Gambar halaman

and Australia. Many of the provisions of the United States Constitution and other provisions of our statutory or unwritten law can be traced back to this charter. It should be borne in mind, however, that mingled with the provisions of such great and far-reaching importance, were many others of merely temporary interest. The sixty-three Articles of this Magna Charta may be divided into five clearly defined provisions: 1. Those concerned with feudal obligations. 2. Those having relation to the administration of law or justice. 3. The provisions relating to cities, boroughs and commerce. 4. Those directed against purveyance and other exactions. 5. And finally those fundamental principles whose importance have continued down to the present day. Four clauses, viz.: the twelfth, fourteenth, thirty-ninth and fortieth, stand out preëminently from the other fifty-nine. In the first two of these are to be seen the declaration of the right of the people to be represented in Parliament and of the principle that taxation should not exist without representation. In the last two may be seen the germs of the habeas corpus and trial by jury.

Clause 12: "No scutage or aid shall be imposed unless per commune concilium regni, except in the three cases of ransoming the king's person, making his oldest son a knight, and once for marrying his eldest daughter, and for these the aids shall be reasonable. In like manner it shall be concerning the aids of the City of London.

Clause 14: “In order to take the common council of the nation in the imposition of aids for (other than the three regular feudal aids) and of scutage, the king shall cause to be summoned the Archbishops, Bishops, earls and greater barons, by writs directed to each severally, all other tenants in capite by a general writ addressed to the sheriff of each shire; a certain day and place shall be named for their meeting, of which forty days' notice shall be given; in all letters of summons the cause of summons shall be specified, and the consent of those present on the appointed day shall bind those who, though summoned, shall not have attended.”

Clause 39: "No freeman shall be taken or imprisoned, or disseized, or outlawed, or exiled, or anyways destroyed; nor shall we go upon him, nor shall we send upon him, unless by the lawful judgment of his peers or by the law of the land.”

Clause 40: “To none will we sell, to none will we deny or delay right or justice."

$ 28. Contest between the king and the English people during the reign of Henry III.—The thirteenth century in English history foreshadowed the Seventeenth.

The great movement, which in the former century, wrested the Magna Charta from John, at Runnymede, supported Simon de Montfort in his resistance to Henry III, and produced the evolution of the English Parliament out of the Curia Regis, bears a very strong resemblance to that movement which, four centuries later, sent one of the Stuart kings to the block and another into exile, and secured for the English people the Petition of Right, the Habeas Corpus Act, and the Bill of Rights.

The reformers of the Thirteenth century, however, were men whose political ideas were far ahead of their times, with the result that the immediate effect of most of their work was only transient, and its greatest importance lies in the example which it furnished for the future.

The attempted reforms of Simon de Montfort, if they could have received the support of England at this time would have very largely anticipated the work of the Seventeenth century; as it is, the brief period of the rule of Simon de Montfort is the brightest spot in the history of English liberty prior to the days of the Long Parliament. De Montfort and his followers, it is true, claimed to proclaim no new political principles, nor to demand any innovation or new grants of liberties from the king. In this they resembled the English reformers of preceding and succeeding generations. From the time when the Anglo-Saxons, in the Eleventh and Twelfth centuries, cried for the restoration of the good old laws of Edward the Confessor, to the time when English liberties were finally secured by the Bill of Rights, all reforms in the English Government were defended by their proposers, as not being innovations, but merely as a return to the old liberties of their forefathers.

What the English people demanded of Henry III was his observance of the principles as laid down in the Magna Charta, an observance which he often promised but seldom fulfilled. The liberties of England seemed to perish with the fall of de Montfort at the battle of Eversham, but this struggle was not to be without its effect upon the future of England, and most prominent among the results which can be traced back to this great contest was the impetus which it had given to the development of the English Parliament.

$ 29. The Curia Regis and the origin of the English Parliament.-While in theory all the powers of the old Saxon Witenagemote passed to the Curia Regis of the Norman Kings, in reality its legislative powers were soon reduced to a mere shadow. The principal duties of the Curia Regis during the reigns of the early Norman Kings were to assist the King in his judicial and administrative work. Its legislative functions while at this time slight, represented the entire share which either nobility or commonality had in the making of English laws. In its constitution the Curia Regis of the Norman Kings was a court of the king's feudal vassals, which each tenant in chief of the king had the right to attend. In practice this attendance soon became limited to the greater barons and higher ecclesiastics and the officials of the King. The thirteenth century saw the introduction of the elective system in the determination of the membership of the Curia Regis; it was the extension of this system which was to turn the Curia Regis into the English Parliament; to play a leading part in the preservation of English liberties and finally to result in the development of that system of representative government which has been the greatest political contribution made to the world by the Anglo-Saxon race.

The elective method was occasionally used as early as the reign of King John for the purpose of choosing representatives of the royal desmesnes and of the lesser barons. It is not, however, until this time that the principle was used for the purpose of securing representation to the cities and boroughs, the centers of the intellectual and commercial life of England and the backbone of the power of English commerce.

With the overthrow of de Montfort this representative system might well have seemed to have been destroyed. Edward I, however, had learned, and was willing to learn, more from De Montfort than military tactics, and we see the Parliament of 1295 created upon the same basis as De Montfort's famous Parliament of thirty years before.

$ 30. The English Justinian.--Edward I's Parliament of 1295 stands forth as a landmark in the constitutional and political history of England. The great work of his reign, however, leaving out of consideration his military campaigns, was along the line of the development of English private law; it is his work here which has earned for him the title of the English Justinian.

The reign of Edward 1 is one of definition, of development, of the settlement of details; the work of his reign may be said to have been a finishing and polishing of the work which had been rough hewn by his predecessors. We find in it no such great work as the reorganizing of the judicial system by Henry II; no great charter of liberties like the Magna Charta ; no such brilliant political innovation as that contained in the Parliament of Simon De Montfort, but all of these needed the work of an Edward I for their completion. The judicial sistem of Henry II was developed into a higher degree of efficieney than it ever attained in the reign of the first Plantagenet King. The Magna Charta was reaffirmed, and in the main followed. The revolutionary expedient of Simon De Montfort was made part of the regular law of the land.

The reign of Edward I was of the greatest service to England; he is one of the few really great kings who ever ruled over that country. It was his fortune to rule at precisely that period of the English history where his brilliant talents would be of the greatest benefit to his nation. Of the details of the statutes of Edward I in the realm of private law little need be said; but the names of such statutes as that of Westminster II, De Donis and Quia Emptores are familiar to every lawyer.

$31. The development of the House of Commons during the Fourteenth century. The history of England during the thirteenth century, and again during the fifteenth centered around the nobility of England; but in the fourteenth century for the first time, and for the last time prior to the seventeenth century, we find a prominent place taken by the House of Commons. It was, in fact, during this century that Parliament became definitely divided into two houses. The reign of Edward III, which occupied exactly one-half of the fourteenth century, was mainly a period of foreign warfare, which took the King for long periods of time out of England and required constant calls upon Parliament for financial support. It was upon the House of Commons, as the special representatives of the commercial class of the nation, that the responsibility of granting these supplies chiefly fell, and it was through this power of the

purse that the House of Commons for the first time obtained a position of real importance in the government of England. Even in the reign of Edward the Third's father the Commons had asserted their power of granting a subsidy "upon this condition": That the King should take advice and grant redress upon certain articles in which their grievances were set forth. The reign of Edward II, from a constitutional standpoint, is in the main very similar to that of Henry III, and in the resistance to the King the leading part is taken by the barons of England. The attack upon Parliament and upon the King's favorites is the forerunner of the right of Parliament to hold the ministers and the King responsible to them for their conduct. Parliamentary history of the reign of Edward the Third is very full, there being no less than forty-eight sessions of Parliament held in the fifty years of his reign. Twice during his reign provisions for an annual session of Parliament were adopted. During this long reign the commons succeeded in establishing five great rights-first, that all taxation without the consent of Parliament should be illegal; second, that Parliament had the right to examine public accounts and appropriate supplies; third, the necessity for the concurrence of both houses in legislation; fourth, the right of the commons to inquire into and amend the abuses of the administration ; fifth, that Parliament had the right to impeach the King's ministers for misconduct.

This last right, that of impeachment, was actually exercised by the so-called “Good Parliament" of 1376. It is strongly in

« SebelumnyaLanjutkan »