Friday, 1 July 2011

Olde English constitutional laws

In this post, I want to disinter some mediaeval laws which are still on the statute book and which have some constitutional significance.

These instruments, or some of them, are perhaps better categorised as "quasi-statutes" than as statutes.  Compare E.W.Ridges' definition of this term in his Constitutional Law of England: "These are not so much legislative enactments as solemn compacts made between the Crown and Parliament defining constitutional principles... and they mark the result of the great national and constitutional crises in English history. The principal of these great constitutional landmarks are Magna Carta, 1215; the Petition of Rights, 1625; the Bill of Rights, 1688; and the Act of Settlement, 1700."

1.  We may as well start with the residual parts of Magna Carta (the 1297 version) that remain in force:
THE GREAT CHARTER OF THE LIBERTIES OF ENGLAND, AND OF THE LIBERTIES OF THE FOREST; CONFIRMED BY KING EDWARD, IN THE TWENTY-FIFTH YEAR OF HIS REIGN.

EDWARD by the Grace of God King of England, Lord of Ireland, and Duke of Guyan, to all Archbishops, Bishops, &c. We have seen the Great Charter of the Lord Henry sometimes King of England, our Father, of the Liberties of England in these words:

HENRY by the Grace of God King of England, Lord of Ireland, Duke of Normandy and Guyan, and Earl of Anjou, to all Archbishops, Bishops, Abbots, Priors, Earls, Barons, Sheriffs, Provosts, Officers, and to all Bailiffs, and other our faithful Subjects, which shall see this present Charter, Greeting: Know Ye, that We, unto the honour of Almighty God, and for the salvation of the souls of our Progenitors and Successors Kings of England, to the advancement of Holy Church and amendment of our Realm, of our meer and free will, have given and granted to all Archbishops, Bishops, Abbots, Priors, Earls, Barons, and to all Freemen of this our Realm, these Liberties following, to be kept in our Kingdom of England for ever.
I. Confirmation of Liberties.
FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable. We have granted also, and given to all the Freemen of our Realm, for Us and our Heirs for ever, these Liberties under-written, to have and to hold to them and their Heirs, of Us and our Heirs for ever.
IX. Liberties of London, &c.
THE City of London shall have all the old Liberties and Customs which it hath been used to have. Moreover We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, and all other Ports, shall have all their Liberties and free Customs.
XXIX. Imprisonment, &c. contrary to Law. Administration of Justice. 
NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free
Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.
XXXVIII.
Reserving to all Archbishops, Bishops, Abbots, Priors, Templars, Hospitallers, Earls, Barons, and all Persons, as well Spiritual as Temporal, all their free Liberties and free Customs, which they have had in time passed. And all these Customs and Liberties aforesaid, which We have granted to be holden within this our Realm, as much as appertaineth to Us and our Heirs, we shall observe; and all Men of this our Realm, as well Spiritual as Temporal, as much as in them is, shall observe the same against all Persons, in like wise. And for this our Gift and Grant of these Liberties, and of other contained in our Charter of Liberties of our Forest, the Archbishops, Bishops, Abbots, Priors, Earls, Barons, Knights, Freeholders, and other our Subjects, have given unto Us the Fifteenth Part of all their Moveables. And We have granted unto them on the other part, that neither We nor our Heirs shall procure or do any thing whereby the Liberties in this Charter contained shall be infringed or broken. And if any thing be procured by any person contrary to the premises, it shall be had of no force nor effect. These being Witnesses; Lord B. Archbishop of Canterbury, E. Bishop of London, J. Bishop of Bathe, P. of Winchester, H. of Lincoln, R. of Salisbury, W. of Rochester, W. of Worcester, J. of Ely, H. of Hereford, R. of Chichester, W. of Exeter, Bishops; the Abbot of St. Edmonds, the Abbot of St. Albans, the Abbot of Bello, the Abbot of St. Augustine's in Canterbury, the Abbot of Evesham, the Abbot of West-minster, the Abbot of Bourgh St. Peter, the Abbot of Reding, the Abbot of Abindon, the Abbot of Malmsbury, the Abbot of Winchcomb, the Abbot of Hyde, the Abbot of Certesey, the Abbot of Sherburn, the Abbot of Cerne, the Abbot of Abbotebir, the Abbot of Middleton, the Abbot of Seleby, the Abbot of Cirencester; H. de Burgh Justice, H. Earl of Chester and Lincoln, W. Earl of Salisbury, W. Earl of Warren, G. de Clare Earl of Gloucester and Hereford, W. de Ferrars Earl of Derby, W. de Mandeville Earl of Essex, H. de Bygod Earl of Norfolk, W. Earl of Albemarle, H. Earl of Hereford, J. Constable of Chester, R. de Ros, R. Fitzwalter, R. de Vyponte, W. de Bruer, R. de Muntefichet, P. Fitzherbert, W. de Aubenie, F. Gresly, F. de Breus, J. de Monemue, J. Fitzallen, H. de Mortimer, W. de Beauchamp, W. de St. John, P. de Mauly, Brian de Lisle, Thomas de Multon, R. de Argenteyn, G. de Nevil, W. de Mauduit, J. de Balun, and others.
We, Ratifying and approving these Gifts and Grants aforesaid, confirm and make strong all the
same for Us and our Heirs perpetually, and by the Tenor of these Presents do renew the same:
Willing and granting for Us and our Heirs, that this Charter and all and singular his Articles for ever shall be stedfastly, firmly, and inviolably observed; and if any Article in the same Charter contained yet hitherto peradventure hath not been kept We will and by authority royal command from henceforth firmly they be observed.
In Witness whereof We have caused these our Letters Patents to be made. T. Edward our son at Westminster, the twenty-eighth day of March in the twenty-eighth year of our Reign.
2.  Here is the remaining residue of the First Statute of Westminster, enacted in 1275:
These be the Acts of King Edward, Son to King Henry, made at Westminster at his first Parliament general after his Coronation, on the Monday of Easter Utas, the Third Year of his Reign, by his Council and by the assent of Archbishops, Bishops, Abbots, Priors, Earls, Barons, and all the Commonalty of the Realm, being thither summoned: Because our Lord the King had great zeal and desire to redress the State of the Realm in such Things as required Amendment for the common profit of Holy Church, and of the Realm: And because the State of the Holy Church had been evil kept, and the Prelates and Religious Persons of the Land grieved many ways, and the People otherwise intreated than they ought to be, and the Peace less kept, and the Laws less used, and the Offenders less punished, than they ought to be, by reason whereof the People of the Land feared the less to offend; the King hath ordained and established these Acts underwritten, which he intendeth to be necessary and profitable unto the whole Realm.

V. Freedom of Election. 
AND because Elections ought to be free, the King commandeth upon great Forfeiture, that no
Man by Force of Arms, nor by Malice, or menacing, shall disturb any to make free Election.
3.  Next up is Statute the Fifth of 1351, passed in the same year as the Treason Act 1351, which also remains in force.
A STATUTE made at WESTMINSTER; In the Parliament holden in the Feast of Saint Hilary; In the TWENTY-FIFTH Year of the Reign of K. EDWARD the THIRD.
IV None shall be taken upon Suggestion without lawful Presentment;
ITEM, Whereas it is contained in the Great Charter of the Franchises of England, that none shall be imprisoned nor put out of his Freehold, nor of his Franchises nor free Custom, unless it be by the Law of the Land; It is accorded assented, and stablished, That from henceforth none shall be taken by Petition or Suggestion made to our Lord the King, or to his Council, unless it be by Indictment or Presentment of good and lawful People of the same neighbourhood where such Deeds be done, in due Manner, or by Process made by Writ original at the Common Law; nor that none be out of his Franchises, nor of his Freeholds, unless he be duly brought into answer, and forejudged of the same by the Course of the Law; and if any thing be done against the same, it shall be redresseed and holden for none.
4.  The next piece of legislation is an unnamed act on the liberty of the subject, citable as 1354 c.3:
III. None shall be condemned without due Process of Law.
ITEM, That no Man of what Estate or Condition that he be, shall be put out of Land or Tenement, nor taken, nor imprisoned, nor disinherited, nor put to Death, without being brought in Answer by due Process of the Law.
5.  The next statute (1368 c.3) is also unnamed and likewise deals with the observance of due legal process:
A STATUTE MADE AT WESTMINSTER ON THE FIRST DAY OF MAY, IN THE FORTY-SECOND YEAR OF KING EDWARD III.
III.
ITEM, At the Request of the Commons by their Petitions put forth in this Parliament, to eschew the Mischiefs and Damages done to divers of his Commons by false Accusers, which often-times have made their Accusations more for Revenge and singular Benefit, than for the Profit of the King, or of his People, which accused Persons, some have been taken, and sometime caused to come before the King's Council by Writ, and otherwise upon grievous Pain against the Law: It is assented and accorded, for the good Governance of the Commons, that no Man be put to answer without Presentment before Justices, or Matter of Record, or by due Process and Writ original, according to the old Law of the Land: And if any Thing from henceforth be done to the contrary, it shall be void in the Law, and holden for Error.
6.  Finally, taking us into the Tudor period, we have an extract from the Privilege of Parliament Act 1512:
II. Suits against any for Bills or Speeches &c. in Parliament declared void.
And that sutes accusementes condempnacions execucons fynes amciamentes punysshmentes correccons grevances charges and imposicions putte or had or here after to be put or hadde unto or uppon the said Richard and to evy other of the pson or psons afore specified, that nowe be of this psent parliament or that of any Parliament herafter shalbe for any bill spekyng reasonyng or declaryng of any mater or maters concnyng the pliament to be cmened and treated of, be utterly voyd and of none effecte. And that if the said Richard Strode or any of all the said oder pson or psons here after be vexed trobeled or other wise charged for any causes as is aforseid, that then he or they and evy of theym so vexed or troubeled of and for the same to have accion uppon the case ageynst evy such pson and psons so vexyng or troubelyng any contarie to this ordynaunce and pvysion, in the which accion the partie greved shall recover trebyll damages and costes....