III.: Magna Carta: its Contents and Characteristics.

The rights enumerated in the sixty–three chapters of the Charter, representing the price paid by John for renewed allegiance, are fully discussed in the main part of the present volume: a brief description of their more prominent characteristics, when viewed as a collective whole, is, therefore, all that is here required.

As to externals, the want of orderly, logical arrangement has often been noted. As John Reeves says: “The whole is strung together in a disorderly manner, with very little regard to the subject matter”; while a recent writer maintains that “no portion of this famous document can possibly be described as a good piece of drafting.” Thirteenth–century standards, however, were different from our own; and the lengthy document, with its specific remedies for many abuses, contains evidence of a carefully weighed scheme and of a deep–rooted conviction of the need of reform. The barons and royal officials who helped in framing it were ignorant of the abstract principles of political science. Their ideas, it has been truly said, “seem to have been concrete and practical, and in their remedies they went no further than the correction of the specific abuses from which they suffered.” The framers of the document observed (with few exceptions) great legal accuracy in defining the traditional rights of the Crown, proceeding with praiseworthy moderation and scrupulous fairness towards John.

Three closely connected characteristics of the document, as a whole, will be brought out in the succeeding analysis: Magna Carta is feudal, contractual, and (in parts, at least) reactionary in tone. Professor Adams of Yale, giving voice to opinions now widely admitted by historians, emphasizes the crucial place occupied by “the feudal contract” as the basis alike of Magna Carta and of the medieval English constitution; and maintains that, from the narrower point of view of 1215, the essence of John’s Charter “in spirit, in method, and in principle,” was reaction.

In the attempt to analyze the leading provisions, various principles of classification have been adopted: the chapters may be arranged according to the functions of the central government they were intended to limit; according to their own nature as progressive, reactionary, or declaratory; and, finally, according to the classes of the community which reaped the greatest benefit.

I. Provisions classified according to the prerogatives affected.

Dr. Gneist arranges the chapters in five groups according as they place restraints (1) on the military power of the Crown, (2) on its judicial power, (3) on its police power, (4) on its financial power, or (5) furnish a legal sanction for the enforcement of the whole. In spite of Dr. Gneist’s high authority, it is doubtful whether an analysis of Magna Carta upon these somewhat arbitrary lines throws much light on its main objects or results. Such a division is founded on distinctions not clearly formulated in the thirteenth century, when the various functions of government were still undifferentiated.

II. Provisions classified according as they are of a progressive, reactionary, or declaratory nature.

Blackstone, writing in 1759, expresses the generally accepted views: “It is agreed by all our historians that the Great Charter of King John was for the most part compiled from the ancient customs of the realm, or the laws of King Edward the Confessor, by which they usually mean the common law, which was established under our Saxon princes, before the rigours of feudal tenures and other hardships were imported from the continent.” Substantially the same doctrine has been enunciated only the other day, by our highest authority. “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.” This view seems, on the whole, a correct one: the insurgents in 1215 professed to be demanding nothing new. Yet the Great Charter contained much that was unknown to the days of the Confessor and had no place in the promises of Henry I.

Thus it is not sufficient to describe Magna Carta merely as a declaratory enactment: it is necessary to distinguish between the different sources of what it declared. A fourfold division may be suggested. (1) Magna Carta handed on some of the usages of the old English law unchanged by the Conqueror or his successors, now confirmed and purified from abuses. (2) In defining feudal incidents and services, it confirmed many rules of the feudal law brought into England by the Normans after 1066. (3) It also embodied many provisions of which William I. and even Henry I. knew no more than did the Anglo–Saxon kings—innovations introduced for his own purposes by Henry of Anjou, but, after half a century of experience, now accepted loyally even by the most bitter opponents of the Crown. In the words of Mr. Prothero, “We find . . . the judicial and administrative system established by Henry II. preserved almost intact in Magna Carta, though its abuse was carefully guarded against.” Finally, (4) in some few points, the Charter aimed at going farther than Henry II. had intended to go: to mention only two particulars, the petty assizes are to be taken four times a year, while sheriffs are prohibited from holding pleas of the Crown.

History, indeed, has proved that a purely declaratory enactment is impossible: the mere lapse of time, by producing an altered context, changes the purport of any statute re–enacted in a later age. It is no unusual device for innovators to render their reforms more palatable by presenting them disguised as returns to the past. Further, it is important to bear in mind the nature of the provisions confirmed. A re–statement of some of the reforms of Henry II. leads logically to progress rather than to mere stability; while the confirmation of Anglo–Saxon usages or of ancient feudal customs, fast disappearing under the new régime, may imply retrogression rather than standing still. Chapters 34 and 39 of Magna Carta, for example, really demand a return to the system in vogue prior to the innovations of Henry of Anjou, when they favour feudal jurisdictions. Thus, some of the provisions of the Great Charter which, at a casual glance, appear declaratory, are, in reality, innovations; while others tend towards reaction.

III. Provisions classified according to the estates of the community in whose favour they were conceived.

Here we are face to face with a fundamental question of immense importance: Does the Great Charter really, as the orthodox view so vehemently asserts, protect the rights of the whole mass of humble Englishmen equally with those of the proudest noble? Or is it rather a series of concessions to feudal selfishness wrung from the King by a handful of powerful aristocrats? On such questions, learned opinion is sharply divided, although an overwhelming majority of authorities range themselves on the popular side, from Coke down to writers of the present day. Lord Chatham, in one of his great orations, insisted that the barons who wrested the Charter from John established claims to the gratitude of posterity because they “did not confine it to themselves alone, but delivered it as a common blessing to the whole people”; and Sir Edward Creasy caps these words with more ecstatic words of his own, declaring that one effect of the Charter was “to give and to guarantee full protection for property and person to every human being that breathes English air.” Staid lawyers and historians like Blackstone and Hallam use similar expressions. “An equal distribution of civil rights to all classes of freemen forms the peculiar beauty of the charter”; so we are told by Hallam. Bishop Stubbs unequivocally enunciated the same doctrine. “Clause by clause the rights of the commons are provided for as well as the rights of the nobles. . . . This proves, if any proof were wanted, that the demands of the barons were no selfish exactions of privilege for themselves.” “The rights which the barons claimed for themselves,” says John Richard Green, “they claimed for the nation at large.” It would be easy to add to this “cloud of witnesses,” but enough has been said to prove that it has been a common boast of Englishmen, for many centuries, that the provisions of the Great Charter were intended to secure, and did secure, the liberties of every class and individual, not merely those of the feudal magnates.

It is a usual corollary to this theory, to attribute credit to Stephen Langton for broad–minded statesmanship: the so–called “Articles of the Barons” are really, it would seem, articles of the archbishop. In Miss Norgate’s words, the original articles “are obviously not the composition of the barons mustered under Robert Fitz–Walter,” who could never have risen to “the lofty conception embodied in the Charter—the conception of a contract between King and people which should secure equal rights to every class and every individual in the nation.”

It is not safe, however, to accept, without a careful consideration of the evidence, opinions cited even from such high authorities. “Equality” is essentially a modern ideal: for many centuries after the thirteenth, class legislation maintained its prominent place on the Statute Rolls, and the interests of the various classes were by no means always identical. A vigorous minority has always protested against the popular view of Magna Carta. “It has been lately the fashion,” Hallam confesses, “to depreciate the value of Magna Charta, as if it had sprung from the private ambition of a few selfish barons, and redressed only some feudal abuses.”

Two different parts of the Charter have a bearing on this question: chapter 1, which explains to whom the rights were granted; and chapter 61, which declares by whom they were to be enforced. The liberties were confirmed “to all freemen of my kingdom and their heirs for ever.” This opens the question—who were freemen in 1215? An enthusiasm that seeks to enhance the merits of Magna Carta by extending its provisions as widely as possible, has led commentators to stretch the meaning of “freeman” to embrace the entire population of England, including not only churchmen, merchants, and yeomen, but even villeins.

Now, homo in medieval law–Latin, was originally synonymous with baro—all feudal vassals being described as “men” or “barons.” Magna Carta is a feudal grant, and the presumption is in favour of the technical feudal meaning. The word, indeed, occasionally bore a looser, wider sense; but any room for ambiguity seems to be precluded by the use of the qualifying word “free.” No villein was fully a “liber homo.” In chapter 34, for example, the “liber homo” is assumed to be a landowner with a manorial court. Even a burgess might not be reckoned for all purposes as “free”; for the Dialogus de Scaccario discusses how far a miles or other liber homo might lose his status by engaging in commerce in order to make money. The word “freeman,” it would appear, as used in the Charter is synonymous with “freeholder”; and therefore only a limited class could, as grantees or the heirs of such, make good a legal claim to share in the liberties secured by it. To the question, who had authority to enforce its provisions, the Great Charter has likewise a definite answer, namely, a quasi–committee of twenty–five barons. It is clear that no support for democratic interpretations of Magna Carta can be founded on the choice of executors; since these formed a distinctly aristocratic body.

Magna Carta, indeed, contains positive evidences which point to the existence of class legislation. At the beginning and end of the Charter, clauses are inserted to secure to the Church its “freedom” and privileges. Many chapters, again, have no value except to landowners; a few affect tradesmen and townsmen exclusively; while chapters 20 to 22 adopt distinct sets of rules for the amercement of the ordinary freeman, the churchman, and the earl or baron respectively. A distinction is made (for example, in chapter 20) between the freeman and the villein, and the latter was carefully excluded from many of the benefits conferred on others by Magna Carta.

(1) The Feudal Aristocracy. A casual glance at the clauses of the Great Charter shows how prominently feudal rights and obligations bulked in the eyes of its promoters. Provisions of this type must be considered chiefly as concessions to the feudal aristocracy—although the relief, primarily intended for them, indirectly benefited other classes as well.

(2) Ecclesiastics. The position of the Church is easily understood when we neglect the privileges enjoyed by its great men quâ barons rather than quâ prelates. The special Church clauses found no place whatsoever in the Articles of the Barons, but bear every appearace of having been added as an after–thought, due probably to the influence of Stephen Langton. Further, they are mainly confirmatory of the separate Charter already twice granted within the few preceding months.

(3) Tenants and Mesne Lords. When compelling John to grant Magna Carta by parade of armed might, the barons were obliged to rely on the support of their own freeholders. It was necessary that these under–tenants should receive some recognition of their claims, and concessions in their favour are contained in two clauses (couched apparently in no generous spirit), chapters 15 and 60. The former limits the number of occasions on which aids might be extorted from sub–tenants to the same three as were recognized in the Crown’s case. Chapter 60 provides generally that all customs and liberties which John agrees to observe towards his vassals shall be observed by mesne lords, whether prelates or laymen, towards their sub–vassals. This provision has met with a chorus of applause from modern writers. Dr. Hannis Taylor declares that, “animated by a broad spirit of generous patriotism, the barons stipulated in the treaty that every limitation imposed for their protection upon the feudal rights of the king should also be imposed upon their rights as mesne lords in favour of the under–tenants who held of them.” A vague general clause, however, affords little protection in a rude age and might readily be infringed when occasion arose. The barons were compelled to do something, or to pretend to do something, for their under–tenants. Apparently they did as little as they, with safety or decency, could.

(4) Something was also done for the merchant and trading classes. The existing privileges of London were confirmed in the Articles of the Barons; and some slight additions were made. An attentive examination suggests, however, that these privileges were refined away in the final form of Magna Carta. The right to tallage London and other towns was reserved to the Crown, while the rights of trading granted to foreigners were inconsistent with the policy of monopoly dear to the hearts of the Londoners. A mere confirmation of existing customs, already bought and paid for at a great price, seems a poor return for support given to the movement of insurrection at a critical moment, when their adherence was sufficient to turn the scale. The marvel is that so little was done for them.

(5) The relation of the villein to the benefits of the Charter has been hotly discussed. Coke claims for him, in regard to chapter 39 at least, that he must be regarded as a liber homo, and therefore as a participant in the advantages of the clause. This contention, it has been already shown, is not well founded. Yet the villein, it may be argued, though excluded from participating in the rights of freemen, has certain rights secured to him in his own name. For example, in chapter 20, John promises that he will not so cruelly amerce villeins—other people’s villeins at least—as to leave them utterly destitute.

The villein was protected, however, not as the acknowledged subject of legal rights, but because he formed a valuable asset of his lord. This attitude is illustrated by a somewhat peculiar expression used in chapter 4, which prohibited injury to the estate of a ward by “waste of men or things.” For a guardian to raise a villein to the status of a freeman was to benefit the enfranchised peasant at the expense of his young master.

Other clauses of John’s Charter and of the various reissues show scrupulous care to avoid infringing the rights of property enjoyed by manorial lords over their villeins. The King could not amerce other people’s villeins harshly, although those on his own farms might be amerced at his discretion. Chapter 16, while carefully prohibiting any arbitrary increase of service from freehold property, leaves by inference all villein holdings unprotected. The “farms” or rents of ancient demesne might be raised by the Crown, and tallages might be arbitrarily taken (measures likely to press hardly on the villein class). The villein was deliberately left exposed to the worst forms of purveyance, from which chapters 28 and 30 rescued his betters. The horses and implements of the villanus were still at the mercy of the Crown’s purveyors. The reissue of 1217 confirms this view: while demesne waggons were protected, those of villeins were left exposed. Again, the chapter that takes the place of the famous chapter 39 of 1215 makes it clear that lands held in villeinage are not to be protected from arbitrary disseisin or dispossession. The villein was left by the common law merely a tenant–at–will—subject to arbitrary ejectment by his lord—whatever meagre measure of protection he might obtain under the “custom of the manor” as interpreted by the court of the lord who oppressed him.

When taken together, the significance of these somewhat trivial points is clear. The bulk of the English peasantry were protected by Magna Carta merely because they formed valuable assets of their lords. The Charter viewed them as “villeins regardant”—as chattels attached to a manor, not as members of an English commonwealth.

The conclusion derived from this survey is that the baronial leaders are scarcely entitled to the excessive laudation they have sometimes received. The rude beginnings of features prominent later on (such as the conceptions of patriotism, nationality, equality before the law, and tender regard for the rights of the humble) may possibly be found in germ in parts of the completed Charter; but the Articles of the Barons were what their name implies, a baronial manifesto, seeking chiefly to redress the private grievances of the promoters, and mainly selfish in motive.

Yet, when all deductions have been made, the Great Charter stands out as a prominent landmark in the sequence of events that have led, in an unbroken chain, to the consolidation of the English nation, and to the establishment of a free and constitutional form of polity upon a basis so enduring that, after many centuries of growth, it still retains—or, until a few years ago, did retain—the vigour and buoyancy of youth.