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.

The king now had the custody, as also the profits, by a legal title for a year and a day, unless the lord pleased to compound with him, and so intitle himself to the immediate possession. But this did not satisfy the greediness of the officers of the crown. It was easy to gather the profits until very near the time the king’s right expired, and then, for a week or fortnight before it was out, they had it in their power to commit waste enough, if the lord, who was intitled by the escheat, did not buy them out. This was certainly against the spirit of the law whereof we are speaking, which was intended to give the king a real profit, instead of a right destructive to the community in general; but the waste was not prohibited expressly, and this was pretext enough for these officers to exact composition for not doing it within the year. It was accordingly claimed and paid, and accounted for as due to the king, on that old maxim, That general laws do not change the prerogative royal, but by express words. This was the doctrine and practice in the courts of the third Henry, and convenient enough for him, who was always indigent. But what was the opinion of the lawyers of that age, we may learn from Bracton, Britton, and the author of Fleta; the first of which wrote in the latter end of this reign, and the other two in the reign following. Bracton says expressly, that “the king’s power over the lands of felons convicted, was because he had a right to throw down the buildings, unroot the gardens, and plow up the meadows; but because such things turned to the great damage of the lords, it was provided, for common utility, that such houses, gardens, and meadows should remain, and that the king for this should have the advantage of the whole land for a year and a day, and so every thing should return entire to the lord. Then he goes on, but now both is demanded, namely, a fine for the term, likewise for the waste, nor do I see the reason why[391].” Thus far Bracton. Britton says, speaking in the person of the king, of felons, for in that manner his book is written, “Their moveables are ours; their heirs are disinherited; and we will have their tenements, of whatsoever holden, for a year and a day, so that they shall remain in our hands that year and day, and that we shall not cause to perish the tenements, nor hurt the woods, nor plow the meadows, as hath been accustomed in time past[392].” Fleta talks in the same strain, in commenting on this law of Magna Charta, which he expressly quotes, that, as a mark of brand on felony, it had been antiently provided that the houses should be thrown down, and so goes on to enumerate the other species of waste, which I need not here repeat, as I have mentioned them already; and then he says “because by such doings great damage would accrue to the lords of the fiefs; for common utility it was provided, that such hardships and severities should cease; and that the king, in consideration thereof, should, for a year and a day, enjoy the commodity of the whole land; after which term it should return to the lords of the propriety entirely, without waste or destruction[393].” The Mirror, another antient law-book, joins with these; and this book, which was written in the same reign of Edward the first, or, at the latest, in that of his son, says, “the point of felons lands being held for the year is disused; for by that, the king ought not to have but the waste by right, or the year, in name, (that is, in nature) of a fine; to save the fief from estrepement (that is, waste), the ministers of the king take both the one and the other[394].” A melancholy consideration, that, under his name, and in pretence of his profit, though not really to his advantage, such a law should, for their own profit, be eluded by his ministers; as by these testimonies, one cotemporary, and the rest immediately subsequent, we are informed it was contrary to the intention of this chapter of Magna Charta; but the practice prevailed for a long time after. I shall conclude this lecture with the words of Lord Coke on this chapter of Magna Charta. “Out of these old books you may observe, that when any thing is given to the king, in lieu or satisfaction of an antient right of his crown, when once he is in possession of the new recompence, and the same in charge, his officers and ministers will many times demand the old also, which may turn to great prejudice, if it be not duly and discreetly prevented[395]”.