W. J. (William J.) Scott.

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Alcove No.
Shelf No.









W. J. SCOTT, D.D.,







CON This volume contains a part only of the literary work

r^ ^*

c/j z of the last two years.

fc It is gratefully inscribed to friends both new and old

OB ^ whose steadfast loyalty has been an inspiration to

2 c5



January 1st, 1892.





"England is the freest country in the world. Montesquieu.''

IT is a singular fact that Henry Hallam, in the main
an astute and learned historian, should have commenced
his "Constitutional History of England" with the acces
sion of Henry VII. It is as though Von Hoist, or
whoever else should undertake a constitutional history
of the American government, should utterly ignore the
administration of Jefferson and the "era of good feel
ing" under the presidency of Monroe, and begin with
the fatuous and fateful administration of Abraham Lin
coln. For while it is true that Henry VII., by his vic
tory on Bosworth field and his intermarriage with Eliza
beth of York, united in his own person the rival claims
of York and Lancaster, yet the Tudor dynasty that he
founded was in many respects the most arbitrary known
to English history.

Indeed, the formative period of the British Constitu
tion begins with the reign of Henry I., the youngest
son of the Conqueror, and culminates in the reign of
Edward III., of the house of York. Then it was that
Parliament became a two-chambered legislative body,
composed of Lords and Commons, the former consist-


ing of the peers, temporal and spiritual, and the latter
of the knights of the shire and the burgesses.

If, however, we would rightly understand the story
of the Magna Charta, we must needs go back to the
era of the Norman conquest. That conquest involved
the thorough subjugation of the Anglo-Saxon people.
They were utterly impoverished by wholesale confisca
tion. The records of the domesday-book show that
in the aggregate not less than six hundred baronies and
sixty thousand knightly fees were distributed among
the followers of William of Normandy. Besides this im
poverishment, there was both political and ecclesiastical
disfranchisement. For one hundred years after the
decisive battle of Hastings no man of English blood and
birth was admitted to the ranks of the nobility. In
the Church they were equally discounted by their Nor
man masters. The prelates and other higher clergy
were either born in foreign parts or descendants of
those who came over with the Conqueror. The first
notable break in this record of Saxon disqualification
was made by Henry II. in his nomination of Thomas
Becket for the see of Canterbury. The fact that
Becket was born on English soil, although of Norman
lineage, may have had somewhat to do with his subse
quent brutal assassination by a party of Norman gentry.

Beyond all else, however, was the thorough social
degredation of the Saxons. Macaulay tells us that
during several reigns a Norman could kick an English
man with impunity and at will. In a word, they were
a despised and downtrodden race.


Henry I., surnamed Beauclerc because of his schol
arly attainments, to whom reference has already been
made, did much to remedy this social evil and to hasten
the ultimate federation of the two races. He earnestly
sought to- conciliate his English subjects. Some have
suggested that he was moved to this by his dread of the
rival claims of his eldest brother, Robert, Duke of Nor
mandy, who had grown weary of his crusading advent
ures. For this purpose it is thought that he espoused
Maude, the daughter of Malcolm, king of Scotland,
and of Matilda, the sister of Edgar Etheling, who was
unquestionably the legal heir of Edward the Confessor.

Whatever the motive, this marriage contributed
greatly to the social uplifting of the English people.
The Normans resented the alliance as an open insult
to their race, and sought, says one historian, to retali
ate by nick-naming Henry "Farmer Godric. " The
English fully realized the significance of the event, and
were jubilant when Archbishop Anselm placed the
crown on the head of an English princess. "Hence
forward," says the same historian (Green), "the blood
of Cedric was intimately blended with the blood of
Rolfe the ganger the first Duke of Normandy."

Another long stride in the same direction was the
issuance by Henry of a charter whose principal pro
visions were the basis of the Great Charter of Runni-
mede. Other influences operated to lessen the estrange
ment between Norman and Saxon, but none nor all of
these, including the whole administration of Henry II
and the rapid growth of the burgher population, was


so effectual as when the two races stood shoulder to
shoulder with hand linked in hand in the face of a com
mon peril and in the establishment of a common liberty.
This last-named event brings us to the era of Magna

John, the seventh king of the Anglo-Norman
dynasty, came to the throne at an evil juncture. A
cloud of suspicion hung over him because of the mur
der of his own nephew, Arthur of Brittany, which
murder he is thought to have instigated. This promis
ing young prince was greatly endeared to the English
people, not only as the rightful heir to the throne
through Geoffrey, the oldest son of the late King Rich
ard, but because he bore the name of the great Keltic
hero. The last reason was a mere sentiment, but
sentiment is not to be lightly esteemed. In this in
stance at least it led many to regard the coronation of
John with pronounced disfavor. But he came to the
throne at an evil juncture for other reasons: he had as
a contemporary ruler Philip Augustus, the most chiv-
alric sovereign that had occupied the French throne
since the days of Charlemagne.

Philip was the Boulanger of that period, and was
intent on the solidarity of France. H e was not satis
fied that Normandy and Anjou and other provinces
should continue as appendages to the Norman kingdom
in England, and was determined to expel John from the
Continent. The new English sovereign was neither
the "coward" nor the "trifler" that Macaulay and
Hume have both affirmed. Whatever the defects of


his character (and these we do not seek to extenuate),
he was neither lacking in courage or capacity. It has
been justly said that he was the ablest of the Angevin
kings, and that the awful lesson of his life is that it was
no idle voluptuary, but the friend of Gerald and the
student of Pliny "that lost Normandy, became the
vassal of the pope, and died in a desperate fight against
English liberty."

The English people were greatly dissatisfied with his
civil administration, because of exactions under the
name of aids, benevolences, and similar unconstitutional
levies in which he exceeded even his iather, the lion-
hearted Richard. Nor could he inspire them with any
zeal for his continental wars waged for the recovery or
extension of his domains beyond the channel. But
above all were they indignant at his slavish surrender of
his crown and kingdom to Radulphe, the papal legate,
and his solemn oath to hold England as a fief of the
Holy See ; so that when he was driven from the Con
tinent by the disastrous battle of Beauvais he found
neither respect nor sympathy in his island kingdom.

The statement that he was abandoned by the entire
English nobility, except five faithful liegemen, is, per
haps, too highly colored, but it is true that in this
extremity he was confronted by "a nation in arms."

We have already intimated that the Magna Chatta
was no essential novelty, but was simply an elaboration
and broader application of the principles of the charter
promulgated by Henry I. This charter was confirmed
by Henry II., but in the later reigns of Stephen of


Blois and Richard I. it was overlooked, and gradually
faded from public memory. Just as the book of the
law was buried for long years in the rubbish of the tem
ple, until its providential discovery during the reign of
Hezekiah, so this priceless charter was afterward ex
humed from the dust and debris of a monastery. Man
kind are chiefly indebted for its resurrection to the
researches of Stephen Langton, the Archbishop of

In the mediaeval period of European history there
was no lack of soldier priests and warrior bishops who,
whether in broil or battle, oftentimes exhibited a per
sonal daring worthy of the Spartan Leonidas. Lang-
ton did not belong to this class of belligerent Church
men, but to those cardinal statesmen like Wolsey and
Richelieu of a later historic period. While Langton
had been thrust upon the English Church and people
by the arbitrary act of Innocent III., yet from the
beginning he manifested his sympathy for the English
people and his reverence for the traditions of Anglo-

In an assembly of the barons at St. Paul's, London,
he produced the charter of Henry I., and urged them
to make it the basis of their contest with King John.
They accepted Langton's counsels, and pledged them
selves to its faithful observance.

After divers evasions and subterfuges on the part of
the king, with the details of which we are not at pres
ent concerned, being hard pressed by the popular
clamor and yet more by the primate, he decided to


summon the barons and their retainers to a personal
conference at Runnimede, an island in the Thames,
between Staines and Windsor, henceforth to be es
teemed the incunabula gentis nostrae ; or, as Henry
Rogers has translated it, "the cradle of the British

Stephen Langton, with the advice and counsel of
the barons, had drawn up the charter which was sub
mitted to John in June, 1215, and after a brief discus
sion, it was signed, sealed, and delivered and ordered
to be published throughout the realm. As a guarantee
for its execution, the king, for the time being thor
oughly humbled, consented to surrender the city and
Tower of London to the keeping of the barons. In
addition he accepted the over-lordship of twenty-four
of their number, who were empowered by the explicit
terms of the Great Charter to levy war against John or
any of his royal successors who should attempt its revo
cation, or even its infringement. Against these obvi
ously hard conditions John raved and gnashed his teeth
in impotent rage.

It is now in order to examine some of the leading
stipulations of "this key-stone of English liberty."

It is worthy of observation that all classes, clergy
and laity, all sorts of men, from the greatest baron to
the humblest rustic, were provided for in one or another
of its articles.

"The freedom of elections" says Hume, "was secured
to the clergy, nor were they compelled to wait for a
royal conge d 1 elite and subsequent confirmation of their


choice. All checks upon appeals to Rome were re
moved and the fines imposed on the clergy for any
offense were to be proportional to their lay estates and
not to their ecclesiastical benefices.

Important restrictions were likewise imposed upon
the king, touching the so-called aids exacted of his ten
ants in chief. These were formally abolished, except
in three notable instances ; the ransoming of the king
in the event of his captivity, the knighting of his eldest
son, and the marrying of his eldest daughter. Nor was
he hereafter permitted to levy reliefs upon wards when
they came to their majority, or to exact of widows any
portion of their dower in their husbands' estates.
They were also restrained in the matter of compulsory
marriages, a royal franchise that had been greatly
abused to the sore discomfort of the nobility. It was
moreover stipulated that the greater barons should be
summoned to the Great Council by special writ, and
that the lesser barons should be summoned by the sher
iff forty days before the holding of its sessions. The
levying of all aids, except the three feudal aids already
mentioned, was strictly forbidden without the consent
of the Great Council first obtained. We note in this
the germ of a great principle which is now fundamental
to the British Constitution.

As from a grain of mustard seed there springs a
great tree in whose branches the fowls of heaven find
shelter, so from this germinal principle has sprung that
English law which requires that all money bills must
originate in the House of Commons, and that a vote of


supplies must be preceded by a redress of political
grievances. The English race in both hemispheres
have from time immemorial been exceedingly jealous
of any encroachment on this line. Emerson has force
fully said that the Englishman is no great stickler about
mere abstractions, "but if you lay hands on his day's
wages, or his cow, or his right of common, or his shop,
he will fight to the judgment." So the American
colonists, while yet a feeble folk, resented nothing so
much as the policy of the mother country in the matter
of parliamentary taxation. In this respect they occu
pied common ground with John Hampden, who went
to prison rather than submit to an unconstitutional levy
of twenty shillings. Charles I., despite the abuses of
the Star Chamber and of the High Commission court,
would have died quietly in his bed, and not as a royal
culprit on the scaffold, had he not violated this provi
sion of Magna Charta. From it came Triennial Par
liaments, Annual Mutiny bills, and eventually the over
throw of the rotten borough system of parliamentary
representation. Not a single pound sterling can be
drawn from the royal exchequer, either for the civil list
or the maintenance of the army or navy, without a vote
of the Commons.

Another striking feature of the Great Charter was
the provision for a fair and regular administration of
justice. Hitherto the court of common pleas was
ambulatory following the king's person from place to
place to the serious detriment of suitors and witnesses.
Hereafter this important tribunal was required to sit at


Westminster, and the judges of assize as well were
compelled to make four circuits annually throughout
the kingdom. It was likewise stipulated by the king
for himself and his successors that justice should in no
wise be sold, denied, or delayed a most valuable
safeguard against judicial negligence and corruption.

In behalf of the merchants and even itinerant trades
men it was agreed that there should be one weight and
one measure for the entire realm, and that this class
should have liberty to go and come at will, and should
be subjected to no unlawful tolls or imposts. In this
connection it was further stipulated that the "ancient
liberties" and "free customs" of London and other
cities, and even of boroughs, should be conserved.

Hume has well said that if the provisions of the
Magna Charta had ceased with those already named
there would have been little reason for popular rejoic
ing. But the mailed barons, who wrested the charter
from John, were fairly considerate of the welfare of
the lower classes. Wherefore it was further ordained
that "all the privileges and immunities above mentioned
granted to the barons against the king should be ex
tended by the barons to their inferior vassals." As an
additional security to the masses it was likewise
ordained that "the king should grant no writ empower
ing a baron to levy aid from his vassals, except the
three feudal aids." Likewise, in the 24th section, it
was provided that in felonies there should be no forfeit
ure of a villain cart or implements of husbandry, nor
should the small tradesman forfeit "all his wares." In


all such cases a sufficiency was left the offender to save
him from utter impoverishment. But the chief section
was that which furnished a guaranty for the per
sonal liberty of the subject. This is numbered the
39th, and is of itself worth all the blood and treas
ures that has been expended in its maintenance. This
famous section is in the words following: "No free
man" nullus homo liber "shall be taken or impris
oned, or disseized, or outlawed, or banished, or any
ways injured; nor will we pass upon him nor send upon
him except by the legal judgment of his peers or by
the law of the land." It is well understood that the
constructions of this section have been exceedingly
variant. Sir Edward Coke, the renowned jurist, says
in his institutes that " this section involves presentment
by a grand jury and subsequent conviction by a petit
jury. 1 ' Thus interpreted it strikes a death-blow at all
arbitrary arrests, and unlocks every prison door where
a victim of tyranny is confined. For hundreds of
years there have been frequent and flagrant violators of
these provisions. Indeed, it was never adequately
enforced until the great Writ of liberty was secured by
the Habeas Corpus act in the thirty-first year of Charles

It is not out of place to say that in the Bill of Rights
prefixed to the Constitution of Georgia, that great
popular tribune, Robert Toombs, caused to be inserted
this clause : "That the writ of habeas corpus shall never
be superseded." In the body of the Constitution,
however, was inserted the usual exception, "unless in


times of invasion or insurrection the public safety may
require it." In all cases, however, the party having
custody of the prisoner must make some return to the
magistrate issuing the writ. No greater tribute was
ever paid to the majesty of this law, and the sacredness'
of the writ based on it, than when Andrew Jackson,
after refusing for urgent military reasons obedience to
it, subsequently paid the fine of one thousand dollars
imposed by the civil magistrates without any sort of
compulsion. Such conduct was worthy the hero of
New Orleans.

But we here resume the thread of the story of the
Magna Chart a. It is evident that King John yielded
to the demands of the barons because there was, for the
time being, no possibility of successful resistance. He
embraced, however, the earliest opportunity to renew
the struggle. For a time, with the help of Rome, he
proved an overmatch for the barons and their allies.

The English crown was tendered to Lewis, the son of
Philip Augustus, and accepted. Upon the arrival of
Lewis, the French followers of John deserted him, and
after divers military disasters his kingly fortunes were
again reduced to the lowest ebb. Feeble and sore
broken, he died in a gluttonous debauch, abandoned of
God and despised of men.

Upon the king's death, the English patriots made
haste to rid themselves of the royal supremacy of
Lewis. By a sort of compromise he was induced to
withdraw to the continent. Thereupon, Henry, a nat
ural son of John, was crowned in his ninth year, with


William Earl Mareschal as Regent, the earliest example
of a regency in British history. The regent was distin
guished for his devotion to the Great Charter, and one
of the earliest acts of the new reign was its solemn con
firmation by king and council. These confirmations
were repeated oftentimes in future years. Indeed, so
immense was the popularity of the charter that for sev
eral centuries the sovereigns of England, when hard
beseiged by popular clamor, were wont to pledge them
selves in solemn form to its faithful observance. And
yet it is but sheer candor to say that its wholesome
restrictions were often trampled upon both by king and
Parliament. Notwithstanding, it would again and
again assert itself, so that after many bloody contests,
even down to the "glorious revolution" of 1688, from
which epochal event it has been futly recognized as the
basis of the British Constitution. Nor does it savor of
exaggeration to affirm that it is now thoroughly inter
woven with every fibre of the body politic ; and we
furthermore reverently say that its line has gone out
into all the earth and its sound to the ends of the world.
At the British Museum, in London, among other
precious relics of an heroic past, there is one that rivets
the gaze of every visitor. It is a tattered copy of the
Magna Charta, This venerable parchment is yellowed
by age and shriveled by fire, and from it depends the
royal seal of King John. What the Palladium was to
the countrymen of Priam is the Magna Charta to the
compatriots Wolfe, Sidney and Wellington. By the
illiterate English masses it may be reverenced as a sort


of national fetich, but by the enlightened Britton it is
regarded as the symbol and memorial of a gallant strug
gle that laid broad and deep the foundation of British
liberty. Through all the eight hundred years of
England's matchless history, it has been the inspiration
of her most illustrious leaders, whether in the arena of
arms or in the forum of high debate. In the fourteenth
century it nerved Henry V. at the gates of Harfleur,
when he once more summoned his discomfited troops
to the deadly breach, and gave them as their victorious

Now, God for Harry, England, and Saint George!

The imperishable memory of Runnimede steadied the
British infantry amid the storm and stress of Waterloo,
when, in the crisis of the conflict, the great Napoleon
hurled his "Old Guard" like a thousand catapults
against their bristling and impregnable squares

At a later day, even within the memory of men now
living, it emboldened the immortal six hundred when
they rode right into the "jaws of hell" at the dreadful
pass of Balaklava.

These same principles inspired England's great Com
moner, the elder Pitt, when in the house of Peers he
rebuked with the sternness of a Hebrew prophet the
ministry of Lord North, and concluded his masterful
Philippic by solemnly invoking the genius of the Brit
ish Constitution. They tingled in the nerves of our
own Henry when, standing in the old House of Bur
gesses, at Williamsburg, he roused a young nation to


arms by his eloquent denunciation of the Stamp Act
and the Boston Port bill.

Moreover, we take quite too narrow a view of the
scope of the Magna Charta if we circumscribe its influ
ence by any geographical limitations. Indeed, in some
way it has prompted every manful endeavor for relig
ious and political freedom that has signalized the
onward march of universal humanity. Not only among
English-speaking people, but among all liberty-loving
races, even from old Thermopylae to New Gettysburg,
the principles of that Great Charter have been the rally
ing cry of downtrodden and yet defiant patriotism.

William the Silent planted himself on these primal
truths of government when he cut the dykes of the Ger
man Ocean, and let loose the avenging sea on his coun
try's invaders and despoilers. So William Tell, the
hero of the Forest Cantons, felt their glow all uncon
scious, it may be, of their mighty meaning, when he
bearded "Gessler" at the gateway of Altorf, and when
again he shouted in the ear of the Alpine storm, com
pared with which "the storms of other lands are but
summer flaws, 1 ' the memorable words:

" Blow on, this is the land of liberty ! "

Every intelligent reader will have observed in our
hurried comment on the leading provisions of the Great
Charter that it contains no dreamy philosophism like
the "Utopia" of Sir Thomas Moore, or the "Contract
Social" of Rousseau. They will have noticed, likewise,
that its statements are more terse and exact than the


glittering generalities of our own Declaration of Inde
pendence. Rather it is a clear and yet concise embodi
ment of the principles of statesmanship that must ulti
mately work out the political redemption of mankind.
We speak words of truth and soberness when we say
that the enthronement of these principles among all
nationalities is the necessary prelude to that golden age
of which Isaiah prophesied and Virgil sung. Then, and
only then will the story of the Magna Charta be ended
amid the jubilee of humanity "redeemed, regenerated,
and disenthralled by the irresistible spirit of universal


A LATE, distinguished writer has said that the horo
loge of time seldom strikes the great eras of human his
tory. In the main these great eras are unheralded
whether by portent in earth or sky, and unannounced
by prophecy whether human or divine.

Not one of the four greater prophets of ancient Israel

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Online LibraryW. J. (William J.) ScottHistoric eras and Paragraphic pencilings → online text (page 1 of 14)