Читать книгу Magna Carta: A Commentary on the Great Charter of King John - William Sharp McKechnie - Страница 23

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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. These rights are fully discussed, one by one, in the second 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.

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

I. Provisions classified according to the various prerogatives of the Crown which they affect.

Dr. Gneist^[194] adopts this principle of division, and arranges the chapters of Magna Carta into five groups according as they place legal limitations (1) on the feudal 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, if convenient for some purposes, seems artificial and unreal, since it is founded on distinctions which were not clearly formulated in the thirteenth century. The adoption of such a principle of classification with reference to a period when the various functions of the executive were still blended together indiscriminately is somewhat of an anachronism.^[195]

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

Among the many questions pressing for answer, none seem more natural than those which inquire into the relations between the promises made in the Charter and the system of government actually at work under Henry of Anjou and his sons; or the relations between these promises and the still older laws of Edward Confessor.

The view generally entertained is that the provisions of Magna Carta are chiefly, if not exclusively, of a declaratory nature. The Great Charter has for many centuries been described as an attempt to confirm and define existing customs rather than to change them. In the words of Blackstone,^[196] writing in 1759, “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.^[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. 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. In many points of detail the Charter must look for its antecedents rather to the administrative changes introduced by Henry II. than to the old customary law that prevailed before the Conquest.

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 embodied and handed down to future ages some of the usages of the old customary law of Anglo-Saxon England, 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 subsequently to 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.”^[198] Finally, (4) in some few points, the Charter actually aimed at going farther than Henry II., great reformer as he was, had intended to go. Thus, to mention only two particulars, the Petty Assizes are to be taken in every county four times a year, while sheriffs and other local magistrates are entirely prohibited from holding pleas of the Crown.

There are two further reasons why we cannot be content with an explanation which dismisses Magna Carta with the bald statement that its provisions are merely of a declaratory nature. History has proved the universal truth of the theory that a purely declaratory enactment is impossible; since the mere lapse of time, by producing an altered historical context, necessarily changes the purport of any Statute when re-enacted in a later age. Even if words identically the same are repeated, the new circumstances read into them a new meaning. Such is the case even when the framers of these re-enactments are completely sincere, which, often, they are not. It is no unusual device for innovators to render their reforms more palatable by presenting them disguised as returns to the past. Magna Carta affords many illustrations of this. Its clauses, even where they profess to be merely confirmatory of the status quo, in reality alter existing custom.

Further, it is of vital importance to bear in mind the exact nature of the provisions confirmed or declared. A re-statement of some of the more recent reforms of Henry II. (or of those of Archbishop Hubert Walter, following in his footsteps) leads logically to progress rather than to mere stability; while the professed confirmation of Anglo-Saxon usages or of ancient feudal customs, fast disappearing under the new régime, implies retrogression rather than standing still. Chapters 34 and 39 of Magna Carta, for example, are of this latter kind. They really demand a return to the system in vogue prior to the innovations of Henry II. when they declare in favour of feudal jurisdictions. Thus, some of the provisions of the Great Charter which, at a casual glance, appear to be correctly described as 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.

This third principle of arrangement would stand condemned as completely misleading, if it were necessary to accept as true, in any literal sense, the assertions so frequently made concerning the absolute equality of all classes and interests before the law—as that law was embodied in Magna Carta. Here, then, we are face to face with a fundamental question of immense importance: Does the Great Charter really, as the orthodox traditional view so vehemently asserts, protect the rights of the whole mass of humble Englishmen equally with those of the proudest noble? Is it really a great bulwark of the constitutional liberties of the nation, considered as a nation, in any broad sense of that word? Or is it rather, in the main, 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 (who assumes in every page of his Second Institute that the rights won in 1215 were as valuable for the villein as for the baron) down to writers of the present day. Lord Chatham in one of his great orations^[199] 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,^[200] in citing Chatham’s words with approval, caps them 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.” Lord Chatham indeed spoke with the unrestrained enthusiasm of an orator; yet staid lawyers and historians like Blackstone and Hallam seem to vie with him in 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.^[201] 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.”^[202]

Dr. Gneist is of the same opinion. “Magna Carta was a pledge of reconciliation between all classes. Its existence and ratification maintained for centuries the notion of fundamental rights as applicable to all classes in the consciousness that no liberties would be upheld by the superior classes for any length of time, without guarantees of personal liberties for the humble also.”^[203]

“The rights which the barons claimed for themselves,” says John Richard Green,^[204] before proceeding to enumerate them, “they claimed for the nation at large.” The testimony of a very recent writer, Dr. Hannis Taylor,^[205] may close this series. “As all three orders participated equally in its fruits, the great act at Runnymede was in the fullest sense of the term a national act, and not a mere act of the baronage on behalf of their own special privileges.” 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 of the nation, not merely those of the feudal magnates on whose initiative the quarrel was raised.

It must not be forgotten, however, that the truth of historical questions does not depend on the counting of votes, or the weight of authority; nor that a vigorous minority has always protested on the other side. “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.”^[206] It is not safe to accept, without a careful consideration of the evidence, the opinions cited even from such high authorities. “Equality” is essentially a modern ideal: in 1215, the various estates of the realm may have set out on the journey which was ultimately to lead them to this conception, but they had not yet reached their goal. 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.

Two different parts of the Charter have a bearing on this question; namely, chapter 1, which explains to whom the rights were granted, and chapter 61, which declares by whom they were to be enforced. John’s words clearly tell us that the liberties were confirmed “to all freemen of my kingdom and their heirs for ever.” This opens up the crucial question—who were freemen in 1215?

The enthusiasm, natural and even laudable in its proper place, although fatal to historical accuracy in its results, which seeks to enhance the merits of Magna Carta by exalting its provisions and extending their scope as widely as possible, has led commentators to stretch the meaning of “freeman” to its utmost limits. The word has even been treated as embracing the entire population of England, including not only churchmen, merchants, and yeomen, but even villeins as well. There are reasons, however, for believing that it should be understood in a sense much more restricted, although the subject is darkened by the vagueness of the word, and by the difficulty of determining whether it bears any technical signification or not. “Homo,” in medieval law-Latin, has a peculiar meaning, and was originally used as synonymous with "baro"—all feudal vassals, whether of the Crown or of mesne lords, being described as “men” or “barons.” The word was sometimes indeed more loosely used, as may have been the case in chapter 1. Yet Magna Carta is a feudal charter, and the presumption is in favour of the technical feudal meaning of the word—a presumption certainly not weakened by the addition of an adjective confining it to the “free.” This qualifying word certainly excluded villeins, and possibly also the great burgess class, or many of them. There is a passage in the Dialogus de Scaccario (dating from the close of the reign of Henry II.), in which Richard Fitz-Nigel reckons even the richest burgesses and traders as not fully free. He discusses the legal position of any knight (miles) or other freeman (liber homo) losing his status by engaging in commerce in order to make money.^[207] This does not prove that rich townsmen were ranked with the villani of the rural districts; but it does raise a serious doubt whether in the strict legal language of feudal charters the words liberi homines would be interpreted by contemporary lawyers as including the trading classes. Such doubts are strengthened by a narrow scrutiny of those passages of the Charter in which the term occurs. In chapter 34 the liber homo is, apparently, assumed to be a landowner with a private manorial jurisdiction of which he may be deprived. In other words, he is the holder of a freehold estate of some extent—a great barony or, at the least, a manor. In this part of the Charter the “freeman” is clearly a county gentleman.

Is the “freeman” of chapter 1 something different? The question must be considered an open one; but much might be said in favour of the opinion that “freeman” as used in the Charter is synonymous with “freeholder”; and that 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 Magna Carta.^[208]

To the question, who had authority to enforce its provisions, the Great Charter has likewise a clear answer, namely, a select band or quasi-committee of twenty-five barons. Although the Mayor of London was chosen among their number, it is clear that no strong support for any democratic interpretation of Magna Carta can be founded on the choice of executors; since these formed a distinctly aristocratic body. Yet this tendency to vest power exclusively in an oligarchy composed of the heads of great families may have been counteracted, so it is possible to contend, by the invitation extended by the same chapter to the communa totius terrae to assist the twenty-five Executors against the King in the event of his breaking faith. Unfortunately, the extreme vagueness of the phrase makes it rash in a high degree to build conclusions on such foundations. It is possible to interpret the words communa totius terrae as applying merely to “the community of freeholders of the land,” or even to “the community of barons of the land,” as well as to “the community of all the estates (including churchmen, merchants, and commons) of the land,” as is usually done on no authority save conjecture. Every body of men was known in the thirteenth century as a communa; a word of exceedingly loose connotation.

So far, our investigations by no means prove that the equality of all classes, or the equal participation by all in the privileges of the Charter, was an ideal, consciously or unconsciously, held by the leaders of the revolt against King John. Magna Carta itself contains evidences which point the other way, namely, to the existence of class legislation. At the beginning and end of the Charter, clauses are carefully inserted to secure to the Church its “freedom” and privileges; churchmen, in their special interests, must be safeguarded, whoever else may suffer. “Benefit of clergy,” thus secured, implies the very opposite of “equality before the law.” Other interests also receive separate and privileged treatment. Many, perhaps most, of the chapters 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—an anticipation, almost, of the later division into the three estates of the realm—commons, clergy, and lords temporal. A careful distinction is occasionally made (for example, in chapter 20) between the freeman and the villein, and the latter (as will be proved later on) was carefully excluded from many of the benefits conferred on others by Magna Carta. In this connection, it is interesting to consider how each separate class would have been affected if John’s promises had been loyally kept.

(1) The Feudal Aristocracy. Even a casual glance at the clauses of the Great Charter shows how prominently abuses of 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 it is true that the relief primarily intended for them indirectly benefited other classes as well.

(2) Churchmen. 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 appearance of having been tacked on as an after-thought, due probably to the influence of Stephen Langton.^[209] Further, they are mainly confirmatory of the separate Charter already twice granted within the few preceding months. The National Church indeed, with all its patriotism, had been careful to secure its own selfish advantage before the political crisis arrived.

(3) Tenants of Mesne Lords. When raising troops with the object of compelling John to grant Magna Carta by parade of armed might, the barons were perforce obliged to rely on the loyal support of their own freeholders. It was essential that the knights and others who held under them should be ready to fight for their mesne lords rather than for the King their lord paramount. It was thus absolutely necessary that these under-tenants should receive some recognition of their claims in the provisions of the final settlement. Concessions conceived in their favour are contained in two clauses (couched apparently in no specially generous spirit), namely, chapters 15 and 60. The former limits the number of occasions on which aids might be extorted from sub-tenants by their mesne lords to the same three as were recognized in the case of the Crown. Less than this the barons could scarcely have granted. 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.

(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]

(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.

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]

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.