The manner of obtaining these charters, and the right the people have to the liberties contained in them, have been the subject of much controversy between the favourers of arbitrary power and the assertors of freedom; the one, contending that they were the fruits of rebellion, extorted by force and fraud, from a prince unable to resist, and therefore revocable by him or his successors; and the others, that they were the antient privileges of the nation, which John had, contrary to his coronation-oath, invaded, and which they therefore had a right to reclaim by arms. That they were obtained by force, is undoubted, and that John and many of his successors looked upon them, therefore, as of no validity, is as clear, even from the argument lord Coke brings for their great weight, their being confirmed above twenty times by act of parliament. To what purpose so many confirmations, if the kings had not thought them invalid, and had not, on occasions, broke through them; and were it as clear that they were not the antient rights of the people, it must be owned they were extorted by rebellion. But that they were no other than confirmations, appears very plainly from the short detail I have heretofore given of the constitution and spirit of the monarchy of the Saxons, and all other northern nations.
As to any new regulations introduced in them, as some there are, they are only precautions for the better securing those liberties the people were before entitled to, and it is a maxim of all laws, that he who has a right to a thing, hath a right to the means without which he cannot enjoy that thing.
The friends, therefore, to absolute power, sensible that the original constitution is against them, choose to look no farther back than the Conquest. Then, say they, the Saxon government and laws were extinguished, the English by the Conquest lost their rights, the foreigners had no title to English liberties, and the Conqueror and his son William acted as despotic monarchs. Therefore, their successors had the same right, and it was treason to think of controuling them. But how little foundation there is for this doctrine, may appear from what I observed on the reign of the Conqueror. He claimed to be king on the same footing as his predecessors; he confirmed the Saxon laws, and consequently both Saxons and foreigners, when settled in the kingdom, had a right to them. If he oppressed the English, that oppression did not extend to all; and to those it did, it was not exercised as upon conquered slaves, but as upon revolted rebels. But, for argument sake, to allow that the English became slaves, and that the foreign lords had no right to the Saxon privileges, both which are false, how came the king to be despotic sovereign over them? They were partly his own subjects, freemen, according to the feudal principles, who served him as volunteers, for he had no right to command their service in England; or volunteers from other princes dominions, and to say that freemen and their posterity became slaves, because they are so kind as to conquer a kingdom for their leader, is a most extraordinary paradox.
But William the Conqueror, in some instances, and his son in all, acted as despotic princes; therefore they had a right so to do. I answer, the triumvirs proscribed hundreds of the best Romans, therefore they had a right. It is as unsafe to argue from matter of fact to matter of right, as from matter of right to matter of fact. It is as absurd to say, Tarquin ruled absolutely, therefore the Romans were rightfully his slaves, as to say the Romans had a right to liberty under him, therefore they were free.
But it may be said, the people quietly submitted, and new rights may be acquired, and new laws made, by the tacit consent of prince and people, as well as by express legislation. I allow it where the consent is undoubtedly voluntary, and hath continued uninterrupted for a long space of time; and how voluntary this submission was, we may judge from the terms they made with Henry the First, before they suffered him to mount the throne. Besides, there are some points of liberty, essential to human nature, that cannot, either by express or tacit laws, be given up, such as the natural right that an innocent man has to his life, his personal liberty, and the guidance of his actions, provided they are lawful, when the public good doth not necessarily require a restraint. In short, never was there a worse cause, or worse defended; and this maxim was what influenced the conduct of the Stuarts, and precipitated that unhappy house to their ruin.
John, who entertained the same sentiments, had no resource to recover his lost rights, as he thought them, but the assistance of the Pope, and an army of foreigners. The first very cordially espoused his interest. He was provoked that he, who had humbled kings, should be controuled by petty lords, and that by these privileges he should be prevented from reaping that golden harvest he expected from England. He annulled the charters, commanded them to recede from them, and, on their disobedience, excommunicated them, first in general, and then, by name.
About the same time arrived an army of veteran foreigners, that came to assist John, who had, in imitation of the Conqueror, distributed to them the estates of the barons. With these and a few English lords, he took the field, and ravaged the country with a more than Turkish barbarity. The confederate barons saw the liberties they had contended for annulled, their lives and estates in the most imminent danger, and, in a fit of despair, invited Lewis, prince of France, to the crown, who, bringing over an army, saved them from immediate destruction. However, this strengthened John. It was not for any to stand neuter. Few chose to embark in an excommunicated party, and many, who saw slavery unavoidable, and nothing left but the choice of a master, preferred their countryman for a king to a foreigner. The loss of liberty now seemed certain, which ever prevailed; when the haughtiness of Lewis, and his want of confidence in the English noblemen who joined him, concurring with the death of John, and the innocence of his infant son, providentially preserved the freedom of England.