John Law

“ John, resenting bitterly the attitude of the northern barons who had refused alike to accompany him to Poitou and to pay scutage, determined to take the law into his own hands. Without summoning his opponents before a commune concilium of his feudal tenants, without even a trial and sentence by one of his Benches, without making any effort to investigate the justice or injustice of their pleas for refusing, he set out with an army to punish them. ”

“ John is usually held to have agreed to the abolition of payments of every sort for judicial writs and other fees of court. Justice, unlike other valuable commodities, was, it would appear, to be obtained for nothing—an ideal never yet attained in any civilized community. A body of highly trained clerks could not be kept by the king to issue writs gratuitously to all who asked them, and a staff of judges, “who knew the law and meant to keep it,” to determine pleas which would bring in no return to the Crown. ”

“ Law is a bottomless pit; it is a cormorant, a harpy, that devours everything. John Bull was flattered by the lawyers that his suit would not last above a year or two at most; that before that time he would be in quiet possession of his business; yet ten long years did Hocus steer his cause through all the meanders of the law and all the courts. No skill, no address was wanting, and, to say truth, John did not starve the cause; there wanted not yellowboys to fee counsel, hire witnesses, and bribe juries. ”

“ Absque judicio becomes nisi per legale judicium parium suorum vel per legem terre, thus guarding, not merely against the more obvious evil—execution without judgment—but also against John’s subtler device for attacking his enemies by a travesty of judicial process. The Charter asks not only for a “judgment,” but for a “judgment of peers” and “according to the law of the land.” Two species of irregularities were condemned by these words; and these will be explained in the two following subsections.
(2) Per judicium parium: every judgment must be delivered by the accused man’s “equals.” ”

“ It is no uncommon boast in the mouth of Englishmen, that the system of jurisprudence under which they have the happiness to live, is the most perfect the world has ever seen. Having its foundation in those cabalistic words, "Nullus liber homo," &c., engraved with an iron pen upon the tablets of the constitution by the barons of King John, the criminal law, in their estimation, has been steadily improved by the wisdom of successive ages, until, in the present day, it has reached a degree of excellence which it were rashness to suppose can by any human sagacity be surpassed. ”

“ This was verified in the case of John Bull, who, from an honest and plain tradesman, had got such a haunt about the Courts of Justice, and such a jargon of law words, that he concluded himself as able a lawyer as any that pleaded at the bar or sat on the bench. He was overheard one day talking to himself after this manner: "How capriciously does fate or chance dispose of mankind. How seldom is that business allotted to a man for which he is fitted by Nature. It is plain I was intended for a man of law. How did my guardians mistake my genius in placing me, like a mean slave, behind a counter? ”

“ In London he gambled, drank and flirted till in April 1694 a love intrigue resulted in a duel with Beau Wilson in Bloomsbury Square. Law killed his antagonist, and was condemned to death. His life was spared, but he was detained in prison. He found means to escape to Holland, then the greatest commercial country in Europe. ”

“ We will not retain beyond one year and one day, the lands of those who have been convicted of felony, and the lands shall thereafter be handed over to the lords of the fiefs.
I. The Crown’s Claim to the Property of Felons. The Crown had gradually established certain rights, not too clearly defined, in the property of all criminals formally 395indicted and sentenced for felony. John, here as elsewhere, took full advantage of the vagueness of the law to stretch prerogative to its utmost limit. Magna Carta, therefore, attempted to define the exact boundaries of his rights. ”

“ The barons in 1215, however, in asking this reform, were not insisting on any startling innovation, but demanding merely the strict observance of a rule long recognized. During most of John’s reign, a court did sit at Westminster dispensing justice, with more or less regularity; and there most “common pleas” were tried, unless John ordered otherwise. [536] Magna Carta insisted that all exceptions must cease; the rule of law must supersede the royal caprice. ”

“ But what can I do, Mr Johnson? She is of age, and they have broken no law. I cannot issue a warrant and hale them back to Oxfordshire. If they are not yet wed I have no authority to dissuade, for I am not a kinsman, not even a friend. I cannot forbid the banns, for I have no certain knowledge of any misdeeds of this Sir John. I have no locus, as the lawyers say, for my meddling. But in any case the errand must be futile, for if you are right and she has fled with him, they will be married long ere we can overtake them. What you ask from me is folly. ”

“ It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. [p178]
So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. ”

“ This seemed a sound argument—to John.
"But what did the Lochgarra people say to you as they went by?" Mary demanded. "Didn't you see they were armed with sticks? Don't you know there will be fighting and bloodshed?"
"Aw, there may be a brokken head or two," said John, with a demure smile.
"Well, it is your duty to prevent that! These men have no right to take the law into their own hand. If the strangers will not go peaceably, they must be removed by the law—not by beating them with sticks. And you are standing back here—and letting them do what they like!" ”

“ The sentence was commuted to a fine, upon the ground that the offence only amounted to manslaughter. An appeal being lodged by a brother of the deceased, Law was detained in the King's Bench, whence, by some means or other, which he never explained, he contrived to escape; and an action being instituted against the sheriffs, he was advertised in the Gazette, and a reward offered for his apprehension. He was described as "Captain John Law, a Scotchman, aged twenty-six; a very tall, black, lean man ”

“ He stated in one breath the principle of judicial review and the doctrine of enumerated powers. If, said he, Congress “make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard; they would not consider such a law as coming within their jurisdiction. They would declare it void.” 1 On the other hand, Marshall scoffed at the idea that the citizen of a State might bring an original action against another State in the Supreme Court. ”

“ John’s Magna Carta contents itself with the brief enactment “that a widow shall have her dower.” The Charter of 1217 goes farther, containing an exact statement of the law as it then stood:—"The widow shall have assigned to her for her dower the third part of all her husband’s land which he had in his lifetime (in vita sua) unless a smaller share had been given her at the door of the church." ”

“ They might take the veil, become dead in law, and forfeit their fiefs to escape the burdens inherent in them. Only the cloister could afford them shelter; nowhere in the outer world were they safe. The other way of escape was to outbid objectionable suitors. This was not always possible, for John was predisposed to favour the suit of his foreign gentlemen of fortune, thus befriending his creatures while adding to the slender number of personally loyal tenants-in-capite. John’s greed was insatiable, and brief entries in his Exchequer Rolls condense the story of many a tragedy. ”

“ Yetmore gazed at him earnestly for a few moments, and then said: “It’s against the law, I suppose.”
“Oh, yes,” replied Long John, with a careless shrug of his shoulders. “It’s against the law all right; but what does that matter to you? I’m the one to do the job, and I’m the only one [Pg 215] the law can touch, if it can touch any one; and I don’t mean that it shall touch me. It’s safe and it’s sure.” ”

“ John was a bright young lawyer then, a graduate of Harvard, where he had been sent in hopes that he would become a minister, for one-half the students then at Harvard were embryo preachers. But John did not take to theology.
He had witnessed ecclesiastical tennis and theological pitch and toss in Braintree that had nearly split the town, and he decided on the law. One thing sure, he could not work: he was not strong enough for that—everybody said so. And right here seems a good place to call attention to the fact that weak men, like those who are threatened, live long. ”

“ The framers of the Petition of Right [815] read the same words as a prohibition, not only of imprisonment “without any cause showed” but also of proceedings under martial law, thus interpreting the aims of King John’s opponents in the light of the misdeeds of King Charles, and applying to the rude system established by Henry of Anjou reforms more appropriate to the highly developed administration of the Tudors. ”

“ Congress will soon have something else to do than to proscribe and persecute an innocent, law-abiding and patriotic people. Of all bodies in the world, they can least afford to remove the bulwarks that bind society together in this nation, to recklessly trample upon human freedom and rights, and to rend and destroy that great Palladium of human rights—the Constitution of the United States. Ere long they will need all its protecting influence to save this nation from misrule, anarchy and mobocratic influence. ”

“ Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the Government, to undertake here to inquire into the decree of its necessity would be to pass the line which circumscribes the judicial department and to tread on legislative ground. ”

“ During that time the little village became an important watering-place, and Law was foremost in promoting the religious, educational, and social interests of the town. The parish church was thrice enlarged; three other churches were built and endowed, largely at Law's own expense; and excellent schools were built. A dispute having arisen among the townspeople about the purchase of a town-hall, Law bought the building at a cost of 4,000l. and presented it to the town. In 1862, on the death of Dean Rice, Law was nominated by Lord Palmerston to the deanery of Gloucester. ”

“ which ought seldom, if ever, to be decided in the affirmative, in a doubtful case.' 'The opposition between the constitution and the law should be such, that the judge feels a clear and strong conviction of their incompatibility with each other.' And in the Dartmouth College case, 4 Wheat. ”

“ If such things could happen after the grant of the charters of 1215 and 1217, it is not likely that the foresters were more merciful before. John was always too indifferent or too busy to redress such wrongs. The only guarantee against their recurrence in the future was that honest officials should be selected. Magna Carta sought to secure this by the provisions of chapter 45, which (occurring amongst the forest clauses) directed that no justiciar, sheriff, constable or bailiff should be appointed, except such as knew the law of the land and meant to observe it. ”

“ On the whole, the charter contains little that is absolutely new. It is restorative. John in these last years has been breaking the law; therefore the law must be defined and set in writing. [197] This view seems, on the whole, a correct one; the insurgents in 1215 professed to be demanding nothing new, but merely a return to the good laws of Edward Confessor, as supplemented by the promises contained in the charter of Henry I. An unbroken thread runs back from Magna Carta to the laws and customs of Anglo-Saxon England and the old coronation oaths of Ethelred and Edgar. ”

“ Law was a most liberal supporter of religious societies and public charities, and his private beneficence, for the most part secret, was munificent. He died 25 Nov. 1884, aged 87, and was buried in the Gloucester cemetery. He was unmarried.
Law was throughout his life one of the leaders of the evangelical party in the church, and one of the last of the old school. While at Weston he held from time to time large meetings of the chief members of his school of thought, at which were originated many institutions which have since become important. ”

“ Public law cannot free itself from the forms, the individualistic forms of private law."
193. Pollock and Maitland, I. 150, emphasize this disparity. “In form a donation, a grant of franchises freely made by the king, in reality a treaty extorted from him by the confederate estates of the realm, ... it is also a long and miscellaneous code of laws.” Cf. also Ibid., I. 658.
III. Magna Carta: its Contents and Characteristics. The confirmation of the rights enumerated in the sixty-three chapters of the Charter represented the price paid by John for the renewed allegiance of the rebels. ”