Charta no great baron obit behoves us to be as jealous as if tained any power which he had not the legitimacy of our own descent befure; and the most indigent free was called in question. Every one man, he who possessed no other proknows the artifices that have been perty but that of his person, was seused by the tories to affix the infamy cured in all the rights we now enof a base birth to our constitution, joy, and even in some that we hare to make it the offspring of unlawful Tost. I might ge still farther and violence, or the gratuitous conces- say, that this charter was as much sion of royal favour:--in the first a check over the power of the great case it would have drawn its origin barons as it was over that of the from injustice; in the other, it would King himself, whilst the party inhave been exposed to uncertainty, tended to be benefited the most by it for what is held by favour may be was the vast body of English freerevoked, if the parties, to whom it men, though some protection is even is conceded, should prove unworthy. intended to the villain binself by this The parties who with King John nobie institution. formed that famous contract which I brought some quotations in a still remains the foundation stone former letter in order to shew that upon which the edifice of the con- the barons who contracted with King stitution reposes, have been most John were the free men of the whole', foully abused by these same per- kingdom : indeed the instrument ita sons; -many men even of moderate self says as much-—“ We grant to principles have been misled in this “ all the freemen of our kingdom for instance. Rapin calls them turbu. “ ourselves and our heirs for ever"&c. lent barons, and many conceive that This body of freemen when encamptheir object was to set up their own ed at Runncmede, was also called a domestic tyranny in competition body of nobility, so very numerous, with the despotism of the monarch. that it was impossible to count
These ideas are very ill founded: for them; and for this we have the very my own part I am convinced, that best authority, that of Matthew Pathere existed in those ancient times ris. The fact, however, ought not a much greater degree of freedom to surprise us, because, among all zhan at present. All the instances the Celtic nations, the first nobility
zrose from the personal distinction stitution of St. Edward's laws, as between slavery and freedom. , Al- the author just quoted remarks, to though the proofs I brought forward which proof may be added several were, I presume, sufficient to esta- passages from M. Paris, as that blish this point, and a most impor- where he says, “ petierunt (meaning tant point it is, yet I shall now add “ the barons) quosdam libertatis et one more, because it goes to shew, leges regis S. Edwardi confirmari; Jot only who the parties were that urging to that effect the king's procontracted with King John, but also mise at Winton, when illas leges et what was the object meant to be as- libertates promiserat.* şared by that contract." The first In short there is no historical fact " Henry that ever reigned here did better established than that Magna “ not only at his coronation promise Charta is in the spirit of its institu* restitution of St. Edward's laws, as tions completely Saxon, a compileCwe call them, but also delivered ment of the most important points - out his free charter of the grant of of the old common law of England, " the same, in which, as M. Paris of those good, approved and ancient " reporteth, he acknowledgeth that laws, as Matthew Paris in his Lives "he was crowned by the common appended to bis History, p. 30, calls U council of the barons of the realm; them; and which, he tells us, Wil. " and there it may haply seem liam the Norman swore to abserve. “ strange to affirm that this was a Lord Somers, likewise, in a passage & full parliament; in the which before quoted, I calls Magna Charta " there is no mention but of these the recognition of what had always « barons only: but if it be consi- belonged to us by common law and
dered, first, that the Germans ex- immemorial custom; what had been " pound the word BARO by Free the subjects birth-right in Saxon “ heere, or Freeman, then, that M. times, and was confirmed and rati« Paris saith that the citizens of fied as such by William the First. “ London were at that time called Lord Clarendon, another great law“ barons, and also, that even yet, yer tells us likewise of William's 6. burgesses of ihe Five Ports do pass confirming to the English their laws " under the same name of barons, and liberties and free customs, in a " and that every man almost hath passage before quoted. Lord Coke, " his court baron, it shall not be al, also, who has been called, not an * together without ground to say oracle of the law, but the law itself, * that both the nobility and com- says in his preface to his 8th. Report
mopalty of the realm were meant --" The grounds of our common Grunder these words the barons of “law are beyond the memory of any " the realm."*
“ beginning, and the same which 4. I might also bring another quota “the Norman conqueror then found tion from Lambard's Archæon, to " within this realm of England.” shew the same thing, that the barons Need I also quote Sir Henry Spel. of England meant all the freemen of man, who has the following passage. England; but I esteem what has “ This constitution of Edward the been said first and last on this sub- “ Confessor was confirmed by Wilject must be enough fully to satisfy “ liam the Conqueror, as not only your readers, who were the parties “ Hoveden and those ancient authors that contracted with John. Now as “ testify, but the decree of the conto the object of that contract, it was most undoubtedly by the plenary re
Hist. p. 176.
† Pol. Rev. Feb. 1810. p. 58. * Hist. Dis. on l'arl. p. 24. Ibid. April, 1810, p. 304. § 16. p. 213,
“queror himself in these words,- wardi propinqui nostri fecit in Anglia “ Hoc quoque præcipio ut omnes ha- particeps consuetudinum Anglorum * beant et teneant legcs Edwardi in quod ipsi dicunt Anhlote et Anscote " omnibus rebus adauctis his quce con- persoloat secundem legem Anglorum. “stituimus ad utilitatem Anglorum. That every Frenchman should be “ This likewise I enjoin that all men governed by the English law who “ shall hold and keep the laws of was in England in the time of Saint “ St. Edward, with those additions Edward, and partook of the English
which we have made thereto for custom called Anhlote and Anscote, os the good of the English nation." that is, Scot and Lot. This which Sir H. Spelman calls a But it is unnecessary for me to decree, is, hy most writers, called multiply quotations : one, however, William's charter. There is one more from Lord Somers, is so compendious, evidence that I cannot omit, because though brief, that I cannot omit it: he is a most unexceptionable one, I “Florence of Worcester, Simon of mean Ingulphus, who was William's “ Durham, and R. Hoveden expresssecretary when in Normandy, and “ly say, that William, called the was made by him abbot of Crowland: “ conqueror, made a league or comboth the latin passage and transla.“ pact with the archbishops, bishops, tion are given in the Argumentum “ earls, and nobles of the land, who Anti Normannicum, p. 29. I shall “met hiin at Beorcbam, and swore content myself with copying the lat- “ fealty to him, so he reciprocally, ter. “ I brought this time with me “ being required so to do, made his “ from London (where he had been “ personal oath before the altar of “ about the business of his monas “ St. Peter. The original compact, u tery) the laws of the most just king“ saith M. Paris, was, that the king " Edward, which my lord William, “ should govern them according to “ the renowned king of England, " the good, approved and ancient “ had proclaimed authentic and per- “ laws of the kingdom,--The liber « petual all England over, to be “ties in which the nobles confided " kept under most grievous penalties,” saith M. of Westminster :- the " and commended to his justices in “ laws of their country saith W. of " the same tongue they were set forth.” “ Malmesbury :-- the laws of King
Thus Sir Winston Churchill ob- “ Edward say also these authors :serves of this supposed conqueror, “ the proper laws and customs in that he suffered himself to be so far “ which their forefathers lived, say conquered by them (the English) “ Hoyeden and the Chronicle of that instead of giving to, he took “ Litchfield."* Is it not evident the law, from them, and contentedly from hence that the government on bound bimself up by those which the Norman accession was not foundthey called Saint Edward's laws.t ed on conquest but compact ? Nay this same Duke William, in These premises are sufficient to stead of taking from the English their justify the conclusion I mean to free customs, was anxious to secure draw from them, that Magna Charto the foreigners in England all the ta was po novelty, no innovation, benefits of the English constitution; no encroachment upon the crown, as we learn by one of his laws, quoted no sanction to the petty despotism by Taylor in his History of Gavel falsely imputed to the great barons kind, p.78. This law ordained that over the other free men of the kingOmnis Francigena qui tempore Ed
* Somers's Judgment, &c. p. 24,25. Law Terms, p. 28.
Ed. 1710.-I am happy to see adverti. † Divi Britanuici, fol. 189. sed a new one.
dom. Neither was it a concession, Thesc liberties, or, as Mr. Burdon grant, or favour, derived from the calls them, privileges, were originally good will of the king, but a right derived, not from the crown, but that never had been out of the peo- from free customs beyond the memory ple; it was their old inheritance, of any beginning, as Lord Coke extheir indisputable birthright, which presses it, and the charters were no the Norman conquest, as some have more than confirmations of these anbeen pleased to call it, instead of cient rights, not creations of them. depriving them of, did but more so. They were, says Lord Somers, not. lemnly confirm and ratify. Magna the grants and concessions of our Charta is exactly similar to the Pe- princes, but recognitions of what we tition of Right in the time of King have reserved unto ourselves in the oriCharles, and the Bill of Rights in ginal institution of our government.* that of William III. they were all Now, Mr. Editor, according to my declaratory laws intended and made way of thinking, it has no influence for the special purpose of reviving whatever on the real merits of the the fundamental principles of our case, whether our kings made these constitution; and ascertaining the recognitions willingly or unwillingly: rights of the people against the en- according to the constitution of this croachments and corruptions intro- land they could only govern agreeduced by the executive government: able to these ancient laws, and when so far from being the gratuitous con- they governed otherwise, when they cessions of a King, these very pri- violated the constitution, the people mary institutions themselves ordain, as justly entitled so to do, vindicated that if the King does not govern ac- their native rights by some act that cording to the fundamental laws, he should serve as a recognition of shall not even retain the name of a them. These enactments met with king:-ncc nomen regis in eo constabit, no opposition in a new Prince, who say the laws of Saint Edward, and owed his crown to the demerits of a Bracton and Fleta bave copied those former one, as William III, Henry awful words--He is no king who IV, and Edward III; during whose does not govern according to Magna reign in particular, the constitution Charta :-that, Sir, is the English was fortified by many admirable out. constitution.
works; whereas in William's time I have been much surprised, Mr. the theory of the constitution was Editor, to read in your number for only asserted in the Bill of Rights, August, p. 130, an assertion made but never acted upon; and Henry's by an old acquaintance, whose can promising reign was too soon inter
dour will, I doubt not, pardon my rupted by civil discord: but when • correcting his error, for it certainly these recognitions, or resuscitations
is one. “Let it be remembered," as we may call them, of infringed says Mr. Burdon, “ that the privi- and expiring rights, were brought “ leges of the commons were origin forward by the people in such reigns “ ginally derived from the crown; as those of John, and Charles, how “ for though our Saxon ancestors could it be supposed that the same
were free, yet so much of that free- hand which had inflicted the wound 'dom was lost by the conquest that would spontaneously hold forth the “ all the charters obtained from the balm that was to revive and restore “ Norman monarchs were only for the constitution? Who can imagine “ced from them by their necessities.” that such would be tyrants as John It is a common mistake to suppose our liberties derived from the char Pol. Rev. for April, before quoted, ters, whereas they preceded them. p. 304.
and Charles were, would ever have“ disposition of new things, that were signed Magna Charta, or the Petre “not in being before, for how could tion of Right but from necessity?“ King John give as a new gift to And who but the rankest tory, which “ the city of London, or other cities, I am sure Mr. Burdon is not, will “and sea ports, &c. their ancient deny that it was to this happy ne “ liberties, which were theirs for cessity that the English nation owed “ages before King John was King? on these two particular occasions "}low could King John give or dise the salvation of their freedom ? ' “ pose of other men's properties, or
Though Mr. B's opinion is un “ questions of properties, between questionably wrong, yet it is entitled “ guardians and their pupils, or beto some respect, for it is countenan. “tween widows, and the beirs of ced by the very words of the Char- “ their husbands, or between lords ter itself, concessimus &c. but Sir " of manors and their tenants, or Roger Acherley has construed this " between creditors and their debtors, ---we have agreed. I shall give you, “ or make dispositions of the estates for the entertainment of your rea. “ of men dying intestate ?"* ders, Sir Roger's reasons for so doing. To this observation which is cer
“ It is expected that an objection tainly well worthy of attention, I “ will be made to the translation of shall add another. It was evidently “ this Charter, namely, that the word the aim of the people to give these “ concessimus in Charters or deeds revisals of their old laws, becoming “ properly signifies a gift or dispo- disused and obsolete, all the legal “sition of something, that the do- force and solemnity imaginable. We “ nor had to give, and which the may recollect the discontent it gave “ donce wanted or had not before, the nation when Charles the first “ whereas that word concessimus is evaded for soinc time passing the “ here rendered to signify an agree- petition of right with the same "" ment, or concession to allow or forms and ceremony as commonly “ observe something that was in be- used in passing a bill of law; now “ing, or in esse before. Answer. that our forefathers meant not only “ The latin verb concedo, signifies to make Magna Charta a law, but " as much to contract, as to give; an irrevocable law is most certain. " and is as properly used in cove. The usual form of making laws was * nants or contracts as in gifts or by the prayer of the commons, and “ dispositions ; for in common con- the concession or consent of the " tracts or agreements the common King. The words used on this oc“ form is thus. A. covenants grants casion to ibis day, have the same 66 and agrees with B; or A. cove- sense as the word, Concedo, le Roi “ nants promises and grants to and le veult, or else, le Roi s'avisera to a " with B to do such or such a thing: private bill, soit fait comme il est “ There the word concedo or grant desirć; it was a part of the courtesy " sounds in contract to yield or a- . of the nation towards their kings - gree to give up something conten- never to address them but in the “ ded for: so in this Charter the way of prayer or petition. Alfred “ word concessimus sounds through in the preface to his laws says, that " out as a contract, or engagement they were made by consent of his “ to administer the government ac- people, for that otherwise he did not “ cording to the rights of the people dare to do it. Fortham je ne durst 66 there set down; it being inconsis- gedyrst læcan, are the Saxon words “ tent with common sense to con- quoted by Bohun, p. 32. Though "s struc the word concessimus in this “ Charter to signify a new gift, or • Britannic Coustitution p. 211. volivui.