The Magna Carta has long been considered by the English-speaking peoples as the earliest of the great constitutional documents which give the history of England so unique a character; it has even been spoken of by some great authorities as the “foundation of our liberties”. That the charter enjoyed an exaggerated reputation in the days of Coke and of Blackstone, no one will now deny, and a more accurate knowledge of the meaning of its different provisions has shown that a number of them used to be interpreted quite erroneously. When allowance, however, has been made for the mistakes due to several centuries of indiscriminating admiration, the charter remains an astonishingly complete record of the limitations placed on the Crown at the beginning of the thirteenth century, and an impressive illustration of what is perhaps a national capacity for putting resistance to arbitrary government on a legal basis.
The memories of feudal excess during the reign of Stephen were strong enough and universal enough to give Henry II twenty years of internal peace for the establishment of his masterful administration, and, even when the barons tried to “wrest the club from Hercules” in 1173-4, they trusted largely to the odium which the king had incurred from the murder of St. Thomas. The revolt failed and the Angevin system was stronger than ever, so strong indeed that it was able to maintain its existence, and even to develop its operations, during the absence of Richard I. The heavy taxation of his reign and the constant encroachments of royal justice roused a feeling among the barons which showed itself in a demand for their “rights” put forward at John’s accession. It is indeed obvious that, quite apart from acts of individual injustice, the royal administration was attacking in every direction the traditional rights of the barons, and not theirs only. St. Thomas had saved the independence of the Church, and it now remained for the other sections of the community to assert themselves.
Historians have probably been over-tender to the Angevins, for to them feudalism is the enemy; and the increase of the royal power, to be checked later on by a parliamentary system, is the clear line of constitutional development; but, however satisfactory we may think the ultimate result, there was the immediate danger of a rule which was arbitrary and might be tyrannical. The king had acquired a power which he might abuse, and the acts of the reign of John are sufficiently on record to show how much a bad king could do before he became intolerable. Those who drew up the Great Charter never pretended to be formulating a syllabus of fundamental principles, nor was it a code any more than it was a declaration of rights. It was a rehearsal of traditional principles and practices which had been violated by John, and the universality of its scope is the measure of the king’s misgovernment.
During the early part of John’s reign the loss of the greater part of his French possessions discredited him, and led to constant demands for money. Scutage, which had originally been an alternative for military service occasionally permitted, became practically a new annual tax, while fines were exacted from individuals on many pretexts and by arbitrary means. Any sign of resistance was followed by a demand for a son as a hostage, an intensely irritating practice which continued throughout the reign. The quarrel with Innocent III and the interdict (1206-13) followed hard on the foreign collapse, and during that period John’s hand lay so heavily on churchmen that the lay barons had a temporary respite from taxation, though not from ill-government. When peace was finally made with the pope, the king seems to have thought that the Church would now support him against the mutinous barons of the North; but he counted without the new archbishop. Langton showed from the first that he intended to enforce the clause in John’s submission to the pope which promised a general reform of abuses, and his support provided—the cause with the statesmanlike leadership it had hitherto lacked.
The discontented barons met at St. Albans and St. Paul’s in 1213, and Langton produced the Charter of Henry I to act as a model for their demands. Civil war was deferred by John’s absence abroad, but the defeat of Bouvines sent him back still more discredited, and war practically broke out early in 1215. Special charters granted to the Church and to London failed to divide his enemies, and John had to meet the “Army of God and Holy Church” on the field of Runnymede between Staines and Windsor. He gave way on nearly every point, and peace was concluded probably on June 19. The charter which was then sealed was really a treaty of peace, though in form it was a grant of liberties.
The clauses, or chapters, of the Magna Carta are not arranged on any logical plan, and a number of systems of classification have been suggested, but, without attempting to summarize a document so complex, it may be sufficient here to point out the general character of the liberties which it guaranteed. In the opening clause the “freedom” of the Church was secured, and that vague phrase was defined at least in one direction by a special mention of canonical election to bishoprics. Of the remaining sixty clauses the largest class is that dealing directly with the abuses, from which the baronage had suffered, fixing the amount of reliefs, protecting heirs and widows from the Crown and from Jewish creditors, preserving the feudal courts from the invasions of royal justice, and securing the rights of baronial founders over monasteries. The clauses enforcing legal reforms were of more general interest, for Henry II‘s “possessory assizes” were popular among all classes, and all suffered from arbitrary amercements and from insufficiently controlled officials. These assizes were to be held four times a year, and amercements were to be assessed by the oath of honest men of the neighborhood. John had allowed the royal officials a very great and very unpopular latitude, and many clauses of the charter were directed to the control of the sheriffs, constables of royal castles, and especially of the numerous forest officials. The commercial classes were not altogether neglected. London and the other boroughs were to have their ancient liberties, and an effort was made to secure uniformity of weights and measures. The clause, however, which protected foreign merchants, was more to the advantage of the consumer than to that of the English competitor.
There is little in the charter which can be called a statement of constitutional principle; two articles have, however, been treated, not without reason, as such by succeeding generations. Chapter xii, which declares that no extraordinary scutage or aid shall be imposed except by common counsel of the kingdom, may be taken as an assertion of the principle “no taxation without consent”. How the counsel of the kingdom was to be taken is explained in chapter xiv which describes the composition of the Great Council. Chapter xxxix prescribes that “no freeman shall be arrested or detained in prison or deprived of his freehold… or in any way molested… unless by the lawful judgment of his peers and by the law of the land”.
The chief object of this clause was to prevent execution before trial, and so far it is certainly the assertion of a far-reaching constitutional principle, but the last two phrases have been the subject of much wild interpretation. “Judgment by his peers” was taken to mean “trial by jury”, and “the law of the land “to mean “by due process of law”; as a matter of fact, both taken together expressed the preference of the barons for the older traditional and feudal forms of trial rather than for judgment by the court of royal nominees instituted by Henry II and abused by John. The principle asserted by this clause was, therefore, of great constitutional importance, and had a long future before it, but the actual remedy proposed was reactionary. The final chapter was in a sense the most important of all for the moment, for it was an effort to secure the execution of the charter by establishing a baronial committee of twenty-five with the admitted right to make war on the king, should they consider that he had violated any of the liberties he had guaranteed.
Two chief criticisms have been brought against the Magna Carta, that of being behind the times, reactionary, and that of being concerned almost entirely with the “selfish” interests of the baronage. Reactionary the charter certainly was; in many respects it was a protest against the system established by Henry II, and, even when it adopted some of the results of his reign such as the possessory assizes and the distinction between greater and lesser barons, it neglected the latest constitutional developments. It said nothing on taxation of personality or of the spiritualities of the clergy; it gave no hint of the introduction of the principle of representation into the Great Council: yet the early stages of all these financial and constitutional measures can be found in the reign of John.
Bishop Stubbs expressed in a pregnant phrase this characteristic of the charter when he called it “the translation into the language of the thirteenth century of the ideas of the eleventh, through the forms of the twelfth”. It is a reproach, however, which it bears in good company, for all the constitutional documents of English history are in a sense reactionary; they are in the main statements of principles or rights acquired in the past but recently violated. The charge of “baronial selfishness” is a more serious matter, for one of the merits claimed for the charter, even by its more sober admirers, is that of being a national document. It must be admitted that many of the clauses are directed solely to the grievances of the barons; that some of the measures enforced, such as the revival of the baronial courts, would be injurious to the national interests; that, even when the rights of freemen were protected, little security if any was given to the numerous villein class. Nor are these criticisms disallowed by chapter Ix, which declares in general terms that liberties granted by the king to his men shall in turn be granted by them to their vassals. Such a statement is so general that it need not mean much. It is more important to notice that all the numerous clauses directed to the controlling of the royal officials would benefit directly or indirectly all classes, that after all what the country had been suffering from was royal and not baronial tyranny, and that it was the barons and the clergy who had been, for the most part, the immediate victims. Finally the word “selfish” must be used cautiously of an age when, by universal consent, each class had its own liberties, and might quite legitimately contend for them.
Though in form a free grant of liberties, the charter had really been won from John at the sword’s point. It could not in any sense be looked upon as an act of legislation. He had accepted the terms demanded by the barons, but he would do so only so long as he was compelled to. He had already taken measures to acquire both juridical and physical weapons against his enemies by appealing to his suzerain, the pope, and sending abroad for mercenary troops. By a Bull dated August 24 at Anagni, Innocent III revoked the charter and later on excommunicated the rebellious barons. The motives of Innocent’s action are not far to seek. To begin with, he was probably misled as to the facts, and trusted too much to the king’s account of what had happened. He was naturally inclined to protect the interests of a professed crusader and a vassal, and he took up the position that the barons could not be judges in their own cause but should have referred the matter to him, the king’s suzerain, for arbitration. But, more than this, he maintained quite correctly that the king had made the concessions under compulsion, and that the barons were in open rebellion against the Crown. It is indeed manifest that the charter could not have been a final settlement; it was accepted as such by neither extreme party, and, even before the gathering at Runnymede had separated, the archbishop and the moderates had grown suspicious of the executive committee of twenty-five. War broke out almost at once, the revolted barons brought over the French king’s son, and, during the sixteen troubled months that intervened between the signing of the charter and the end of the reign, John had on the whole the advantage.
Shortly after the accession of the young Henry III the charter was reissued by the regent, William Marshall. This Charter of 1216 differed in a good many respects from that accepted by John at Runnymede. To begin with, the clauses dealing with the royal forests were formed into a separate. charter, the Charter of the Forests; the other clauses were considerably modified, points were more accurately defined, matters of a temporary nature, including naturally the old executive clause, were left out, but the chief change was to restore to the Crown a number of powers which had been abandoned during the previous year. Amongst these the most important was the right of taxation, Chapters XII and XIV being omitted. On the other hand, there is this all-important difference that the new charter was a gentyne grant by the Crown. It may be called a piece of honest legislation; and to this charter the papal legate gave the fullest consent. A few further changes were introduced in 1217, and for a third time the Magna Carta was reissued in 1225. The form it then received was final, and the charters which the Crown was so repeatedly asked to confirm for many years to come, meant the Charter of Liberties of 1225 and the Forest Charter.
In time the Charters became almost symbolical; the precise meaning of many of the clauses was forgotten, and much more was read into some of them than their authors had ever intended to imply. They came to represent, like the “Laws of Good King Edward” in an earlier age, the ancient liberties of Englishmen, and, when in Stuart days men looked behind the Tudor absolutism to a time of greater independence, lawyers like Sir E. Coke continued the process of idealization which had been begun even in the thirteenth century. This symbolical use of the Great Charter has played a great part in English constitutional history, but it would have been impossible, had not the original document in its original sense been a thorough, an intelligent, and, in the main, a moderate expression of the determination of Englishmen to be ruled by law and tradition and not by arbitrary will. The most convenient text of the Great Charter is that printed in Bemont’s “Chartes des Libertes anglaises” (Paris, 1892), but it will also be found in Stubbs’s “Select Charters” and similar compilations. W. S. McKechnie (“Magna Carta”, Glasgow, 1905) has published a very thorough commentary, clause by clause, together with an historical introduction and a discussion of the criticisms brought against the Charter. His book also contains a bibliography.
F. F. URQUHART