Page:EB1911 - Volume 17.djvu/332

 of judgment by one’s peers is asserted, and is obviously the privilege of every class of freemen, not of the greater lords alone.

Chapter XL. simply says, “To no one will we sell, to no one will we refuse or delay, right or justice.”

Chapters XLI. and XLII. give permission to merchants, both English and foreign, to enter and leave the kingdom, except in time of war. They are not to pay “evil tolls.” The privilege is extended to all travellers, except the prisoner and the outlaw, and natives of a country with which England is at war.

Chapter XLIII. is intended to compel the king to refrain from exacting greater dues from an escheated barony than were previously due from such barony.

Chapter XLIV. deals with the hated and oppressive forest laws. In future attendance at the forest courts is only obligatory on those who have business thereat.

Chapter XLV. says that the royal officials must know something of the law and must be desirous of keeping it.

Chapter XLVI. gives to the founders of religious houses the right of acting as guardians of such houses when they are without heads.

Chapters XLVII. and XLVIII. deal again with the great grievance of the royal forests. John undertakes to disforest all forests which have been made in his time, and also to give up such river banks as he has seized for his own use when engaged in sport. Twelve knights in each county are to make a thorough inquiry into all evil customs connected with the forests, and these are to be utterly abolished.

Chapter XLIX. provides for the restoration of hostages. John had been in the habit of taking the children of powerful subjects as pledges for the good behaviour of their parents.

Chapter L. says that certain royal minions, who are mentioned by name, are to be removed from their offices.

Chapter LI. says that as soon as peace is made all foreign mercenaries are to be banished.

Chapters LII. and LIII. are those in which the king promises to make amends for the injuries he has done to his barons in the past. He will restore lands and castles to those who have been deprived of them without the judgment of their peers; he will do the same concerning property unlawfully seized by Henry II. or Richard I. and now in his hands. In the latter case, however, he was allowed a respite until he returned from the projected crusade. He promises also to do right concerning forests, abbeys and the wardship of lands which belong lawfully to others.

Chapter LIV. prevents any one from being arrested on the appeal of a woman, except on a charge of causing the death of her husband. As a woman could not prove her case in the judicial combat, it was felt that the earlier practice gave her an unfair advantage.

Chapter LV. provides for the remission of unjust fines. The decision on these matters is to rest with the archbishop of Canterbury and the twenty-five barons appointed to see that the terms of the charter are carried out.

Chapters LVI. and LVII. deal with the grievances of Welshmen. Restoration of property is promised to them practically in the same way as to Englishmen. Welsh law is to be used in Wales, and in the marches the law of the marches is to be employed.

Chapter LVIII. promises that his hostages and his charters shall be restored to Llewellyn, prince of Wales.

Chapter LIX. promises a restoration of hostages to Alexander I. king of Scotland. Right is also to be done to him concerning the lands which he holds in England.

Chapter LX. is a general statement that the aforesaid customs and liberties are to be observed by all classes.

Chapter LXI. provides for the execution of the royal promises. A committee is to be formed of twenty-five barons. Then if the king or any of his servants do wrong and complaint is made to four of the twenty-five, they are to ask for redress. In the event of this not being granted within forty days the matter is to be referred to the twenty-five, who are empowered to seize the lands and property of the king, or to obtain justice in any other way possible. They must, however, spare the persons of the king, the queen and their children. Vacancies in the committee are to be filled by the barons themselves. The twenty-five barons were duly appointed, their names being given by Matthew Paris. This chronicler also reports that another committee of thirty-eight members was appointed to assist and control the twenty-five. S. R. Gardiner calls the scheme “a permanent organization for making war against the king.”

Chapter LXII. is an expression of general forgiveness.

Chapter LXIII. repeats the promise of freedom to the English church and of their rights and liberties to all.

Magna Carta is an elaboration of the accession charter of Henry I., and is based upon the Articles of the Barons. It is, however, very much longer than the former charter and somewhat longer than the Articles. Moreover, it differs in several particulars from the Articles, these differences being doubtless the outcome of deliberation and of compromise. For instance, the provisions in Magna Carta concerning the freedom of the church find no place in the Articles, while a comparison between the two documents suggests that in other ways also influences favourable to the church and the clergy were at work while the famous charter was being framed. When one reflects how active and prominent Langton and other prelates were at Runnimede the change is not surprising. Another difference between the two documents concerns the towns and the trading classes. Certain privileges granted to them in the Articles are not found in Magna Carta, although, it must be noted, this document bestows exceptionally favoured treatment on the citizens of London. The conclusion is that the friends of the towns and the traders were less in evidence at Runnimede than they were at the earlier meetings of the barons, but that the neighbouring Londoners were strong enough to secure a good price for their support.

Magna Carta throws much light on the condition of England in the early 13th century. By denouncing the evil deeds of John and the innovations practised by him, it shows what these were and how they were hated; how money had been raised, how forest areas had been extended, how minors and widows had been cheated and oppressed. By declaring, as it does, what were the laws and customs of a past age wherein justice prevailed, it shows what was the ideal of good government formed by John’s prelates and barons. Magna Carta can hardly be said to have introduced any new ideas. As Pollock and Maitland (History of English Law) say “on the whole the charter contains little that is absolutely new. It is restorative.” But although mature study has established the truth of this proposition it was not always so. Statesmen and commentators alike professed to find in Magna Carta a number of political ideas which belonged to a later age, and which had no place in the minds of its framers. It was regarded as having conferred upon the nation nothing less than the English constitution in its perfect and completed form. Sir Edward Coke finds in Magna Carta a full and proper legal answer to every exaction of the Stuart kings, and a remedy for every evil suffered at the time. Sir William Blackstone is almost equally admiring. Edmund Burke says “Magna Carta, if it did not give us originally the House of Commons, gave us at least a House of Commons of weight and consequence.” Lord Chatham used words equally superlative. “Magna Carta, the Petition of Rights and the Bill of Rights form that code, which I call the Bible of the English Constitution.” Modern historians, although less rhetorical, speak in the highest terms of the importance of Magna Carta, the view of most of them being summed up in the words of Dr Stubbs: “The whole of the constitutional history of England is a commentary on this charter.”

Many regard Magna Carta as giving equal rights to all Englishmen. J. R. Green says “The rights which the barons claimed for themselves they claimed for the nation at large.” As a matter of fact this statement is only true with large limitations. The villains, who formed the majority of the population, got very little from it; in fact the only clauses which protect them do so because they are property—the property of their lords—and therefore valuable. They get neither political nor civil rights under Magna Carta. The traders, too, get little, while preferential treatment is meted out to the clergy and the barons. Its benefits are confined to freemen, and of the benefits the lion’s share fell to the larger landholders; the smaller landholders getting, it is true, some crumbs from the table. It did not establish freedom from arbitrary arrest, or the right of the representatives of the people to control taxation, or trial by jury, or other conceptions of a later generation.

The story of Magna Carta after the death of John is soon told. On the 12th of November 1216 the regent William Marshal, earl of Pembroke, reissued the charter in the name of the young king Henry III. But important alterations were made. War was being waged against Louis of France, and the executive must not be hampered in the work of raising money; moreover the personal equation had disappeared, the barons did not need to protect themselves against John. Consequently the chapter limiting the power of the crown to raise scutages and aids without the consent of the council vanished, and with it the complementary one which determined the method of calling a council. Other provisions, the object of which had been to restrain John from demanding more money from various classes of his subjects,