LECTURE XLII

Continuation of the commentary on Magna Charta.

The fifth branch of this statute is in very general terms; it is, aut aliquo modo destruatur. “Destruction” is a word of very general import. Coke, in the first place, explains it by saying, “no man shall be fore-judged of life or limb, or put to the torture or death, without legal trial.” But he shews, afterwards, by his instances, that it is much more extensive: For he observes, that “when any thing is prohibited, every thing is prohibited which necessarily leads to it.” Every thing, therefore, openly and visibly tending to a man’s destruction, either as to life, limb, or the capacity of sustaining life, is hereby directly forbid: So that, torture, as it endangers life and limbs, and may prevent a man from earning his livelihood, is, on all these three accounts, unlawful, though common among all other nations of Europe, who have borrowed it from the old Roman law with respect to slaves; a plain indication in what light the introducers of it looked on their subjects. It cannot be said that this hath never been violated in England in arbitrary times; (as what nation is there, whose fundamental laws have not been, on occasion, violated?) yet, in five hundred years, I do not believe the English history can afford ten instances[410].

For the same reason, “judging a man, either in a civil or criminal cause, without calling him to answer and make his defence,” is against this provision. So likewise is “the not producing the witnesses, that the party may have an opportunity to cross-examine them,” I believe, if they may be had. For in the case of death, or absence in a foreign country, that they cannot be produced, there is an exception, for very necessity’s sake; and in that case, the examination of such person, taken before a proper magistrate, is good evidence, tho’ thereby the party loses the cross-examination or information against the murderer. But whenever this happens, the jury should consider that the party has lost the benefit of the cross-examination, and have that in their contemplation, when they are preparing to give their verdict. Directly contrary to this fundamental law, and to common justice, was the trial of Sir Walter Raleigh, conduced by Coke, attorney-general, upon the depositions of people who might be brought face to face. For, notwithstanding the perfect knowledge of that great lawyer in the laws of England, he was a most time-serving minister of the crown. The people of these nations are much indebted to him for his excellent writings on the law, and more for demonstrating the antient right of the people of England to the liberties they claimed: But, if we consider that he was then in disgrace at court, I fear this panegyric must be confined to his behaviour while a judge, which was without reproach; nor did he hesitate to forfeit the favour of the crown, by opposing incroachments on the law of England.

As tending to destruction; it is likewise unlawful to amerce or fine a man convicted of a crime, beyond what he has a possibility of paying; for that would tend to perpetual imprisonment, and disabling him from maintaining himself and family. Neither is it lawful, tho’ a man be indicted of treason or felony, for the king to grant, or even to promise, the forfeiture of his lands or goods; for this would be throwing a temptation in the way of others to suborn witnesses to his destruction. These I mention, only as particular instances, to open the import of this law; but the words are, aliquo modo destruatur, taking in “every thing that directly tends to destruction.” And it must be observed that these words, aliquo modo, are not in any other branch of this act.

I come now to the last clause of this first part, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, aut per legem terræ. I observed before, from the words here being in the first person, that they refer to the suit of the king; and they relate not only, by the latter words, to a legal trial, as to matter and form, but also to a trial in a proper and legal court. The words nec super eum ibimus belong to the King’s Bench, where the suits of the king, the placita coronæ, are properly handled, and where the king is always supposed to be present. The words super cum mittemus refer to other courts sitting for the same purposes, as Justice of gaol-delivery, for instance, under the king’s commission. But when those words are coupled with the following ones, per legem terræ, they carry a farther import; not only that the courts, trying the king’s causes should proceed according to the law of the land, but that the courts themselves should be such as the lex terræ authorizes; that is, either the common law, from time immemorial, or acts of parliament. So that the king hath no power, of his own authority, to form new criminal courts, as he may civil ones. In some cases, he appoints, indeed, the judges of the courts of common law, and issues commissions, and appoints the commissioners in criminal courts authorized by parliament; but no farther doth his power extend.

To this it may be objected, that the king may create a county palatine, and consequently new criminal courts; but let this be considered: Counties, and duchies, such as we call palatine, were, I may say, indeed of the essence of a feudal kingdom, as ours originally was; that is, the king might dismember a part of his kingdom from the immediate subjection to the crown, transfer a subordinate degree of the legal rights to a subject; and when a county of that kind was created, without saying any more, all the courts, not new ones, but the same that were at common law through the whole kingdom, followed as incidents; in the same manner as by erecting a new county, not palatine, it had its county-court, and the sheriff’s tourne. These are not erecting, properly speaking, new courts, so much as bringing the old ones home to the doors of the people of that district.

As I observed at the beginning, this law naturally divides itself into two parts, the first ending at the words per legem terræ. Having made such observations as have occurred to me as necessary or material for the understanding thereof, I now proceed to the latter part of this statute, which runs in these words: Nulli vendemus, nulli negabimus, aut deferemus justitiam, vel rectum. Some have imagined that, by these words, in the disjunctive, are meant common law and equity; but courts of equity, and proceedings in cases of equity in those courts, were not known in times so early; and the legal signification of rectum in old statutes, and law-books, is either the right that a man hath to a thing, or the law of the land, the means of attaining the possession and enjoyment of that right; and in that sense it is here to be taken; as Coke says, justice is the end, rectum the means, namely, due process of law; neither of which is to be sold, denied, or delayed to the subject. In order to understand this, it will be necessary to point out some of the mischiefs that were before this act, which is the surest way to expound the meaning of any law[411].

For this purpose it is to be remembered, that, in the Saxon times, almost all suits, except between grandees, were expedited in the county-courts. I have observed before, that the Conqueror and his successors discouraged these, and encouraged suits in the Aula Regis, or king’s courts; and that the subjects were fond of suing there; but still it was a matter of favour, where the cause properly belonged to the country jurisdictions, and could not be demanded as a right. As a matter of favour, it might be denied by the king, or his chancellor, who was the issuer of the original writs, unless a sum of money was paid, such as they demanded. This was selling justice. Or, if the person to be sued was a favourite of the king, or chancellor, the writ might be denied; this was denying justice. Or, if it was granted, as the proceedings were ex gratia, the party might, ad libitum, be delayed by the judges, or the cause might be stopped by order of the king, and this was the deferring of justice, meant by this act, which was intended for the giving every subject a right, in all cases, and against all persons, to have justice administered to him in the king’s courts. The chancellor now is hereby obliged instantly to issue all original writs, and the judges of the several courts, where causes depend, to issue the proper judicial ones without fee or reward. This, however, is not so to be understood, as to prohibit the moderate and accustomed fees, which, from time immemorial, have been paid to the officer, for his trouble in making them out, or to the judge, for putting the seal; for these are a part of their livelihood, but only those arbitrary sums which were before taken, and which the state properly calls the selling of justice. So likewise the judges are obliged, in every cause before them, to proceed with expedition, and to suffer no delays, but such as the law allows, and requires, for giving each party an opportunity of defence, and of laying his cause fully before the court.

However, notwithstanding this act, the evil was often repeated, and many suits stopped by the command of the king, and others, as appears by four several acts of parliament, made to enforce and explain this one, the substance of which acts, is summoned by Coke in these words: That “by no means common right, or common law, should be disturbed or delayed; no, though it be by command, and under the great seal, or privy seal, order, writ, letters, message, or commandment whatsoever, either from the king, or any other; and that the justices shall proceed, as if no such writs, letters, order, message, or other commandment, were come to them.” However, this is not to be understood so strictly, but that the king may stop his own civil suit that he hath instituted for his own benefit, as a capias for a fine, because quisque juri suo renunciare potest; and this stoppage, in truth, is for the benefit of the subject. It is otherwise in criminal accusations, unless he can shew good cause to the court to put it off. For every man accused has a right to be brought to his trial[412].

Neither are legal protections within the prohibition of this law; these were granted to stop suits against any man that was personally employed in the service of the king, and were founded on this presumption, that such service was for the public benefit, to which all private regards must give way. But then these protections, must be legal ones, such, and none other, as are found in the Register, the antientest book of the law, and not ones newly devised, and for new-fangled causes. These protections, however, were greatly abused in the sequel; favourites, and their dependants, frequently obtaining them, to hinder others of their just rights, under pretence of serving the king; where in truth, there was no such thing. It is therefore recorded, highly to the honour of Elizabeth, that she first discontinued the granting them; and her laudable example has been followed by all her successors. I shall, therefore, not dwell upon them, it being sufficient to have mentioned that such things there are, or at least were in our law.

I hope the prolixity with which I have treated of this chapter of Magna Charta, the care I have taken to open the true meaning and force of every word in it, and the many tacit exceptions each part of it is subject to, will be excused, when it is considered, that it not only contains great variety of matter, but is the most important, and of more general consequence and concern, than any other law of the land. It is the guardian of the life, the liberty, the limbs, the livelihood, the possessions, and to the right to justice of every individual, and therefore it concerns every man to know it, and fully to understand it.

The thirtieth chapter is in favour of commerce and merchant strangers. Certain it is, that, in antient times, the kings of Europe, and their military subjects, looked on merchandize as a dishonourable profession; as did the Romans also, in the military ages of that republic. By the old laws of England, no merchants alien were to frequent England, except at the four great fairs; and then were permitted to stay but forty days at a time, that is, an hundred and sixty days in the whole year. But now this act has altered the former law, and is very favourable to persons engaged in commerce, who before were little better than at sufferance. It commands, that all merchants, namely, merchant strangers, whose sovereign is in amity with the king, unless publicly prohibited, that is, says Coke, by Parliament, which is true, as the law hath since stood, (but before, I conceive the king himself had the power to prohibit) shall have safe and sure conduct in seven things. First, to depart out of England without licence, at their will and pleasure. Secondly, to come into England in the same manner. Thirdly, to continue in England without limit of time. Fourthly, to go and travel through any part of England at their pleasure, by land or water. Fifthly, free liberty to buy and sell. Sixthly, without any manner of evil, tolls or taxes; but only, Seventhly, by the old and rightful customs, that is, by such duties as were of old time accustomed to be paid, and are therefore called Customs. By this law the king is prohibited from laying any new taxes on the imports or exports of merchant strangers. And as now they gained a general licence to continue in the realm, from hence arose that privilege of merchant strangers to take leases for years, of houses for their dwelling, and warehouses for their goods, which they continued in England; for, regularly, all acquisitions of aliens, in lands or tenements, belong to the king[413].

The second branch of this act is a very equitable one. It concerns merchant enemies, or rather such merchant strangers as came in friends, and afterwards became enemies, by a war’s breaking out between the sovereigns while they are in England. It provides that, on a war’s so breaking out, the persons and effects of such merchants should be seized, and safely kept till it should be known how the English merchants had been treated in the enemy’s country; and that, if they were well treated, these should be so too. This regulation, however, is not put in use; because, by the treaties made between the sovereigns of Europe, it is stipulated, that, on the breaking out of war, the merchants in each others country should have a certain number of days to withdraw themselves and their effects. But if a merchant enemy comes into the country, after war declared, he is to be treated as an enemy; to which, by the old law, now antiquated, there was a very humane exception, that of persons driven into England by stress of weather.