To see what is meant by libertatibus. It comprehendeth, in the first place, the laws of the realm, that every man should freely enjoy such advantages and privileges as these laws give him. Secondly, it signifies the privileges that some of the subjects, whether single persons, or bodies corporate, have above others, by the lawful grant of the king; as the chattels of felons or outlaws, and the lands and privileges of corporations. Hence any grant of the king, by letters patent to any person, which deprives another subject of his natural right and free liberties, is against this branch of Magna Charta, as are all monopolies, which were so plentifully and so oppressively granted in the reigns of Elizabeth and James the First, and here in Ireland, in that of Charles the First. We must, however, except such monopolies as are erected by act of parliament, or by the king’s patents, pursuing the directions of an act made for that purpose[406].
Lastly, Consuetudinibus takes in and preserves those local customs in many parts of England, which, though they derogate from the common law, are yet countenanced and acknowledged as part of the general system of law. It also extends to any privileges which a subject claims by prescription, as wreck, waif, stray, and the like[407].
The next clause is, aut utlagetur; of which having spoken already, I shall pass on to the fourth, aut exuletur. No man shall be banished out of the realm, nisi per legem terræ; for the judicium parium is out of this clause, there being no crime of which a man is convicted, whose sentence is banishment. The transportation now commonly used for slighter felonies is not like it; for that is by the free consent of the criminal, who desires to commute a heavier punishment for a slighter. Now per legem terræ a man may be exiled two ways, either by act of parliament, as some wicked minions of our former kings were, and particularly Richard the Second’s corrupt judges into Ireland; or by a man’s abjuring the realm when accused of felony, that is, swearing to depart out of the kingdom, never to return; which latter is long since fallen into disuse. Coke says, that the king cannot send any subject against his will to serve him out of the realm, and the reason is strong; for if he could under pretence of service, he might tear him from his family and country, and transport him to the remotest corner of the earth, there to remain during the whole of his life[408]. But what shall we say as to the military tenants, who by the very tenure of their grants were obliged to serve the king in his wars out of the realm? Certainly, whilst the feudal system retained its pristine vigour, and personal service was required, they were an exception to this rule; but when the commutation of escuage was established, they were considered as under it. Indeed their general readiness to attend their king’s service in person, gave no occasion for this question’s ever being decided. The famous case on this point was in Edward the Third’s reign; that prince had made many grants to Sir Richard Pembrige, some for servitio impenso, others for servitio impendendo. The king commanded him to serve in Ireland, as his Lord-deputy, which he positively refused to do, looking upon the appointment as no better than an exile; and for this refusal the king seized all that had been granted to him pro servitio impendendo; and the question came on in court, whether the seizure was lawful. The judges clearly held the refusal lawful, and therefore would not commit him to prison; but as to the seizure, in consequence of the words pro servitio impendendo, without specifying where, they thought it justified. But Coke says, “it seemeth to me that the seizure was unlawful.” For pro servitio impenso, and impendendo, must be intended of lawful service within the realm. The last time this act was violated was in the reign of the misguided James the First, in the case of the unfortunate Sir Thomas Overbury; who for refusing to go ambassador to Muscovy, was by that prince sent to the Tower, in which place he was afterwards barbarously poisoned; and for his murder the favourite Somerset and his countess were both condemned to die[409].
LECTURE XLII
Continuation of the commentary on Magna Charta.
The fifth branch of this statute is in very general terms; it is, aut aliquo modo destruatur. “Destruction” is a word of very general import. Coke, in the first place, explains it by saying, “no man shall be fore-judged of life or limb, or put to the torture or death, without legal trial.” But he shews, afterwards, by his instances, that it is much more extensive: For he observes, that “when any thing is prohibited, every thing is prohibited which necessarily leads to it.” Every thing, therefore, openly and visibly tending to a man’s destruction, either as to life, limb, or the capacity of sustaining life, is hereby directly forbid: So that, torture, as it endangers life and limbs, and may prevent a man from earning his livelihood, is, on all these three accounts, unlawful, though common among all other nations of Europe, who have borrowed it from the old Roman law with respect to slaves; a plain indication in what light the introducers of it looked on their subjects. It cannot be said that this hath never been violated in England in arbitrary times; (as what nation is there, whose fundamental laws have not been, on occasion, violated?) yet, in five hundred years, I do not believe the English history can afford ten instances[410].
For the same reason, “judging a man, either in a civil or criminal cause, without calling him to answer and make his defence,” is against this provision. So likewise is “the not producing the witnesses, that the party may have an opportunity to cross-examine them,” I believe, if they may be had. For in the case of death, or absence in a foreign country, that they cannot be produced, there is an exception, for very necessity’s sake; and in that case, the examination of such person, taken before a proper magistrate, is good evidence, tho’ thereby the party loses the cross-examination or information against the murderer. But whenever this happens, the jury should consider that the party has lost the benefit of the cross-examination, and have that in their contemplation, when they are preparing to give their verdict. Directly contrary to this fundamental law, and to common justice, was the trial of Sir Walter Raleigh, conduced by Coke, attorney-general, upon the depositions of people who might be brought face to face. For, notwithstanding the perfect knowledge of that great lawyer in the laws of England, he was a most time-serving minister of the crown. The people of these nations are much indebted to him for his excellent writings on the law, and more for demonstrating the antient right of the people of England to the liberties they claimed: But, if we consider that he was then in disgrace at court, I fear this panegyric must be confined to his behaviour while a judge, which was without reproach; nor did he hesitate to forfeit the favour of the crown, by opposing incroachments on the law of England.
As tending to destruction; it is likewise unlawful to amerce or fine a man convicted of a crime, beyond what he has a possibility of paying; for that would tend to perpetual imprisonment, and disabling him from maintaining himself and family. Neither is it lawful, tho’ a man be indicted of treason or felony, for the king to grant, or even to promise, the forfeiture of his lands or goods; for this would be throwing a temptation in the way of others to suborn witnesses to his destruction. These I mention, only as particular instances, to open the import of this law; but the words are, aliquo modo destruatur, taking in “every thing that directly tends to destruction.” And it must be observed that these words, aliquo modo, are not in any other branch of this act.