The common law, as it then prevailed in England, was in a great measure composed of some remnants of the old Saxon customs, joined to the feudal institutions brought in at the Norman conquest. And it is here to be observed, that the constitutions of Magna Charta are by no means a renewal of the laws of St. Edward, or the ancient Saxon laws, as our historians and law-writers generally, though very groundlessly, assert. They bear no resemblance, in any particular, to the laws of St. Edward, or to any other collection of these ancient institutions. Indeed, how should they? The object of Magna Charta is the correction of the feudal policy, which was first introduced, at least in any regular form, at the Conquest, and did not subsist before it. It may be further observed, that in the preamble to the Great Charter it is stipulated, that the barons shall HOLD the liberties, there granted TO THEM AND THEIR HEIRS, from THE KING AND HIS HEIRS; which shows, that the doctrine of an unalienable tenure was always uppermost in their minds. Their idea even of liberty was not (if I may use the expression) perfectly free; and they did not claim to possess their privileges upon any natural principle or independent bottom, but, just as they held their lands, from the king. This is worthy of observation. By the feudal law all landed property is, by a feigned conclusion, supposed to be derived, and therefore to be mediately or immediately held, from the Crown. If some estates were so derived, others were certainly procured by the same original title of conquest, by which the crown itself was acquired; and the derivation from the king could in reason only be considered as a fiction of law. But its consequent rights being once supposed, many real charges and burthens grew from a fiction made only for the preservation of subordination; and in consequence of this, a great power was exercised over the persons and estates of the tenants. The fines on the succession to an estate, called in the feudal language "Reliefs," were not fixed to any certainty; and were therefore frequently made so excessive, that they might rather be considered as redemptions, or new purchases, than acknowledgments of superiority and tenure. With respect to that most important article of marriage, there was, in the very nature of the feudal holding, a great restraint laid upon it. It was of importance to the lord, that the person, who received the feud, should be submissive to him; he had therefore a right to interfere in the marriage of the heiress, who inherited the feud. This right was carried further than the necessity required; the male heir himself was obliged to marry according to the choice of his lord: and even widows, who had made one sacrifice to the feudal tyranny, were neither suffered to continue in the widowed state, nor to choose for themselves the partners of their second bed. In fact, marriage was publicly set up to sale. The ancient records of the exchequer afford many instances where some women purchased, by heavy fines, the privilege of a single life; some the free choice of a husband; others the liberty of rejecting some person particularly disagreeable. And, what may appear extraordinary, there are not wanting examples, where a woman has fined in a considerable sum, that she might not be compelled to marry a certain man; the suitor on the other hand has outbid her; and solely by offering more for the marriage than the heiress could to prevent it, he carried his point directly and avowedly against her inclinations. Now, as the king claimed no right over his immediate tenants, that they did not exercise in the same, or in a more oppressive manner over their vassals, it is hard to conceive a more general and cruel grievance than this shameful market, which so universally outraged the most sacred relations among mankind. But the tyranny over women was not over with the marriage. As the king seized into his hands the estate of every deceased tenant in order to secure his relief, the widow was driven often by a heavy composition to purchase the admission to her dower, into which it should seem she could not enter without the king's consent.
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 burthens, 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 a very happy circumstances to the growing liberty.
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