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.