Page:Encyclopædia Britannica, Ninth Edition, v. 5.djvu/444

Rh 432 CHARTER so much, that they joined in the general demand for -the good old laws of Edward the Confessor.&quot; Even so early as the reign of the Conqueror himself, there was a royal acknowledgment of franchises or liberties, and the charters, renewals, or confirmations granted by subsequent kings are inextricably numerous. Coke, without exhausting them, counts thirty-two. The Great Charter of King John (1215) has so conspicuous a place in history, not only from its comparative completeness, but because it was exacted by men with arms in their hands from a resisting king, and was thus an enforced stipulation likely to be rigidly interpreted, instead of a concession carelessly conceded aud readily forgotten. A great many of the stipulations of the Great Charter refer to feudal exactions now so long obsolete that the restraints on them cease to be intelligible ; and those who have looked at the &quot; palladium of our liberties, expecting to find in it high-sounding definitions of freedom like those in modern Continental declarations of right, have been much disappointed. Even in the comparatively popular language of Blackstone there is not much to convey a distinct expression to unprofessional modern readers. &quot;It fixed,&quot; he says, &quot;the forfeiture of lands for felony in the same manner as it still remains, and prohibited for the future the grants of exclusive fisheries, and the erection of new bridges so as to oppress the neighbourhood. &quot;With respect to private rights, it established the testamentary power of the subject over part of his personal estate, the rest being distributed among his wife and chil dren ; it laid down the law of dower as it has continued ever since ; and it prohibited the appeals of women, unless for the death of their husbands. In matters of public police and national concern, it enjoined a uniformity of weights and measures, gave new en couragements to commerce by the protection of merchant strangers, and forbade the alienation of lands in mortmain. With regard to the administration of justice, besides prohibiting all denials or delays of it, it fixed the court of common pleas at Westminster, that the suitors might no longer be harassed with following the king s person in all his progresses ; and at the same time brought the trial of issues home to the very doors of the freeholders, by directing assizes to be taken in the proper counties, and establish ing annual circuits. It also corrected some abuses then incident to the trials by wager of law and of battle, directed the regular awarding of inquests for life or member, prohibited the king s inferior ministers from holding pleas of the Crown, or trying any criminal charge, whereby many forfeitures might otherwise have unjustly accrued to the exchequer, and regulated the time and place of holding the inferior tribunals of justice, the county court, sheriff s turn, and court-leet. It confirmed and established the liberties of the city of London, and all other cities, boroughs, towns, and ports of the kingdom. And, lastly, it protected every indi vidual of the nation in the free enjoyment of his life, his liberty, and his property, unless declared to be forfeited b the judgment of his peers or the law of the laud.&quot; The material feature of the document is that, so slightly referred to in the above extract, which says, &quot; No freeman shall be taken or imprisoned, or be disseised of his freehold or liberties, or free customs, or be outlawed or exiled, or any otherwise damaged, nor will we pass upon him, nor send upon him, but by lawful judgment of his peers, or by the law of the land.&quot; In this stipulation there is inferred that supremacy of the fixed principles of the law over the will and power of the monarch, which has rendered the fanatical devotion of the English lawyers to their common law so justifiable ; and as a farther security, the right of trial by peers or jurymen appointed a perpetual popular tribunal to check the official judges, should they be tempted to sell the liberties and privileges of the subject. Hallam, a ^ery competent judge, says, &quot; The institutions of positive law, the far more important changes which time has wrought in the order of society during GOO years subsequent to the Great Charter, have undoubtedly lessened its direct application to our present circumstances. But it is still the keystone of English liberty. All that has since been obtained is little more than a confirmation or com mentary ; and if every subsequent law were to be swept wry, there would still remain the bold features that dis tinguish a free from a despotic monarchy.&quot; (Middle Ayes, chap, viii.) Exemplars of the Great Charter were preserved among the muniments of cathedrals, and in other places calculated to preserve public archives. The Record Commission, when they published their edition of the statutes of the realm, were desirous to print the best authenticated version of the charter of King John ; and they state, that &quot; in Lincoln Cathedral, an original of the Great Charter of Liberties, granted by King John in the seventh year of his reign, is preserved in a perfect state. This charter appears to be of superior authority to either of the two charters of the same date preserved in the British Museum. From the contemporary indorsement of the word Lincolina on two folds of the charter, this may be presumed to be the charter transmitted by the hands of Hugh, the then bishop of Lincoln, who is one of the bishops named in the introductory clause.&quot; (Introduction, xxix.) Among the other concessions of a less comprehensive nature, the Charter of the Forest was deemed next in importance to Magna Charta. In nothing was the selfish rapacity of the Norman monarchs more conspicuous than in their relentless clearings of great districts of country for the establishment of forests or chases, where the sanctity of their field-sports was protected with a strict legal severity not conceded to the protection of ordinary property and personal freedom. The Charter of the Forest imposed wholesome limits on such inroads, and hence, along with the Great Charter, it has been printed at the commencement of the English statutes. The position of these documents in a series of Acts of Parliament is not so anomalous as it might seem ; for it would be very difficult to distinguish the charters from the earliest statutes, which were con cessions or admissions granted by the monarch on the requisition of the principal persons of the realm assembled together. Our statutes, indeed, still bear in their phraseology a testimony to this origin. The early use of the word &quot; charter,&quot; as a foundation of constitutional liberties, led to its being applied on various occasions to fundamental constitutional codes or rules of government adopted by various nations. The most memorable instance is the French Charte, containing the constitution of the French Government, as adjusted at the restoration in 1815, and amended at the revolution of 1830, which had its origin in an attempt of Charles X. to stretch one of its dubious clauses. From such public acts as Magna Charta, the concession of privileges by charter from the Crown descended through various grades. Both in England and Scotland the privileges of municipal corporations either were conferred of old by charter, or were presumed to have been so con ferred. The power of the Crown has in this form long virtually departed, but it is still competent to incor porate collective bodies with certain limited powers by royal charter ; though, in general, it is deemed necessary when the powers might affect personal or public interests to secure them by Act of Parliament. Insidious privileges were sometimes granted by charter, and were among the objects of the attacks on the Crown s power to grant monopolies in the 17th century. By the practice of mimicking the usages of the sovereign through all grades of feudality, it became the custom for every feudal lord or superior, high or low, when conceding any privilege as to his fief or landed property, to do so by a charter. Thus, throughout the British empire, and in Scotland especially, one of the most ordinary deeds con nected with the commerce in land assumes to this day the shape of a concession of privileges by a sovereign or other high feudal lord to his vassal. One of the essential features which the student of Scottish law has to master in the