Chapter 60: provides generally, in vague words, that all the customs and

liberties which John agrees to observe towards his vassals shall be also observed by mesne lords, whether prelates or laymen, towards their sub-vassals. This provision has met with a chorus of applause from modern writers. Prof. Prothero declares[210] that “the sub-tenant was in all cases as scrupulously protected as the tenant-in-chief.” Dr. Hannis Taylor[211] is even more enthusiastic. “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.”[212] It must, however, be remembered that a vague general clause affords less protection than a definite specific privilege; and that in a rude age such a general declaration of principle 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.

-----

Footnote 210:

_S. de Montfort_, 17.

Footnote 211:

_English Constitution_, I. 383.

Footnote 212:

Bishop Stubbs, Preface to _W. Coventry_, II. lxxii., represents the
barons, in their fervour for abstract law, as actually supporting
their own vassals against themselves: “the barons of Runnymede guard
the people against themselves as well as against the common tyrant.”

-----

(4) Something was also done for the _merchant and trading classes_, but, when we subtract what has been read into the Charter by democratic enthusiasts of later ages, not so much as might reasonably be expected in a truly national document. The existing privileges of the great city of London were confirmed, without specification, in the Articles of the Barons; and some slight reforms in favour of its citizens (not too definitely worded) were then added. An attentive examination seems to suggest, however, that these privileges were carefully refined away when the Articles were reduced to their final form in Magna Carta. The right to tallage London and other towns was carefully reserved to the Crown, while the rights of free trading granted to foreigners were clearly inconsistent with the policy of monopoly and protection dear to the hearts of the Londoners. A mere confirmation to the citizens of existing customs, already bought and paid for at a great price, seems but a poor return for the support given by them to the movement of insurrection at a critical moment when John was bidding high on the opposite side, and when their adherence was sufficient to turn the scale. The marvel is that so little was done for them.[213]

-----

Footnote 213:

For details, see _infra_ under cc. 12, 13, 35, and 41. It is
instructive to compare these chapters with the corresponding
provisions of the Articles of the Barons (viz. articles 32, 12, and
31). The alterations (though slight) seem to show that some new
influence affecting only the later document was inimical to the towns.

-----

(5) The relation of the _villein_ to the benefits of the Charter has been hotly discussed. Coke claims for him, in regard to the important provisions of chapter 39 at least, that he must be regarded as a _liber homo_, and therefore as a full participant in all the advantages of the clause.[214] This contention is not well founded. Even admitting the relativity of the word _liber_ in the thirteenth century, and admitting also that the villein performed some of the duties, if he enjoyed none of the rights of the free-born, still the formal description _liber homo_, when used in a feudal charter, cannot be stretched to cover those useful manorial chattels that had no recognized place in the feudal scheme of society or in the political constitution of England, however necessary they might be in the scheme of the particular manor to the soil of which they were attached.

-----

Footnote 214:

See Coke, _Second Institute_, p. 45, “for they are free against all
men, saving against their lord.”

-----

Even if we exclude the villein from the general benefits of the grant, it may be, and has been, maintained that some few privileges were insured to him in his own name. One clause at least is specially framed for his protection. The villein, so it is provided in chapter 21, must not be so cruelly amerced as to leave him utterly destitute; his plough and its equipment must be saved to him. Such concessions, however, are quite consistent with a denial of all _political_ rights, and even of all _civil_ rights, as these are understood in a modern age. The Crown and the magnates, so it may be urged, were only consulting their own interests when they left the villein the means to carry on his farming operations, and so to pay off the balance of his debts in the future. The closeness of his bond to the lord of his manor made it impossible to crush the one without slightly injuring the other. The villein was protected, 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.[215]

-----

Footnote 215:

Cf. under c. 4 _infra_.

-----

Other clauses both of John’s Charter and of the various re-issues 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. Then the “farms” or rents of ancient demesne might be arbitrarily raised by the Crown,[216] 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 re-issue of 1217 confirms this view; while demesne waggons were protected, those of villeins were left exposed.[217] Again, the chapter which takes the place of the famous chapter 39 of 1215[218] 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.

-----

Footnote 216:

See under c. 25 _infra_.

Footnote 217:

See chapter 26 of 1217.

Footnote 218:

See chapter 35 of 1217.

Even if it were possible to neglect the significance of any one of these somewhat trivial points, when all of them are placed side by side their meaning is clear. If the bulk of the English peasantry were protected at all by Magna Carta that was 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.[219]

-----

Footnote 219:

Dr. Stubbs takes an entirely different view. While admitting that
there is “so little notice of the villeins in the charter,” he
explains the omission apparently on two distinct grounds, (1) that
they had fewer grievances to redress than members of other classes,
and (2) that they participated in all the grants from which they were
not specially excluded. “It was not that they had no spokesman, but
that they were free from the more pressing grievances, and benefited
from every general provision.” Preface to _W. Coventry_, II., lxxiii.

-----

The general conclusion to be derived from this survey is that, while much praise may be due to the baronial leaders for their comparatively liberal interest in the rights of others, they are scarcely entitled to the excessive laudation they have sometimes received. The rude beginnings of many features which have since come into prominence in English institutions (such as the conceptions of patriotism and nationality and the principles of equality before the law and the tender regard for the rights of the humble) may possibly be found in the germ in some 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 (and it has seemed necessary to do this with emphasis in order to redress the false balance created by the exaggerations of enthusiasts), the Great Charter still stands out as a prominent landmark in the sequence of events which 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 more than eight centuries of growth, it still retains the vigour and the buoyancy of youth.

IV. Magna Carta: an Estimate of its Value.

No evidence survives to show that the men of John’s reign placed any excessive or exaggerated importance on the Great Charter; but, without a break since then, the estimate of its worth steadily increased until it came to be regarded almost as a fetish among English lawyers and historians. No estimate of its value can be too high, and no words too emphatic or glowing to satisfy its votaries. In many a time of national crisis, Magna Carta has been confidently appealed to as a fundamental law too sacred to be altered—as a talisman containing some magic spell, capable of averting national calamity.

Are these estimates of its value justified by facts, or are they gross exaggerations? Did it really create an epoch in English history? If so, wherein did its importance exactly lie?

The numerous factors which contributed towards the worth of Magna Carta may be distinguished as of two kinds, intrinsic and extrinsic. (1) Its intrinsic value depends on the nature of its own provisions. The reforms demanded by the barons and granted by this Charter were just and moderate. The avoidance of all extremes tended towards a permanent settlement, since moderation both gains and keeps adherents. Its aims were practical as well as moderate; the language in which they were framed, clear and straightforward. A high authority has described the Charter as “an intensely practical document.”[220] This _practicality_ is an essentially English characteristic, and strikes the key-note of almost every great movement for reform which has held a permanent place in English history. Closely connected with this feature is another—the essentially _legal_ nature of the whole. As Magna Carta was rarely absent from the minds of subsequent opponents of despotism, a practical and legal direction was thus given to the efforts of Englishmen in many ages.[221] Therein lies another English characteristic. While democratic enthusiasts in France and America have often sought to found their rights and liberties on a lofty but unstable basis of philosophical theory embodied in Declarations of Rights; Englishmen have occupied lower but surer ground, aiming at practical remedies for actual wrongs, rather than enunciating theoretical platitudes with no realities to correspond.

-----

Footnote 220:

Prof. F. W. Maitland, _Social England_, I., 409.

Footnote 221:

Cf. Gneist, _Const. Hist._, Chapter XVIII.: “By Magna Carta English
history irrevocably took the direction of securing constitutional
liberty by administrative law.”

-----

Another intrinsic merit of the Charter was that it made definite what had been vague before. Definition is a valuable protection for the weak against the strong; whereas vagueness increases the powers of the tyrant who can interpret while he enforces the law. Misty rights were now reduced to a tangible form, and could no longer be broken with so great impunity. Magna Carta contained no crude innovations, and confirmed many principles whose value was enhanced by their antiquity. King John, in recognising parts of the old Anglo-Saxon customary law, put himself in touch with national traditions and the past history of the nation.

Further, the nature of the provisions bears witness to the broad basis on which the settlement was intended to be built. The Charter, notwithstanding the prominence given to redress of feudal grievances, redressed other grievances as well. In this, the influence of the Church and notably of its Primate, can be traced. Some little attention was given to the rights of the under-tenants also, and even to those of the merchants, while the villein and the alien were not left entirely unprotected. Thus the settlement contained in the Charter had a broad basis in the affection of all classes.

(2) Part of the value of Magna Carta may be traced to extrinsic causes; to the circumstances which gave it birth—to its vivid historical setting. The importance of each one of its provisions is emphasized by the object-lessons which accompanied its inauguration. The whole of Christendom was amazed by the spectacle of the King of a great nation obliged to surrender at discretion to his own subjects, and that, too, after he had scornfully rejected all suggestions of a compromise. The fact that John was compelled to accept the Charter meant a loss of royal prestige, and also great encouragement to future rebels. What once had happened, might happen again; and the humiliation of the King was stamped as a powerful image on the minds of future generations.

Such considerations almost justify enthusiasts, who hold that the granting of Magna Carta was the turning-point in English history. Henceforward it was more difficult for the king to invade the rights of others. Where previously the vagueness of the law lent itself to evasion, its clear re-statement and ratification in 1215 pinned down the king to a definite issue. He could no longer plead that he sinned in ignorance; he must either keep the law, or openly defy it—no middle course was possible.

When all this has been said, it may still be doubted whether the belief of enthusiasts in the excessive importance of Magna Carta has been fully justified. Many other triumphs, almost equally important, have been won in the cause of liberty, and under circumstances almost equally notable; and many statutes have been passed embodying these. Why then should Magna Carta be invariably extolled as the palladium of English liberties? Is not, when all is said, the extreme merit attributed to it mainly of a sentimental or imaginative nature? Such questions must be answered partly in the affirmative. Much of its value _does_ depend on sentiment. Yet all government is, in a sense, founded upon sentiment—sometimes affection, sometimes fear. Psychological considerations are all-powerful in the practical affairs of life. Intangible and even unreal phenomena have played an important part in the history of every nation. The tie that binds the British colonies at the present day to the Mother Country is largely one of sentiment; yet the troopers from Canada and New Zealand who responded to the call of Britain in her hour of need produced practical results of an obvious nature. The element of sentiment in politics can never be ignored.

It is no disparagement to Magna Carta, then, to confess that part of its power has been read into it by later generations, and lies in the halo, almost of romance, which has gradually gathered round it in the course of centuries. It became a battle cry for future ages, a banner, a rallying point, a stimulus to the imagination. For a king, thereafter, openly to infringe the promises contained in the Great Charter, was to challenge the bitterness of public opinion—to put himself palpably in the wrong. For an aggrieved man, however humble, to base his rights upon its terms was to enlist the warm sympathy of all. Time and again, from the Barons’ War against Henry III. to the days of John Hampden and Oliver Cromwell, the possibility of appealing to the words of Magna Carta has afforded a practical ground for opposition; an easily intelligible principle to fight for; a fortified position to hold against the enemies of the national freedom. The exact way in which this particular document—dry as its details at first sight may seem—has, when considered as a whole, fired the popular imagination, is difficult to determine. Such a task lies rather within the sphere of the student of psychology than of the student of history, as usually conceived. However difficult it may be to explain this phenomenon, there is no doubt of its existence. The importance of the Great Charter, originally flowing both from the intrinsic and from the extrinsic features already described, has greatly increased, as traditions, associations, and aspirations have clustered more thickly round it. These have augmented in each succeeding age the reverence in which it has been held, and have made ever more secure its hold upon the popular imagination.

Thus Magna Carta, in addition to its legal value, has a political value of an equally emphatic kind. Apart from and beyond the salutary effect of the many useful laws it contained, its moral influence has contributed to a marked advance of the national spirit, and therefore of the national liberties. A few of the aspects of this advance deserve to be emphasized. The King, by granting the Charter in solemn form, admitted that he was not an absolute ruler—admitted that he had a master over him in the laws which he had often violated, but which he now swore to obey. Magna Carta has thus been truly said to enunciate and inaugurate “the reign of law” or “the rule of law” in the phrase made famous by Professor Dicey.[222]

-----

Footnote 222:

A. V. Dicey, _Law of the Constitution_, Part II.

-----

It marks also the commencement of a new grouping of political forces in England; indeed without such a rearrangement the winning of the Charter would have been impossible. Throughout the reign of Richard I. the old tacit understanding between the king and the lower classes had been endangered by the heavy drain of taxation; but the actual break-up of the old alliance only came in the crisis of John’s reign. Henceforward can be traced a gradual change in the balance of parties in the commonwealth. No longer are Crown and people united, in the name of law and order, against the baronage, standing for feudal disintegration. The mass of humble freemen and the Church are for the moment in league with the barons, in the name of law and order, against the Crown, recently become the chief law-breaker.

The possibility of the existence of such an alliance, even on a temporary basis, involved the adoption by its chief members of a new baronial policy. Hitherto each great baron had aimed at his own independence or aggrandisement, striving on the one hand to gain new franchises for himself, or to widen the scope of those he already had, and on the other to weaken the king and to keep him outside these franchises. This policy, which succeeded both in France and in Scotland, had before John’s reign already failed signally in England, and the English barons now, on the whole, came to admit the hopelessness of renewing the struggle for feudal independence. They substituted for this ideal of an earlier age a more progressive policy. The king, whose interference they could no longer hope completely to shake off, must at least be taught to interfere justly and according to rule; he must walk only by law and custom, not by the caprices of his evil heart. The barons sought henceforward, to control the royal power they could not exclude; they desired some determining share in the national councils, if they could no longer hope to create little nations of their own within the four corners of their fiefs. Magna Carta was the fruit of this new policy.

It has been often repeated, and with truth, that the Great Charter marks also a stage in the growth of national unity or nationality. Here, however, it is necessary to guard against exaggeration. It is merely one movement in a process, rather than a final achievement. We must somewhat discount, while still agreeing in the main with, statements which declare the Charter to be “the first documentary proof of the existence of a united English nation”; or with the often-quoted words of Dr. Stubbs, that “The Great Charter is the first great public act of the nation, after it has realised its own identity.”[223]

-----

Footnote 223:

_Const. Hist._, I. 571. Cf. _Ibid._, I. 583, “The act of the united
nation, the church, the barons, and the commons, for the first time
thoroughly at one.” Who were “the commons” in 1215? The question is a
difficult one to answer. Cf. also Mr. Prothero, _Simon de Montfort_,
18, “The spirit of nationality of which the chief portion of Magna
Carta was at once the product and the seal.”

-----

A united English nation, whether conscious or unconscious of its identity, cannot be said to have existed in 1215, except under several qualifications. The conception of “nationality,” in the modern sense, is of comparatively recent origin, and requires that the lower as well as the higher classes should be comprehended within its bounds. Further, the coalition which wrested the Charter from the royal tyrant was essentially of a temporary nature, and quickly fell to pieces again. Even while the alliance continued, the interests of the various classes, as has been already shown, were far from identical. Political rights were treated as the monopoly of the few (as is evidenced by the retrograde provisions of chapter 14 for the composition of the _Commune concilium_); and civil rights were far from universally distributed. The leaders of the “national” movement certainly gave no _political_ rights to the despised villeins, who comprised more than three quarters of the entire population of England; while their _civil_ rights were almost completely ignored in the provisions of the Charter.

Magna Carta undoubtedly marked one step, an important step, in the process by which England became a nation; but that step was neither the first nor yet the final one.

V. Magna Carta. Its defects.

The great weakness of the Charter lay in this, that no adequate sanction was attached to it, in order to ensure the enforcement of its provisions. The only expedient suggested for compelling the King to keep his promises was of a nature at once clumsy and revolutionary, and entirely worthless considered as a working scheme of government. Indeed, it was devised not so much to prevent the King from breaking faith as to punish him when he had done so. In other words, no proper constitutional machinery was invented to turn the legal theories of Magna Carta into practical realities. In its absence, we find what has sometimes been described as “a right of legalized rebellion” conferred on an executive committee of twenty-five of the King’s enemies.

This is the chief defect, but not the only one. Many minor faults and omissions may be traced to a similar root. All the great constitutional principles are in reality conspicuously absent. The importance of a council or embryo parliament, constituted on truly national lines (of which some glimmerings can be traced in 1213); the right of such a body to influence the King’s policy in normal times as well as in times of crisis; the doctrine of ministerial responsibility (already dimly foreshadowed in the reign of Richard); the need of distinguishing the various functions of government, legislative, judicial, and administrative—all these cardinal principles are completely ignored by the Charter. Not one of its many clauses affords evidence that the statesmen of the day had any conception, even of a rudimentary nature, of the principles of political science.

Only five of the sixty-three chapters can be said to bear directly on the subject of constitutional (as opposed to purely legal) machinery, and most of these do so only incidentally, namely, chapters 14, 21, 39, 61, and 62.

The _Commune Concilium_ is indeed mentioned; and its composition and mode of summons are clearly defined in chapter 14. But it must be remembered that this chapter appears as a mere afterthought,—as an appendix to chapter 12; its incidental nature is proved by the fact that it has no counterpart in the Articles of the Barons. The rebel magnates were vitally interested in the narrow question of scutage, not in the wide possibilities involved in the existence of a national council. The _Commune Concilium_ was dragged into the Charter, not on its own merits, but merely as a convenient method of preventing the arbitrary increase of feudal exactions. That this was so, is further proved by the fact that both parties were content to omit all mention of the Council from the re-issue of 1217, when an alternative way of checking the arbitrary increase of scutage had been devised.

If the framers of John’s Magna Carta had possessed any grasp of constitutional principles, they would gladly have seized the opportunity afforded them by the mention, however incidentally, of the Common Council, in chapters 12 and 14, in order to define most carefully the powers which they claimed for it. On the contrary, no list of its functions is drawn up; nor do the words of the Charter contain anything to suggest that it exercised any powers other than that of consenting to scutages and aids. Not a word is said of any right inherent in the Council to a share in legislation, to control or even to advise the Executive, or to concur in choosing the great ministers of the Crown. Neither deliberative, administrative, nor legislative powers are secured to it, while its control over taxation is strictly limited to the right to veto scutages and aids—that is say, it only extends over that very narrow class of exactions which affected the military tenants of the Crown. It is true that chapters 21 and 39 may possibly be read confirming the _judicial_ power of the Council in a certain limited group of cases. Earls and barons are not to be amerced except by their peers (_per pares suos_), and the natural place for these “equals” of a Crown vassal to assemble for this purpose would be the _Commune Concilium_. This, however, is merely matter of inference; chapter 21 makes no mention of the Council; and it is equally possible that its requirements would be met by the presence among the officials of the Exchequer of a few Crown tenants.[224] Similar reasoning applies to the provisions of chapter 39 (protecting the persons and property of freemen, by insisting on the necessity of a “trial by peers”) so far as they affect earls and barons.

-----

Footnote 224:

This is the view of Mr. L. O. Pike, _House of Lords_, 204.

-----

It is clear that the leaders of the opposition in 1215 did not consider the constitutional powers of a national Parliament the best safeguard of the rights and liberties theoretically guaranteed by the Charter. Only one practical or constitutional expedient seems to have occurred to them, namely, that embodied in chapter 61. Twenty-five barons were to be appointed by their fellow-barons to act as Executors of the Charter; but their functions were apparently only to be called into play in the event of King John or his officers breaking any of the provisions of the Charter. If this occurred, intimation might be made to a smaller sub-committee of four, chosen from the twenty-five, and these four would straightway ask the King to redress the grievance complained of. If this was not done within forty days, John granted to the Committee of twenty-five, assisted by “the whole community of the realm,” the right practically to make war upon him. He conferred on them in the most explicit terms full power “to distrain and distress us in all possible ways, by seizing our castles, lands, possessions, and in any other way they can, until the grievances are redressed according to their pleasure.”

Such a provision can hardly be described as constitutional, since it is rather the negation of all constitutional principles—nothing more nor less than legalized rebellion. Provision is made not for the orderly conduct of government, but rather to provide an organization for making war upon the king in certain abnormal circumstances which are defined. Such a scheme was clearly impracticable, and the fact that it recommended itself as a possible expedient to the barons speaks eloquently of their complete ignorance of the most elementary principles of the science of government. Civil war levied on a warrant granted beforehand by the king is treated as a constitutional expedient for the redress of particular grievances as they arise.[225]

-----

Footnote 225:

Details of this scheme, and a fuller discussion of its defects will be
found _infra_ under chapter 61.

-----

The same inability to devise practical remedies for specific evils may be traced in several minor clauses of the Charter.[226] When John promised in chapter 16 that no one should be compelled to do greater service than had been formerly due from any holding, no attempt was made, in case of dispute, to provide constitutional machinery to define what such service actually was; while chapter 45, providing that only men who knew the law, and meant to keep it, should be made justiciars, sheriffs or bailiffs, laid down no criterion of fitness, and contained no suggestion of any way in which so laudable an ambition might be realized.

-----

Footnote 226:

Magna Carta has been described, in words already quoted with approval,
as “an intensely practical document,” Professor Maitland, _Social
England_, I. 409; but this requires some qualification. If it was
practical in preferring the condemnation of definite practical
grievances to the enunciation of philosophical principles, it was
unpractical in omitting to provide machinery for giving effect to its
provisions.

-----

Thoughtful and statesmanlike as were the provisions of Magna Carta, and wide as was the ground they covered, many important omissions can be pointed out. Some crucial questions seem not to have been foreseen, and others, for example the liability to foreign service, were deliberately shelved[227]—thus leaving room for future misunderstandings. The praise, justly earned, by its framers for the care and precision with which they defined a long list of the more crying abuses, must be qualified in view of the failure to provide procedure to prevent their recurrence. Men had not yet learned the force of the maxim, so closely identified with all later reform movements in England, that a right is valueless without an appropriate remedy to enforce it.[228]

-----

Footnote 227:

Except in so far as affected by cc. 12 and 16.

Footnote 228:

Mr. Prothero estimates much more highly the constitutional value of
Magna Carta: "The constitutional struggles of the following
half-century would to a great extent have been anticipated had it
retained its original form."—_Simon de Montfort_, 14.

-----

VI. Magna Carta: Value of Traditional Interpretations.

The Great Charter has formed a favourite theme for orators and politicians in all periods of English history, partly because of its intrinsic merit, partly because of the dramatic background of its historical setting, but chiefly because it has been, from the time of its inception down to the present day, a rallying cry and a protecting bulwark in every crisis which threatened to endanger the national liberties.

The uses to which it has been put, and the interpretations which have been read into it, are so numerous and so varied, that they would require a separate treatise to do them justice. Not only was Magna Carta, as will be shown in some detail in a later section, frequently reissued and confirmed, but its provisions have been asserted and re-asserted time after time, in Parliament, in the courts of justice, and in institutional works on jurisprudence. Its influence has thus been threefold; and any attempt to explain its bearing on the subsequent history of English liberties would require to distinguish between these three separate and equally important aspects. (1) It has supplied a powerful instrument in the hands of politicians, especially of the leaders of the House of Commons in the seventeenth century, when waging the battle of constitutional freedom against the Stewart dynasty. (2) Its legal aspect has been as important as its political one, since it has been cited in innumerable litigations before the various courts of law. In the course of legal debate and of judicial opinions, it has been the subject of many and conflicting interpretations, some of them accurate and some erroneous. (3) Finally, it has been discussed in many commentaries either exclusively devoted to its elucidation or else treating of it incidentally in the course of general expositions of the law of England.

An exhaustive search throughout the seven centuries which separate us from 1215 for instances in which Magna Carta has appeared in the arena of politics, on the judicial bench, or in legal treatises would prove a gigantic task, but could hardly fail to illustrate the inestimable services it has rendered to English liberties.

In the light of the important part which Magna Carta has thus played throughout many centuries of English history, it need not excite wonder that the estimation in which it was held, high as that was from a very early period, has gradually increased, until it has overstepped all due bounds, and has become utterly exaggerated and distorted. While some sympathy may be felt for such extravagant admiration, not unnatural in the circumstances, it is clearly the duty of the commentator to correct false impressions. It is well to point out that no document of human origin can be really worthy of the excessive eulogy of which the Great Charter has been made the subject; unfortunately, it has more frequently been described in terms of inflated rhetoric than of sober methodical analysis.[229]

-----

Footnote 229:

Extravagant estimates of its value will readily occur to anyone
acquainted with the literature of the subject. For example, Sir James
Mackintosh (_History of England_, I. 218, edn. of 1853) declares that
we are “bound to speak with reverential gratitude of the authors of
the Great Charter. To have produced it, to have preserved it, to have
matured it, constitute the immortal claim of England upon the esteem
of mankind. Her Bacons and Shakespeares, her Miltons and Newtons,
etc., etc.” Such uncritical eulogy contributes nothing to the
understanding of Magna Carta.

Nor has this tendency to unthinking adulation been entirely confined to popular writers; judges and institutional authors, even Sir Edward Coke himself, have too often lost the faculty of critical and exact scholarship when confronted with the virtues of the Great Charter. There is scarcely one great principle of the English constitution of the present day, or indeed of any constitution in any day, calculated to secure national liberties, or otherwise to win the esteem of mankind, which has not been read by commentators into the provisions of Magna Carta. In particular, the political leaders of the seventeenth and eighteenth centuries discovered among its chapters every important reform which they desired to introduce into England, thereby disguising the revolutionary nature of many of their projects by dressing them in the garb of the past.

Many instances of the constitutional principles and institutions, with the origin of which successive commentators have erroneously credited the Great Charter, will be expounded under the appropriate chapters of the sequel. It will be sufficient in the meantime to enumerate trial by jury; the right of every prisoner to obtain a writ of Habeas Corpus; the abolition of all arbitrary imprisonment at the king’s command; the complete prohibition of monopolies; the enunciation of a close and indissoluble tie between taxation and representation; equality of all and sundry before the law; a matured conception of nationality, embracing high and low, freeman and villein alike: all these, and more, have been discovered in various clauses of the Great Charter.[230]

-----

Footnote 230:

Edmund Burke (_Works_, II. 53, edn. of 1837, Boston) credits Magna
Carta with creating the House of Commons! “Magna Charta, if it did not
give us originally the House of Commons, gave us at least a House of
Commons of weight and consequence.” As will be shown in the sequel,
chapter 14 of the Great Charter (the only one bearing on the subject)
is in reality of a reactionary nature, confining the right of
attendance at the _commune concilium_ to the freeholders of the Crown
and departing from the precedent of two years earlier, which
introduced representatives of each county.

If these tendencies to excessive and sometimes ignorant praise have been unfortunate from one point of view, they have been most fortunate from another. The legal and political aspects must be sharply contrasted. On the one hand, the vague and inaccurate words used in speaking of the Charter even by great lawyers, such as Coke (not necessarily equally great as historians, living as they did in an age when the science of history was unknown), have not only obscured the bearing of many chapters, but have done a distinct injury to the study of the development of English law. On the other hand, as the mistakes made in commenting on the Charter have been almost entirely due to a laudable desire to extend as widely as possible its provisions in favour of individual and national liberties, and to magnify generally its importance; the service these very errors have done to the cause of constitutional progress is measureless. If political bias has coloured the interpretation placed on many of the most famous clauses, the ensuing benefit has accrued not to any one narrow party or faction, not to any separate class or interest, but rather to the entire body politic and to the cause of national progress in its widest and best developments.

Thus the historian of Magna Carta, while bound to correct estimates now seen to be erroneous in the light of modern research, cannot afford to despise or under-estimate the value of traditional interpretations. The meanings which have been read into it by the learned men of later ages, and which have been acquiesced in by public opinion of the day, have had an equally potent effect whether they were historically well founded or ill founded. The stigma of being banned by the Great Charter was usually too great a burden for any institution or line of policy to bear. If the belief prevailed that an abuse complained of was really prohibited by Magna Carta, the most arbitrary king had difficulty in finding judges who would declare it legal, or trustworthy ministers who would persevere in enforcing it. The prevalence of such a belief was the main point; whether it was well or ill founded was, for political purposes, quite immaterial. The greatness of Magna Carta lies not so much in what it was to its framers in 1215, as in what it afterwards became to the political leaders, to the judges and lawyers, and to the entire mass of the men of England in later ages.

VII. Magna Carta. Its traditional relation to Trial by Jury.

One persistent error, universally adopted for many centuries, and even now hard to dispel, is that the Great Charter granted or guaranteed trial by jury.[231] This belief, however, which has endured so long and played so prominent a part in political theory, is now held by all competent authorities to be entirely unfounded. Not one of the three forms of a modern jury trial had taken definite shape in 1215, although the root principle from which all three subsequently grew had been in constant use since the Norman Conquest. Henry II., indeed, had done much towards developing existing tendencies in the direction of all three of its forms, namely, of the grand jury, the petty criminal jury, and the jury of civil pleas.

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Footnote 231:

The source of this error was the identification of the _judicium
parium_ of chapter 39 with jury trial. This mistake is fully refuted
_infra_ under that chapter.

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Magna Carta, embodying as it does many of the innovations of Henry of Anjou, necessarily contains indications of the existence of these tendencies. Yet, as these occur incidentally in various provisions of unconnected chapters, and as they cannot readily be recognized, on account of the technical language in which they are usually couched and the apparently trivial points of legal procedure to which they relate, it seems well to preface the separate consideration of each of them under its appropriate chapter, by a short account of their mutual relations. This will conduce to a clear understanding alike of trial by jury and of the Great Charter itself.

Jury trial in each of the three forms in which it is known to modern English law is able to trace an unbroken pedigree (though by three distinct lines of descent) from the same ancestor, namely, from that principle known as _recognitio_ or _inquisitio_, which was introduced into England by the Normans, and was simply the practice whereby the Crown obtained information on local affairs from the sworn testimony of local men. While thus postulating a foreign origin for this “palladium of English liberties,” we are afforded consolation by the remembrance of a fact which some modern authorities are too much inclined to neglect, namely, that the soil was prepared by Anglo-Saxon labour for its planting.[232]

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Footnote 232:

The theory now generally accepted that the origin of trial by jury
must be sought in procedure introduced by the Norman Dukes and not in
any form of popular Anglo-Saxon institutions is ably maintained by
Pollock and Maitland, I. 119, and by the late Professor J. B. Thayer,
_Evidence_, p. 7. Undoubtedly their conclusions are in the main
correct; but in their natural desire to remove misconceptions, they
are possibly guilty of some slight exaggeration. Trial by jury may
have had more than one root, and a full appreciation of the value of
the Norman contribution need not lead to the total neglect of the
Anglo-Saxon one. Accepted conclusions in this respect might profitably
be supplemented by the opinions of Dr. Hannis Taylor, _English
Constitution_, I. 308 and I. 323.

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The old English institution of the frithborh—the practice of binding together little groups of neighbours for preservation of the peace—and the custom of sending representatives of the villages to the Hundred Courts, had alike accustomed the natives to corporate action and formed in some sort precedents for what their Norman masters compelled them to do, namely, to give their evidence on local matters jointly and on oath. Further, one form of the jury—the jury of accusation—is clearly foreshadowed (in spite of the complete breach of continuity in the intervening period) by the directions given to the twelve senior thegns of each Wapentake by a well-known law of Ethelred. Yet the credit of establishing the jury system as a fundamental institution in England is undoubtedly due to the Norman and Angevin kings, although they acted in their own interests and not in those of their oppressed subjects, and although they had no clear vision of the ultimate consequences of what they did. The uses to which the _Inquisitio_ was put by William and his sons in framing _Domesday Book_, collecting information about existing laws, and dispensing justice, have already been discussed.[233]

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Footnote 233:

See _supra_, pp. 105-6.

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It was reserved for Henry II. to start the institution on a further career of development; he it was who thus laid the foundations of the modern jury system. Strangely enough, he did this not merely in one of its forms, but in all three of them.

(1) In re-organizing machinery for the suppression and punishment of crime by the Assizes of Clarendon and Northampton, he established the general principle that criminal trials should (in the normal case) begin with formal indictment of the accused by a representative body of neighbours sworn to speak the truth.[234] This was merely a systematic enforcement of one of the many forms of _inquisitio_ already in use; from that date onwards the practice so established has been followed in England. Criminal prosecution cannot be begun on mere suspicion or irresponsible complaints. The jury of accusation (or presentment) may be said to have been instituted in 1166, and has continued in use ever since, passing by an unbroken course of development into the grand jury of the present day.[235]

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Footnote 234:

See Pollock and Maitland, I. 131. It was part of Henry’s policy to
substitute indictment by a representative jury for the older appeal by
the wronged individual or his surviving relatives. The older
procedure, however, was not completely abolished though looked upon
with disfavour. Its continuance and also its unpopularity may both be
traced in chapter 54 of Magna Carta. See _infra_.

Footnote 235: