86 66 66 this was, from the very beginning, the modus condendi leges, among our ancestors, and still remains so, or is supposed to remain so; yet the respect our forefathers had for monarchy made them courteously join the Suaviter in modo to the Fortitor in Re, and thus we find that although nothing could be done without the consent of the people, yet that consent was couched in the form of prayer or petition. Thus we are told" before printing, all the "ordinances affirmed by the royal consent were recorded, and then published under the great seal of England, with a general preface, "and proclaimed in every shire, and ordinarily the form was thus; the king, such a day and such a place, by the advice of his lords spiritual " and temporal, and at the special "instance and request of the Commons assembled in parliament, "bath made and established these "ordinances, acts, and statutes, to "the honour of God, the good of "the King and realm, in form following, and then sets forth every "act in particular chapters." In short every act of parliament still preserves the form o a petition. Af ter stating the object it says, may it therefore please your Majesty, that it may be enacted, and be it enacted and so forth. But suppose it should not please his Majesty, suppose the answer should be Le Roi s'avisera, and after advice taken he should by writ give his consent, after dissolution of parliament, the act becomes a good act. It is very true, what Mr. Burdon says, that such expressions occur in the renewal of the Charters, or grants as he calls them, by our kings as the first act of their reigns &c; but this only shows the anxiety of the people for the preservation of their undoubted rights, as some of our kings, to make sure of the matter were crowned over and over again. The people on these occasions were obliged of course to comply with parliamentary forms: to have violated the courtesy used on such occasions, would only have deprived these acts of the sanction and solemnity of law. We have seen that the laws are affirmed by the King's concedo; hut after that is granted it cannot be retracted; though he can affirm, he cannot afterwards disaffirm; that can only be done by the concurrènce of the three estates; and good care has been taken, that even the three estates united, cannot annul, or infringe Magna Charta: this was necessary to ensure the entail, to render it an heirloom,* an inheritance to us and our children for evermore. What I mean to insist upon here is, that the royal concedo, in this case, is a statutable concession, and therefore became an irrevocable one from that circumstance alone, had it not even been made so by other means: for the Great Charta of King John is a declaratory law; as much an act of parliament as the charter of Henry III. which is placed at the head of our statute book; and the reason why both are not there, is, that for ages there was no memorial of John's charter but that copy of it recorded in Mathew Paris, which was not thought sufficient authority to give it a place in the statute book; at last, however, that copy with the great seal attached to it, was found, which is now in the Cottonian Library. It has been amply proved that our kings govern by con tract; and Magna Charta is that contract: it may justly be called likewise the original contract, for it is no more than a revival of that old contract which has existed beyond the memory of any beginning, and is * A word derived from heir and ge Antiquity of the Parliaments of loma, and means goods of any kind atEngland p. 59. tached to the freehold. set forth in King Edward's laws, wherein it is said, that if the King shall break it, nec nomen regis in ev constabit ;-it is that same contract, renewed, and confirmed, by act of parliament. It is an act, therefore, that takes no right from the King, and confers no new one upon the people; it restored those primordial laws and customs on which the government was, and still continues to be, founded: for, as Sir John Fortescue tells us, there can be no lawful government in this country, but that which is conformable to these fundamental institutions. They were restored, as the charter itself informs us, ad sopiendam discordium, to put to sleep discord: that discord which had naturally, and very properly too, arisen, when it was found that the successors of that great King, William I. falsely called a conqueror, did not govern according to those" ancient, good, "and approved laws and customs," which he solemnly confirmed. To silence for ever such discord was this new agreement made, and the ancient constitution renovated; a security often practised by the free nations of ancient times, particularly the Jews, who are said to have " “newed the kingdom," by similar august ceremonies. How could this renovation be effected so well among us as in a solemn parliamentary way and therefore it is quite natural that the usual legislative ceremonies should be adhered to, and the same remark will hold good respecting all those confirmations at the beginning of each reign, when the nation, very laudably, renew "ed the kingdom," that is the constitution of the kingdom, a practice which we may to our sorrow, regret not having scrupulously adhered to. I have been the more particular on this subject because it behoves Englishmen at all times, but particularly at present, when this sacred contract, instituted for the express purpose of securing to the people 66 re 66 their rights, is invaded by the very men whom they have chosen to guard and protect them in the enjoyment thereof-it behoves them to have a clear and distinct idea respecting the nature and the contents of Magna Charta: it beboves them to know that there is nothing in that instrument that was not a part of the subject's birthright in Saxon times nothing there but what has been the hereditary franchise of Englishmen from beyond the memory of any beginning, and which is so secured, sworn to, and entailed on us and our posterity for evermore," (to use the words of Lord Somers) that no power upon earth can ever deprive us of it, but by fraud or violence. We have memorials which tell us when the Saxon monarchy began in this island, the Danish monarchy, the Norman monarchy, the house of Tudor, the house of Stuart, the house of Orange, and last the house of Brunswick; but we have no memorials that can tell us of the origin of those franchises recorded in that sacred contract: the most learned men in these matters have told us, that they are beyond the memory of any beginning, that the source from whence they have flowed down to us, is as indiscoverable as the head of the Nile. Yet this sacred contract, this sanctum sanctorum of English freedom in which is contained the rights of both king and people, is now treated with contempt, by men who have no other power but that which they derive from the people themselves: these trusty persons have set up against the rights of those constituents to whose favour and election they are indebted for their political existence, a'privilege of their own making, an upstart of about a century and a half, a miscreated unholy thing, breathing poison and destruction, towards those popular rights of which Expression of Sir Matthew Hale. they are the constitutional guardians! and thus fair freedom, entrusted to their care, is to be stung to death by a viper, which these faithful keepers have themselves hatched and fostered for that honourable purpose! There is in this attempt against British freedom something not merely nefarious, but also absurd and ridiculous. Is it not absurd to say, that a privilege which is not above a hundred and fifty years old is a part of the lex terra? Is it not ridiculous to say that such a mushroom privilege was meant to be reserved by the words of the Great Charter, and that its interests were carefully protected and guarded by an exception or salvo in its favour, and expressed in that very clause whereby that franchise it subverts, the trial by jury, is assured to the people. Surely, Mr. Editor, if this could be established, it would be a masterpiece of legal juggling! Lord Coke says, Magna Charta is such a fellow that he will not bear an equal, much less a superior. Ah Sir! that might be the case when the good gentleman was in his prime; but now he is old, thrown aside, disregarded, treated with contempt, alas Sir! with worse than contempt! He was born the 15th of June in the year 1215, a day that every true Englishman should commemorate; it is now nearly six hundred years ago; his saucy competitor owes his existence to the disorders which befel this country in the reign of Charles I. so that Magna Charta is above four hundred years this upstart fellow's senior; yet docs he take over him the airs of an elder brother; nay,, he pretends that Magna Charta came into the world under the humble pretensions and hard restrictions which are the lot of younger brothers in general, who are not to infringe the rights of the elder born; and that in the family settlement a salvo to this effect was actually inserted in his favour. Thus would this intruder, of mushroom extraction, not only usurp the place of Magna Charta, but bring him forward as a witness to establish his pretended prior right, make him give testimony against himself in behalf of the sincerity of a thing, which was not known to exist, during the greater part of his life time, and which no one could ever have then imagined likely to exist. What would Lord Coke have said had he seen Magna Charta treated in this manner, had he beheld him so degraded, reduced to serve that vile office which fellows with straw in their shoes have been reported to perform in Wesiminster Hall? and against his own reputation too!-to damn his own cause; Magna Charta made to give testimony against the rights of the people, after having been near six centuries their faithful guard and protector! Magna Charta brought, in spite of his teeth, to serve as a witness against trial by jury-He who prevented the longest sword, that thing first introduced by the Normans called judicial combat, from confounding might with right he who restored, in those mad tilting times, the sober decision of twelve honest impartial men, together with other laudable Saxon customs, which, as the excellent Lord Somers says, were first collect ed into a body by King Edgar the Saxon, and afterwards revived by the Confessor.* He it is to whom we owe all this, and yet he is now made the sanction of usurpations as opposite to this as heaven is to hell. King Edgar, Sir, began to reign in the year 959; but I have a book before me that shews the trial by jury to be still older than that period. Al fred began to reign in 872; some suppose him to have been the institutor of this noble franchise so long and so justly prized by Englishmen ; he * Pol. Rev. April, p. 305. was, however, but the restorer of this, and other excellent home-borne institutions, of which we cannot discover the commencement. I have, if I mistake not, Mr. Editor, introduced to the acquaintance of your readers, some of those ancient worthies of the law, whom the good King Alfred exalted; there are three more, Cadwine, Marhes, and Freburne, whose names he has transmitted to posterity, by punishments for what in the present age may scem extraordinary, not sufficiently respecting the trial by jury. 66 66 66 "He hanged Cadwine because "that he judged Hackwy to death "without the consent of all the jurors; and whereas he stood upon the jury of twelve men, and be 66 cause three would have saved him against the nine, Cadwine removed "the three, and put others upon the jury, upon whom Hackwy put 66 not himself." Fie for shame my Lord Judge Cadwine! why this was "murder committed with the sword "of justice," as was said in Algernon Sidney's case, See! how soon the English were taught to know the value of trial by jury! See what judges have been, and always will be, without a firm, steady, impartial jury! But for the others. "He hanged Marhes because he judged Deering to death, by twelve men "who were not sworn." Now Mr. Editor, we perceive the value attached to the life of a man in Saxon times: he was not to die, but on the unanimous verdict of twlve men, sworn. "He hanged Freburne because he judged Harpin to die, "whereas the jury were in doubt of "their verdict, for in doubtful cases one ought rather to save than to "condemn."* Look Mr. Editor, look I pray at this! a jury were to be all of one mind, they were to be duly sworn, and they were to have no doubt: * Home's Mirror, p. 239, 240. they were not to be over-ruled, not to be led by the nose! the judge that dared to do this, was punished with a halter;—would to God that every judge who has since dared to mis-lead a jury, had met that fate; how many whose names we hear now mentioned with a sort of awe, would then be consigned to infamy?—- Does not all this prove that our Saxon ancestors well understood the inestimable value of this ancient institution? The reign of Alfred was England's golden age; and at that time we see the trial by jury was paramount; now it must strike sail to an upstart, a mere excrescence, sprung from the civil dissentions in King Charles's time; is not this a horrible fall off? and this fungus that has attached itself to our venerable constitution, is called a fundamental part thereof! As well might we say that those frequent humours in the body which foul diet engenders, and a proper regimen would cure, are a part of a man's physical constitution. For want of a proper regimen inCharles's time, the government became oppressive, and despotism was opposed to despotism. This collision produced the privilege in question, which some would now father upon the lex terræ; but Sir, give me leave to say that it is as much the offspring of the lex terræ as the boil upon my uncle Toby's seat of honour, of which we read in Tristram Shandy, was the legiti mate progeny of my said uncle Toby. I will allow, Sir, that lex terræ was the father of Wittena Gemota, and Wittena Gemota the fa ther of Parliamentum, from whose foul humors sprang this excrescence; but Sir, shall this excrescence therefore be allowed to call lex terræ its grandfather? Shall an imposthume be esteemed a part of that very constitution which it limits, corrupts, and destroys? To speak less metaphorically, parliament derives its existence from those ancient laws and customs of which we know not the origin: shall it therefore be maintained that any practice which the necessities of the times may force parliament to adopt, shall become a part of those primordial laws and customs? The trial by jury is one of these fundamental laws; no man will dispute that; and the practice introduced was a sus pension of that fundamental law: Now if the house of commons is competent to suspend one fundamentai law, it is competent to suspend them all in other words, the constitution is in that case at the will of a body of men, who themselves are supposed to be under the influence of a single man. This privilege of suspending, or dispensing with, that fudamental law, the trial by jury, was not the only parliamentary irregularity produced by the contentions of those days. Charles certainly broke the contract between prince and people as much, if not more, than his son James did, and therefore, the kingly office was as much abdicated by the one as by the other: the old fundamental law Nec nomen Regis in eo constabit, was applicable to them both, but decapitation was a stretch of power beyond the constitution, and perhaps, narBowly escaped, in that privilegemaking age, being also converted' into a part of the Lex Terra! In short, if any branch of the legislature can exercise such a power of conversion, farewell to the English' constitution! farewell every vestige of freedom! I might go still farther, Mr. Editor, and say, in that case, farewell even common sense. For suppose Sir, by way of argument, that the house of commons,under pretence of being the sole judge of its own privileges, should make what it pleased privilege; in other words, should have a full latitude of manufacture in this article; and that these privileges, when so inade, should pass current, and not be regarded like smuggled unlawful wares; still Sir, it could not impose upon us such modern manufactures for antiquities of the age of several 'centuries; it could not convert a privilege spick and span new into a venerable Saxon relick; it could not tell us, that what we saw made before our eyes, was a thing existing from beyond the memory of any beginning; that Sir, would be more insulting to the common sense of the people of England, than the famous exploit of the bottle conjurer himself. And yet, Mr. Editor, what is it that the committee of the representatives of the British Commons do say: do they not tell us in their second report, that a privilege created in sixteen hundred and odd, is a part of that lex terræ, referred to in a charter executed in twelve hundred and odd?-The following are their memorable words. Speaking of the pwoer of commitment for a libel &c. they say-" This power is IN TRUTH ta, where it is declared, that no "freeman shall be taken or impri"soned but by the, judgment of his. peers or the law of the land." Now Mr. Editor, give me leave to ask such of your readers who have happily retained the faculty of common sense, unperplexed and unsophisticated by the juggling of state lawyers, whether any thing could be mentioned in Magna Charta which was not then in existence, nor indeed untill four hundred years after that charter was made? Whether any thing could be even referred to, understood, or implied by the words lex terræ, but the law then in being the law that was already in esse→→ that had been in existence in Saxon times, aye, beyond the memory of any beginning, and which it was the object of that charter not only |