The Works of the Right Honourable Edmund Burke, Vol. 07 (of 12)

All these were marks of a real and grievous servitude. The Great Charter was made, not to destroy the root, but to cut short the overgrown branches of the feudal service: first, in moderating and in reducing to a certainty the reliefs which the king's tenants paid on succeeding to their estate according to their rank; and, secondly, in taking off some of the burdens which had been laid on marriage, whether compulsory or restrictive, and thereby preventing that shameful market which had been made in the persons of heirs, and the most sacred things amongst mankind.

There were other provisions made in the Great Charter that went deeper than the feudal tenure, and affected the whole body of the civil government. A great part of the king's revenue then consisted in the fines and amercements which were imposed in his courts. A fine was paid there for liberty to commence or to conclude a suit. The punishment of offences by fine was discretionary; and this discretionary power had been very much abused. But by Magna Charta, things were so ordered, that a delinquent might be punished, but not ruined, by a fine or amercement; because the degree of his offence, and the rank he held, were to be taken into consideration. His freehold, his merchandise, and those instruments by which he obtained his livelihood were made sacred from such impositions.

A more grand reform was made with regard to the administration of justice. The kings in those days seldom resided long in one place, and their courts followed their persons. This erratic justice must have been productive of infinite inconvenience to the litigants. It was now provided that civil suits, called Common Pleas, should be fixed to some certain place. Thus one branch of jurisdiction was separated from the king's court, and detached from his person. They had not yet come to that maturity of jurisprudence as to think this might be made to extend to criminal law also, and that the latter was an object of still greater importance. But even the former may be considered as a great revolution. A tribunal, a creature of mere law, independent of personal power, was established; and this separation of a king's authority from his person was a matter of vast consequence towards introducing ideas of freedom, and confirming the sacredness and majesty of laws.

But the grand article, and that which cemented all the parts of the fabric of liberty, was this,—that "no freeman shall be taken, or imprisoned, or disseized, or outlawed, or banished, or in any wise destroyed, but by judgment of his peers."

There is another article of nearly as much consequence as the former, considering the state of the nation at that time, by which it is provided that the barons shall grant to their tenants the same liberties which they had stipulated for themselves. This prevented the kingdom from degenerating into the worst imaginable government, a feudal aristocracy. The English barons were not in the condition of those great princes who had made the French monarchy so low in the preceding century, or like those who reduced the Imperial power to a name. They had been brought to moderate bounds, by the policy of the first and second Henrys, and were not in a condition to set up for petty sovereigns by an usurpation equally detrimental to the crown and the people. They were able to act only in confederacy; and this common cause made it necessary to consult the common good, and to study popularity by the equity of their proceedings. This was a very happy circumstance to the growing liberty.

These concessions were so just and reasonable, that, if we except the force, no prince could think himself wronged in making them. But to secure the observance of these articles, regulations were made, which, whilst they were regarded, scarcely left a shadow of regal power. And the barons could think of no measures for securing their freedom, but such as were inconsistent with monarchy. A council of twenty-five barons was to be chosen by their own body, without any concurrence of the king, in order to hear and determine upon all complaints concerning the breach of the charter; and as these charters extended to almost every part of government, a tribunal of his enemies was set up who might pass judgment on all his actions. And that force might not be wanting to execute the judgments of this new tribunal, the king agreed to issue his own writs to all persons, to oblige them to take an oath of obedience to the twenty-five barons, who were empowered to distress him by seizure of his lands and castles, and by every possible method, until the grievance complained of was redressed according to their pleasure: his own person and his family were alone exempted from violence.

By these last concessions, it must be confessed, he was effectually dethroned, and with all the circumstances of indignity which could be imagined. He had refused to govern as a lawful prince, and he saw himself deprived of even his legal authority. He became of no sort of consequence in his kingdom; he was held in universal contempt and derision; he fell into a profound melancholy. It was in vain that he had recourse to the Pope, whose power he had found sufficient to reduce, but not to support him. The censures of the Holy See, which had been fulminated at his desire, were little regarded by the barons, or even by the clergy, supported in this resistance by the firmness of their archbishop, who acted with great vigor in the cause of the barons, and even delivered into their hands the fortress of Rochester, one of the most important places in the kingdom. After much meditation the king at last resolved upon a measure of the most extreme kind, extorted by shame, revenge, and despair, but, considering the disposition of the time, much the most effectual that could be chosen. He dispatched emissaries into France, into the Low Countries and Germany, to raise men for his service. He had recourse to the same measures to bring his kingdom to obedience which his predecessor, William, had used to conquer it. He promised to the adventurers in his quarrel the lands of the rebellious barons, and it is said even empowered his agents to make charters of the estates of several particulars. The utmost success attended these negotiations in an age when Europe abounded with a warlike and poor nobility, with younger brothers, for whom there was no provision in regular armies, who seldom entered into the Church, and never applied themselves to commerce, and when every considerable family was surrounded by an innumerable multitude of retainers and dependants, idle, and greedy of war and pillage. The Crusade had universally diffused a spirit of adventure; and if any adventure had the Pope's approbation, it was sure to have a number of followers.

John waited the effect of his measures. He kept up no longer the solemn mockery of a court, in which a degraded long must always have been the lowest object. He retired to the Isle of Wight: his only companions were sailors and fishermen, among whom he became extremely popular. Never was he more to be dreaded than in this sullen retreat, whilst the barons amused themselves by idle jests and vain conjectures on his conduct. Such was the strange want of foresight in that barbarous age, and such the total neglect of design in their affairs, that the barons, when, they had got the charter, which was weakened even by the force by which it was obtained and the great power which it granted, set no watch upon the king, seemed to have no intelligence of the great and open machinations which were carrying on against them, and had made no sort of dispositions for their defence. They spent their time in tournaments and bear-baitings, and other diversions suited to the fierce rusticity of their manners. At length the storm broke forth, and found them utterly unprovided. The Papal excommunication, the indignation of their prince, and a vast army of lawless and bold adventurers were poured down at once upon their heads. Such numbers were engaged in this enterprise that forty thousand are said to have perished at sea. Yet a number still remained sufficient to compose two great armies, one of which, with the enraged king at its head, ravaged without mercy the North of England, whilst the other turned all the West to a like scene of blood and desolation. The memory of Stephen's wars was renewed, with every image of horror, misery, and crime. The barons, dispersed and trembling in their castles, waited who should fall the next victim. They had no army able to keep the field. The Archbishop, on whom they had great reliance, was suspended from his functions. There was no hope even from submission: the king could not fulfil his engagements to his foreign troops at a cheaper rate than the utter ruin of his barons.

A.D. 1216In these circumstances of despair they resolved to have recourse to Philip, the ancient enemy of their country. Throwing off all allegiance to John, they agreed to accept Louis, the son of that monarch, as their king. Philip had once more an opportunity of bringing the crown of England into his family, and he readily embraced it. He immediately sent his son into England with seven hundred ships, and slighted the menaces and excommunications of the Pope, to attain the same object for which he had formerly armed to support and execute them. The affairs of the barons assumed quite a new face by this reinforcement, and their rise was as sudden and striking as their fall. The foreign army of King John, without discipline, pay, or order, ruined and wasted in the midst of its successes, was little able to oppose the natural force of the country, called forth and recruited by so considerable a succor. Besides, the French troops who served under John, and made a great part of his army, immediately went over to the enemy, unwilling to serve against their sovereign in a cause which now began to look desperate. The son of the King of France was acknowledged in London, and received the homage of all ranks of men. John, thus deserted, had no other ally than the Pope, who indeed served him to the utmost of his power, but with arms to which the circumstances of the time alone can give any force. He excommunicated Louis and his adherents; he laid England under an interdict; he threatened the King of France himself with the same sentence: but Philip continued firm, and the interdict had little effect in England. Cardinal Langton, by his remarkable address, by his interest in the Sacred College, and his prudent submissions, had been restored to the exercise of his office; but, steady to the cause he had first espoused, he made use of the recovery of his authority to carry on his old designs against the king and the Pope. He celebrated divine service in spite of the interdict, and by his influence and example taught others to despise it. The king, thus deserted, and now only solicitous for his personal safety, rambled, or rather fled, from place to place, at the head of a small party. He was in great danger in passing a marsh in Norfolk, in which he lost the greatest part of his baggage, and his most valuable effects. With difficulty he escaped to the monastery of Swineshead, where, violently agitated by grief and disappointments, his late fatigue and the use of an improper diet threw him into a fever, of which he died in a few days at Newark, not without suspicion of poison, after a reign, or rather a struggle to reign, for eighteen years, the most turbulent and calamitous both to king and people of any that are recorded in the English history.

It may not be improper to pause here for a few moments, and to consider a little more minutely the causes which had produced the grand revolution in favor of liberty by which this reign was distinguished, and to draw all the circumstances which led to this remarkable event into a single point of view. Since the death of Edward the Confessor only two princes succeeded to the crown upon undisputed titles. William the Conqueror established his by force of arms. His successors were obliged to court the people by yielding many of the possessions and many of the prerogatives of the crown; but they supported a dubious title by a vigorous administration, and recovered by their policy, in the course of their reign, what the necessity of their affairs obliged them to relinquish for the establishment of their power. Thus was the nation kept continually fluctuating between freedom and servitude. But the principles of freedom were predominant, though the thing itself was not yet fully formed. The continual struggle of the clergy for the ecclesiastical liberties laid open at the same time the natural claims of the people; and the clergy were obliged to show some respect for those claims, in order to add strength to their own party. The concessions which Henry the Second made to the ecclesiastics on the death of Becket, which were afterwards confirmed by Richard the First, gave a grievous blow to the authority of the crown; as thereby an order of so much power and influence triumphed over it in many essential points. The latter of these princes brought it very low by the whole tenor of his conduct. Always abroad, the royal authority was felt in its full vigor, without being supported by the dignity or softened by the graciousness of the royal presence. Always in war, he considered his dominions only as a resource for his armies. The demesnes of the crown were squandered. Every office in the state was made vile by being sold. Excessive grants, followed by violent and arbitrary resumptions, tore to pieces the whole contexture of the government. The civil tumults which arose in that king's absence showed that the king's lieutenants at least might be disobeyed with impunity. Then came John to the crown. The arbitrary taxes which he imposed very early in his reign, which, offended even more by the improper use made of them than their irregularity, irritated the people extremely, and joined with all the preceding causes to make his government contemptible. Henry the Second, during his contests with the Church, had the address to preserve the barons in his interests. Afterwards, when the barons had joined in the rebellion of his children, this wise prince found means to secure the bishops and ecclesiastics. But John drew upon himself at once the hatred of all orders of his subjects. His struggle with the Pope weakened him; his submission to the Pope weakened him yet more. The loss of his foreign territories, besides what he lost along with them in reputation, made him entirely dependent upon England: whereas his predecessors made one part of their territories subservient to the preservation of their authority in another, where it was endangered. Add to all these causes the personal character of the king, in which there was nothing uniform or sincere, and which introduced the like unsteadiness into all his government. He was indolent, yet restless, in his disposition; fond of working by violent methods, without any vigor; boastful, but continually betraying his fears; showing on all occasions such a desire of peace as hindered him from ever enjoying it. Having no spirit of order, he never looked forward,—content by any temporary expedient to extricate himself from a present difficulty. Rash, arrogant, perfidious, irreligious, unquiet, he made a tolerable head of a party, but a bad king, and had talents fit to disturb another's government, not to support his own.

A most striking contrast presents itself between the conduct and fortune of John and his adversary Philip. Philip came to the crown when many of the provinces of Prance, by being in the hands of too powerful vassals, were in a manner dismembered from the kingdom; the royal authority was very low in what remained. He reunited to the crown a country as valuable as what belonged to it before; he reduced his subjects of all orders to a stricter obedience than they had given to his predecessors; he withstood the Papal usurpation, and yet used it as an instrument in his designs: whilst John, who inherited a great territory and an entire prerogative, by his vices and weakness gave up his independency to the Pope, his prerogative to his subjects, and a large part of his dominions to the King of France.

CHAPTER IX.

FRAGMENT.—AN ESSAY TOWARDS AN HISTORY OF THE LAWS OF ENGLAND

There is scarce any object of curiosity more rational than the origin, the progress, and the various revolutions of human laws. Political and military relations are for the greater part accounts of the ambition and violence of mankind: this is an history of their justice. And surely there cannot be a more pleasing speculation than to trace the advances of men in an attempt to imitate the Supreme Ruler in one of the most glorious of His attributes, and to attend them in the exercise of a prerogative which it is wonderful to find intrusted to the management of so weak a being. In such an inquiry we shall, indeed, frequently see great instances of this frailty; but at the same time we shall behold such noble efforts of wisdom and equity as seem fully to justify the reasonableness of that extraordinary disposition by which men, in one form or other, have been always put under the dominion of creatures like themselves. For what can be more instructive than to search out the first obscure and scanty fountains of that jurisprudence which now waters and enriches whole nations with so abundant and copious a flood,—to observe the first principles of RIGHT springing up, involved in superstition and polluted with violence, until by length of time and favorable circumstances it has worked itself into clearness: the laws sometimes lost and trodden down in the confusion of wars and tumults, and sometimes overruled by the hand of power; then, victorious over tyranny, growing stronger, clearer, and more decisive by the violence they had suffered; enriched even by those foreign conquests which threatened their entire destruction; softened and mellowed by peace and religion; improved and exalted by commerce, by social intercourse, and that great opener of the mind, ingenuous science?

These certainly were great encouragements to the study of historical jurisprudence, particularly of our own. Nor was there a want of materials or help for such an undertaking. Yet we have had few attempts in that province. Lord Chief Justice Hale's History of the Common Law is, I think, the only one, good or bad, which we have. But with all the deference justly due to so great a name, we may venture to assert that this performance, though not without merit, is wholly unworthy of the high reputation of its author. The sources of our English law are not well, nor indeed fairly, laid open; the ancient judicial proceedings are touched in a very slight and transient manner; and the great changes and remarkable revolutions in the law, together with their causes, down to his time, are scarcely mentioned.

Of this defect I think there were two principal causes. The first, a persuasion, hardly to be eradicated from the minds of our lawyers, that the English law has continued very much in the same state from an antiquity to which they will allow hardly any sort of bounds. The second is, that it was formed and grew up among ourselves; that it is in every respect peculiar to this island; and that, if the Roman or any foreign laws attempted to intrude into its composition, it has always had vigor enough to shake them off, and return to the purity of its primitive constitution.

These opinions are flattering to national vanity and professional narrowness; and though they involved those that supported them in the most glaring contradictions, and some absurdities even too ridiculous to mention, we have always been, and in a great measure still are, extremely tenacious of them. If these principles are admitted, the history of the law must in a great measure be deemed, superfluous. For to what purpose is a history of a law of which it is impossible to trace the beginning, and which during its continuance has admitted no essential changes? Or why should we search foreign laws or histories for explanation or ornament of that which is wholly our own, and by which we are effectually distinguished from all other countries? Thus the law has been confined, and drawn up into a narrow and inglorious study, and that which should be the leading science in every well-ordered commonwealth remained in all the barbarism of the rudest times, whilst every other advanced by rapid steps to the highest improvement both in solidity and elegance; insomuch that the study of our jurisprudence presented to liberal and well-educated minds, even in the best authors, hardly anything but barbarous terms, ill explained, a coarse, but not a plain expression, an indigested method, and a species of reasoning the very refuse of the schools, which deduced the spirit of the law, not from original justice or legal conformity, but from causes foreign to it and altogether whimsical. Young men were sent away with an incurable, and, if we regard the manner of handling rather than the substance, a very well-founded disgust. The famous antiquary, Spelman, though no man was better formed for the most laborious pursuits, in the beginning deserted the study of the law in despair, though he returned to it again when a more confirmed age and a strong desire of knowledge enabled him to wrestle with every difficulty.

The opinions which have drawn the law into such narrowness, as they are weakly founded, so they are very easily refuted. With regard to that species of eternity which they attribute to the English law, to say nothing of the manifest contradictions in which those involve themselves who praise it for the frequent improvements it has received, and at the same time value it for having remained without any change in all the revolutions of government, it is obvious, on the very first view of the Saxon laws, that we have entirely altered the whole frame of our jurisprudence since the Conquest. Hardly can we find in these old collections a single title which is law at this day; and one may venture to assert, without much hazard, that, if there were at present a nation governed by the Saxon laws, we should find it difficult to point out another so entirely different from everything we now see established in England.

This is a truth which requires less sagacity than candor to discover. The spirit of party, which has misled us in so many other particulars, has tended greatly to perplex us in this matter. For as the advocates for prerogative would, by a very absurd consequence drawn from the Norman Conquest, have made all our national rights and liberties to have arisen from the grants, and therefore to be revocable at the will of the sovereign, so, on the other hand, those who maintained the cause of liberty did not support it upon more solid principles. They would hear of no beginning to any of our privileges, orders, or laws, and, in order to gain them a reverence, would prove that they were as old as the nation; and to support that opinion, they put to the torture all the ancient monuments. Others, pushing things further, have offered a still greater violence to them. N. Bacon, in order to establish his republican, system, has so distorted all the evidence he has produced, concealed so many things of consequence, and thrown such false colors upon the whole argument, that I know no book so likely to mislead the reader in our antiquities, if yet it retains any authority. In reality, that ancient Constitution and those Saxon laws make little or nothing for any of our modern parties, and, when fairly laid open, will be found to compose such a system as none, I believe, would think it either practicable or desirable to establish. I am sensible that nothing has been, a larger theme of panegyric with, all our writers on politics and history than the Anglo-Saxon government; and it is impossible not to conceive an high, opinion of its laws, if we rather consider what is said of them than what they visibly are. These monuments of our pristine rudeness still subsist; and they stand out of themselves indisputable evidence to confute the popular declamations of those writers who would persuade us that the crude institutions of an unlettered people had reached a perfection which the united efforts of inquiry, experience, learning, and necessity have not been able to attain in many ages.

But the truth is, the present system of our laws, like our language and our learning, is a very mixed and heterogeneous mass: in some respects our own; in more borrowed from the policy of foreign, nations, and compounded, altered, and variously modified, according to the various necessities which the manners, the religion, and the commerce of the people have at different times imposed. It is our business, in some measure, to follow and point out these changes and improvements: a task we undertake, not from any ability for the greatness of such a work, but purely to give some short and plain account of these matters to the very ignorant.