The Court of Exchequer, instituted by William the Conqueror, was, at first, only a simple court for receiving the accounts of the administration of the king's revenues, and those of the sheriffs, bailiffs, &c., and for judging the suits that arose on this subject. It was composed of barons, chosen by the king to form his council, and to aid him in his government. In proportion as the larger assembly, the Curia regis, came to be held less frequently, so did the Court of Exchequer gain in importance. The barons who composed it began to judge on their own responsibility, and alone, in the absence and before the convocation of the assembly; this change was introduced by necessity, confirmed by custom, and finally sanctioned and established by law. About the year 1164, another royal court of justice, distinct from the Court of Exchequer, arose out of it, the members of which, however, were the same as those composing the Court of Exchequer. The kings lent their assistance to this change, because it benefited their revenues. At this period were established writs of chancery, which gave to purchasers the right to apply at once to the royal justice, without previously passing the subordinate courts of justice. Soon the ignorance of the freeholders, who composed the county-courts, necessitated the same extension of the royal justice there also, and, in the reign of Henry I., itinerant justices were sent into the counties, in order to administer there in the same way as was done by the Court of Exchequer. This institution was in full vigour only during the reign of Henry II.
In this way the predominant influence of the king, in judicial order, was established; this was a powerful instrument in producing centralization and unity, and yet, as the royal judges only interposed their services as supplementary to the institution of the jury, and did not substitute them for it, for questions of fact and questions of right remained distinct,—the germ of free institutions, that existed in the judicial order, was not entirely destroyed.
A king invested with such powerful resources could with difficulty be restrained by an irregular assembly; accordingly the government of the Norman kings was almost always arbitrary and despotic. Persons and property were never in security; the laws, taxes, and judicial sentences were almost always merely an expression of the royal will.
When we consider these facts collectively, we may be led to two very opposite results, according to the point of view from which we regard them: on the one hand, we see the general assembly of the nation interfering pretty frequently in public affairs, not by virtue of any particular official character it possessed, nor for the purpose of exercising any one special right, such as that of making general laws, or of voting supplies, but on occasions widely differing from one another, and for the purpose of acquiescing in the entire course of government. Laws, external relations, peace, war, ecclesiastical affairs, the judgment of important cases, the administration of the royal domains, nominations to great public offices, even the interior economy and proceedings of the royal family, all seem to belong to the province of this national assembly. No matter is foreign to it, no function forbidden to it, no kind of investigation or of action refused to it. All distinction of provinces, all lines of demarcation between the prerogatives of the crown and those of the assembly, appear to be unknown; we might say that the entire government belonged to the assembly, and that it exercised in a direct way that activity, that general supervision, which belongs indirectly to the mature and perfected representative system, by virtue of its influence on the choice of those who are to be the depositaries of power, and by means of the principle of responsibility.
On the other hand, if we forget the assembly and examine the royal power, as isolated, we shall see it exercising itself in a multitude of cases, in as absolute and arbitrary a manner as if no assembly had existed to share in the government. The king, on his own responsibility, made laws, levied taxes, dispossessed proprietors, condemned and banished important persons, and exercised, in a word, all the rights of unlimited sovereignty. This sovereignty appears entire, sometimes in the hands of the assembly, sometimes in those of the king; when the assembly proceeds to interfere in all the details of government, we do not find any complaint from the king, as if an encroachment had been made on his prerogatives; and when, on the other hand, the king governs despotically, we do not find the assembly bestirring itself to protest against the extension of royal power, as a blow aimed at their rights.
Thus we are met by two classes of facts, simultaneously existing in this infancy of society,—facts which seem to belong to a fully developed system of free institutions, and facts which are characteristic of absolute power. On the one hand, the aim of free governments, which is, that the nation should interfere, directly or indirectly, in all public affairs, seems to be attained; on the other hand, the independent and arbitrary domination of the royal power appears to be recognized.
This is a result that must necessarily arise in the disorder of a nascent and troubled stage of civilization. Society is then a prey to chaos;—all the rights and all the powers of a community co-exist, but they are confounded, unregulated, unmarked by limits, and without any legal guarantee;—freemen have not yet abdicated any of their liberties, nor has force yet renounced any of its pretensions. If any one had said to the barons of William, or of Henry I., that they had nothing to do with affairs of State, except to comply when the king demanded an impost, they would have been indignant. All the affairs of the State were theirs, because they were interested in them; and when they were called upon to deliberate concerning peace or war, they believed that they were exercising a right belonging to them, and not making a conquest over royal authority. No freeman, who was strong enough to defend his freedom, recognized any right in another person to dispose of him without his consent, and found it a very simple matter to give his advice on questions that were interesting to him. The king, in his turn, measuring his right by his force, did not recognize in any person, nor, consequently, in any assembly, the legal right to prevent him from doing that which he was able to do. There were then, properly speaking, no public rights or powers at all; they were almost entirely individual and dependent on circumstances; they are to be found, but in a state of isolation, unconscious of their own nature, and, indeed, of their very existence.
In this disorderly state of things, the able and energetic government of William I., Henry I. and Henry II. caused the royal power gradually to assume a much more general and consistent character. Accordingly, national assemblies became by degrees more rare and less influential; under Stephen, they almost entirely disappeared. The barons no longer had a common meeting-point, and were more occupied with the rule of their own domains than with any association with the royal power for the purpose of controlling or restraining it. Each devoted himself more exclusively to his own affairs, and the king, following this example, made himself almost the sole master of those of the State. He availed himself of the need of order and regularity that made itself felt every day, in order to constitute himself, in some sort, the dispenser of them. By these means he soon became the first in name, as well as the most powerful in fact. Through him, the roads became more secure; he protected the feeble, and repressed robbers. The maintenance of public order devolved upon the royal power, and became the means of extending and strengthening it more and more. Whatever the king had possessed himself of by conquest, he vindicated as his own by right. Thus was formed the royal prerogative.
But at the same time different circumstances concurred to draw the barons forth from their isolation, to unite them among themselves, and to form them into an aristocracy. The Anglo-Norman throne was successively occupied by three usurpers, William II., Henry I., and Stephen. Invested with a power whose title was doubtful, they felt the necessity of bringing the barons to recognize their claims; hence the first charters were conceded. No one of the barons was powerful enough, in himself, to restrain the threatened extension of royal power, but they formed the habit of making coalitions; and as each of the barons entering into such coalitions, felt the necessity of attaching his vassals to himself, concessions were made to them also. The absence of large fiefs, in England, served the cause both of power and of liberty; it allowed power to form itself into unity with greater facility, and it obliged liberty to seek for guarantees in the spirit of association. That which finally contributed in the most decided way to form and consolidate this aristocratic coalition, was the irregular and usurping conduct of John during the long absence of Richard Cœur-de-Lion, and the disorders and civil wars which were naturally the results of this absence. In the midst of these disorders the government fell into the hands of a council of barons, that is to say, of a portion of the aristocracy. Those who had no share whatever in the central power did not cease to control it, and to regard it as rightfully theirs; in this way, the one party formed a habit of governing, the other that of resisting a government which was in the hands of their equals, and not of the king himself. John, by his cowardice and ill-judged familiarity, had brought the throne into disrespect before he himself ascended it, and his barons much more easily conceived the idea of resisting as a king, one whom they had despised as a prince.
Thus, in the space of a hundred and thirty years, two elements in the State, which were at first confounded and had almost acted in common, were separated and formed into distinct powers,—the royal power on the one hand, and on the other, the company of barons. The struggle between these two forces then commenced, and we shall see royalty continually occupied in defending its privileges, and the aristocracy as unweariedly busying itself in the endeavour to extort new concessions. The history of the English charters, from the reign of William I. to that of Edward I., who granted them a general confirmation, is the history of this struggle, to which England is indebted for the earliest appearance of the germs of a free government, that is to say, of public rights and political guarantees.
History of English Charters.
Charter of William the Conqueror (1071).
Charter of Henry I. (1101).
Charters of Stephen (1135-1136).
Charter of Henry II. (1154).
Liberties are nothing until they have become rights,—positive rights formally recognized and consecrated. Rights, even when recognized, are nothing so long as they are not entrenched within guarantees. And lastly, guarantees are nothing so long as they are not maintained by forces independent of them, in the limit of their rights. Convert liberties into rights, surround rights by guarantees, entrust the keeping of these guarantees to forces capable of maintaining them—such are the successive steps in the progress towards a free government.
This progress was exactly realized in England in the struggle, the history of which we are about to trace. Liberties first converted themselves into rights; when rights were nearly recognized, guarantees were sought for them; and lastly, these guarantees were placed in the hands of regular powers. In this way a representative system of government was formed.
We may date from the reign of King John as the period when the efforts of the English aristocracy to procure a recognition and establishment of their rights became conspicuous; they then demanded and extorted charters. During the reign of Edward I., the charters were fully recognized and confirmed; they became real public rights. And it was at the same epoch that a Parliament began to be definitely formed, that is to say, the organization of political guarantees commenced, and with it the creation of the regular power to which they are entrusted.
I have shown how the two great public forces—royalty and the council of barons, were formed, cemented, and brought into juxtaposition. We must now follow these forces into the combats in which they engaged their energies in order to have their reciprocal rights recognized and regulated; and to do this we must trace the history of English charters. I shall then enquire how the guarantees were organized, that is to say, how the Parliament was formed.
When William the Conqueror arrived in England, his position with respect to the Norman barons and knights had been already regulated on the Continent by the feudal law; their respective rights were fixed and recognized. After the Conquest, fear of the Anglo-Saxons kept the king and the Normans so far united, that neither of them cared much to extort concessions from the other. Very different, however, were the relations between William and his English subjects. He had to adjust these relations,—here was a legislation to be created, and rights to be recognized or contested. The English made the most strenuous efforts to preserve their Saxon laws, and it appears to have been in the fourth year of William's reign (the year 1071) that they succeeded in gaining an assurance that these laws should be maintained. There is reason to believe that on this occasion he granted the charter intituled, "Charta regis de quibusdam statutis per totam Angliam firmiter observandis." Some have asserted that this charter was not granted till nearly the end of William's reign, but I see no reason for assigning any other period to it than that which I have mentioned.
This charter, the authenticity of which [Footnote 19] has been sometimes questioned, I think on insufficient grounds, is a kind of vague declaration containing the general principles of feudal political law.
[Footnote 19: The original is lost, but a copy of it exists in the Red Book of the Exchequer, which gives a strong presumption for its authenticity. Besides, the charter of Henry I. makes a distinct allusion to it.]
William, in it, recognizes rights which he often allowed himself to violate; for his power rendered the violation of his promises easy. The Norman barons did not form themselves into any body, unless perhaps against the English; they were all too much occupied in the work of establishing themselves in their new domains. If they sometimes roused themselves to oppose the tyranny of William, their revolts were only partial, and the king adroitly used the English in order to put them down. His son, William Rufus, by adopting the same policy, obtained similar success. But Henry I. had to pay for his usurpation; the charter which he granted was the inevitable consequence of his possession of the throne.
This charter of Henry's contains a solemn promise to respect all ancient rights. In it the king promises no more to follow all the evil practices by which the kingdom of England was oppressed under the king his brother, that is to say, not to appropriate the revenues of vacant abbacies and bishoprics, nor again to sell or farm ecclesiastical benefices, and to permit the heirs of his vassals to inherit their possessions on paying a just and legitimate fine. He assures to his barons their right to give their daughters or sisters in marriage to whomsoever they will, provided it be not to one of the king's enemies; he grants to widows who are left without children the possession of their dowry and jointure, and liberty to marry again according to their free choice; and he renounces the right of guardianship, placing it in the hands either of the wife or some relative. He gives to all his vassals the right to dispose of their property either by gift or by will, renounces the right arbitrarily to levy taxes on the farms of his vassals, abandons the forests which William Rufus had usurped, and abolished feudal aids, even in the three cases which we have already specified. Lastly, he withdraws the right of coining from the towns and counties, pardons all the offences and crimes committed before his reign, and recommends his vassals to allow their vassals to enjoy all the advantages which he accords to them.
These concessions were merely recognitions of rights, without guarantees. Henry, accordingly, despite his oaths, violated these magnificent promises; and the abuses which they ought to have removed were not diminished in any degree, during the whole extent of his reign.
Another charter was granted by Henry I. to the city of London, by which it was authorized, among other things, to elect its own sheriff and chief magistrate, to hold its accustomed assemblies, not to pay either the danegeld or any other scot, or imposts for works along rivers, and not to give lodging to the retinue of the king.
Lastly, we find new promises and new concessions made by Henry I. in 1101, when his brother Robert laid claim to his rights. Wishing to assure himself of the fidelity of his barons, Henry assembled them at London, and delivered to them a speech, in which, after having given a hideous representation of Robert's person, he added:—"As for me, I am truly a mild king, modest and pacific; I will preserve to you, and diligently guard your ancient liberties, which I have before sworn to maintain; I will listen with patience to your wise suggestions, and will govern you justly after the example of the best princes. If you desire it, I will confirm this promise by a written charter, and I will swear afresh to observe inviolably all the laws of the holy king Edward," &c. &c.
These promises, made in a moment of danger, were always forgotten as soon as ever the danger had disappeared. During his entire reign, Henry continually violated the charter to which he had bound himself by oath, both as regards matters relating to feudal dependence, and in the levying of imposts. According to the historians, he levied each year a tax of twelve pence on every hide of land, a tax which was probably identical with the danegeld.
Stephen, Henry's successor, granted charters to his subjects as Henry had done, and these charters were also the result of usurpation. He published two; the first only confirmed the liberties granted by Henry I., and the laws of Edward the Confessor. The second is remarkable as containing a promise made by Stephen to reform the abuses and exactions of his sheriffs. At this period public offices were farmed, and those who filled them, seeking to gain all the advantages possible from them, were far more oppressive on their own account than on account of the king. Accordingly it was no difficult matter to appeal to the king against his own officers. Such a mode of appeal, however, indicates that legal and regular guarantees were unrecognized and but little thought of. The barons however began to procure them, by force. They obtained from the king permission to fortify their castles and put themselves in a state of defence. And the clergy on their part, while taking the oath of fidelity, attached to it a condition that they should be released from its obligation as soon as the king should trespass on ecclesiastical liberties.
The charter granted by Henry II., about the year 1154, still expresses nothing more than a recognition of rights; it does not contain any new promise, or any concession of guarantees. The reign of this prince, I need hardly remind you, was entirely occupied with his disputes with the clergy, with the revolts of his sons, and with his conquests, both on the Continent and in Ireland. No important differences were brought into discussion between him and his barons; no progress in existing institutions is visible, and we may say that the reign of Henry II., considered from this point of view, was orderly and stationary.
If, however, the king, so far as his relations to his barons were concerned, obtained an almost uninterrupted submission, and caused the demolition of most of those fortified castles which had been constructed during the preceding reign, the towns on the other hand, and especially the city of London, increased in strength and importance, and the aristocracy became every day more compact by means of the fusion of the Normans and the English, a fusion which was almost completed during this reign, at least among the upper classes.
The fact of this period which bears most importantly upon the subject which we have under consideration, is the substitution of the escuage for the personal service of the vassals. It is under the reign of Henry II. that we find this impost collected for the first time, at least in the form of a general measure. The establishment and limitations of the escuage became soon the principal object of contention between the king and his barons. The use which the kings came to make of the resources derived from this impost was fatal to them, for they employed it in order to keep up armies of foreign mercenaries, especially Brabanters; and by these measures, they gave a new motive to the English barons to coalesce. The expulsion of foreign soldiers became at length one of the continually recurring demands of the barons.
Henry II. towards the close of his reign, imposed by his own authority a tax of one sixth on all moveable property. He abandoned the danegeld.
The reign of Richard, which was entirely occupied with his brilliant but unfortunate expeditions, offers nothing especially illustrative of the history of institutions. The absence of the king and the weakness of the royal power supplied the feudal aristocracy with opportunities for extending their importance; but they did not at that time take advantage of their superiority to procure a recognition of their rights;—not until the reign of John did the struggle become violent and the victory decisive.
Charter of John, or the Great Charter (1215).
Three epochs in John's reign.
Formation of a coalition among the barons.
Civil war.
Conference at Runnymead.
Concession of the Great Charter.
Analysis of this Charter.
Its stipulations refer to national rights as well as to those
of the barons.
John petitions and obtains from Innocent III. a bull to reverse
the Great Charter.
Resistance of the English clergy.
Recommencement of the civil war (October, 1215).
Louis of France, son of Philip Augustus, is appealed to by the
barons.
Death of John (October, 1216).
During King Richard's absence, the administration of the kingdom had fallen into the hands of the barons: the feudal aristocracy had begun again to interfere directly in the government, both by way of encroachment and of resistance. Still, the acts of the barons had no longer the same character which they possessed under the preceding reigns; they no longer offered an open resistance; they did not demand any new charters; they did not petition for the observance of former ones: but they silently collected their forces in anticipation of a struggle which was to be decisive. We find them submitting to the exactions which Richard imposed on all classes of society, both for his crusade and for his ransom. Nevertheless, the old maxims as to the necessity of obtaining the consent of the barons to every extraordinary imposition, had revived with new vigour. This right of giving consent to tributes was vindicated with an increasingly determined firmness; and in the first assembly, which Richard held at Nottingham after his return from the East, he was unable to establish an impost of two shillings on every hide of land until he had obtained the consent of his barons. Already every tribute that was levied on the sole authority of the king had begun to stir up a spirit of resistance. This resistance declared itself as soon as John ascended the throne, and the opposition which had been preparing during the reign of Richard then started into prominence.
The reign of John may be divided into three epochs: from 1199 till 1206, he was occupied with his quarrels with the king ol France, and with the struggle which arose from the refusal of the barons to second him in his continental enterprises. From 1206 to 1213, John was occupied by his disputes with the Pope and the clergy. Lastly, from the year 1213 to the close of his reign, his position with reference to the barons and the clergy became more and more hostile; it revealed to him their power and his own feebleness; and constantly succumbing before them, we see him yielding one point after another to the clergy and barons, who were always united in their attacks upon him, until at length he granted that celebrated charta usually called Magna Charta, which is a lasting monument of John's defeat and the abiding basis of the English constitution.
John was not the lawful heir to the crown; it belonged to his nephew, Arthur, Duke of Bretagne, whose rights were further confirmed by a testament of Richard. Nevertheless, by his largesses and his yielding disposition, John found no difficulty in usurping the throne of England. The opposition was stronger in his continental possessions; the feudal ideas there prevailing favoured the system of representation, and the people were more disposed to recognize the claims of a son than those of a brother. Anjou, Poitou, Maine and Touraine declared for Arthur. In 1201 (others say in 1204) John demanded of the barons, whom he had assembled at Oxford, that they should assist him in the war which he purposed carrying on in France. They required, as the price of their assistance, that the king should promise to restore to them their liberties and privileges. John, without having granted anything to them, succeeded in winning over one after another, until he had obtained from each individually what had been refused to him by all when assembled. Nevertheless, this opposition showed that the coalition among the barons had taken shape and consistence.
John, who had as yet done nothing to deserve that his usurpation should be overlooked, rendered himself odious by an imprudent divorce, and by vexatious indignities. He introduced into his retinue, bullies, whom he called champions of royalty; and he obliged the discontented barons to enter into the lists with them, and to settle, by these pretended judicial combats, their disputes with the crown. At length, his exactions, his tyrannical proceedings, and above all, the murder of Arthur, whom he is said to have assassinated with his own hand, excited against him an almost general rising. Abandoned by his barons, driven from Normandy, Anjou, Maine, Touraine, and a part of Poitou, John, instead of conciliating the minds of his people, only acted in such a manner as to alienate them more and more, and only defended himself by rendering himself more odious. A new escuage of two marks and a half for every knight's fief was extorted from the barons. John had, therefore, to endure a new refusal when he asked them a second time to follow him to the Continent. In vain was it that he employed those means which had before succeeded; he was obliged to yield, and to allow Philip Augustus to take possession of Normandy, and reunite it to the crown of France.
It was not enough for John that he had entered into hostilities with the lay aristocracy; he still further made himself inimical to the clergy. On the death of the Archbishop of Canterbury, the Augustin monks had arrogated to themselves the right of appointing his successor without the consent of the king. John, nettled by this invasion of his prerogatives, united with the bishops, who also protested against an election in which they had taken no part, and in concert with them, nominated the Bishop of Norwich to the vacant see. Upon this, Innocent III. interfered in the dispute;—but without confirming either of the two elections, he ordered the English clergy to choose Cardinal Stephen Langton. The king, enraged against the Court of Rome, drove all the monks from Canterbury, and made himself master of their revenues. Accordingly, the Pope excommunicated the monarch, placed the whole kingdom under his ban, and released his subjects from the oath of fidelity which they had sworn to John. Moreover, he charged Philip Augustus to execute his decrees, and offered to him the crown of England. Philip eagerly accepted the present, while John, frightened by the double danger which pressed upon him, demanded, but in vain, assistance from his barons;—he had acted unjustly towards them, and now he found them indifferent to his misfortunes. At last, stripped of all resources and left without hope, he sought safety in submission, and saved himself by means of base servility: he declared himself a vassal of the pope, and engaged to pay him annually a tribute of a thousand marks.
After John had thus ransomed his crown, he soon endangered it again by renewed acts of imprudence; his base tyranny, and his criminal attempts on the wife of Eustace de Vesci, roused the barons against him, and their opposition, was directed and stimulated by the primate Langton.
It is not to be wondered at that the feudal aristocracy should act under the guidance of an ecclesiastic; the two orders made common cause, and this coalition, which preceding kings had always endeavoured to prevent, was one of the effects of John's odious and absurd conduct. He forgot that the royal power could only maintain itself so long as the power of the clergy and that of the barons balanced one another; when they united, he was obliged to succumb. Their union was the result of John's base submission to the Holy See; the English clergy, tired of the despotism of Rome, and regretting the loss of their privileges, openly embraced the cause of national liberty.
Such was the pervading feeling, when (August 25, 1213) an assembly of the barons was convened at London. In one of their meetings, Cardinal Langton informed them that he had found a copy of the charter of Henry I., which was then entirely forgotten; this charter was read to the assembly, and received with enthusiasm. Another meeting was held at Saint Edmundsbury (November 20, 1214), and there each baron, laying his hand upon the altar, took an oath that he would use his efforts to force the king to restore in full vigour the charter of Henry I. They soon presented themselves at London in arms, and on January 5, 1215, they demanded from John, in a formal and positive way, the renewal of this charter, as well as of the laws of Edward the Confessor. John, terrified by their firmness, requested that some leisure might be granted to him in order to think over these demands, and accordingly his answer was deferred till Easter. During this interval, he endeavoured to introduce division among his enemies, and in the first place, wishing to conciliate the clergy, he granted them by a charter the liberty of electing their own bishops and abbots, and sent William de Mauclerc to Rome to complain of the audacity of the barons. They too despatched Eustace de Vesci to Rome, to represent to the pontiff the justice and sacredness of their cause. This embassy, however, failed in its object; the Pope condemned the barons: but they were not to be intimidated from their purposes, and John, determining to make another effort in order to secure the support of the church, took the cross on the 2nd of February, 1215, and made a vow to lead an army into Palestine.
The respite, however, which the barons had granted to the king came to an end, and they met again at Stamford in Lincolnshire, on the 19th of April, 1215, being followed by nearly two thousand knights in arms. The king asked them what their claims were; they made at Stamford the same answer as they had made in London, and presented the charter which they had sworn to establish. "And why do they not demand my crown also?" exclaimed John in his fury; "by God's teeth, I will not grant them liberties which will make me a slave." This answer was taken as a declaration of war, and on the 5th of May following, the barons met at Wallingford, solemnly renounced their oath of allegiance, and at the same time named Robert Fitz-Walter general of the "army of God and of Holy Church."
War was declared: in vain did the Pope address letters to the barons, in which he commanded them to desist from their enterprise; the hostilities which had been commenced only continued with greater vigour, and on the 24th of May, the triumphant barons took possession of London with the consent of the citizens. John left the city and retired to Odiham, in the county of Hampshire, with no other escort than seven knights. From his retreat he attempted, without success, to enter into negotiations; he proposed the intervention of the Pope, but this was also refused: baffled in all his attempts, he was at length necessitated to acquiesce in the law which had been forcibly imposed on him.
On the 13th of June, a conference was opened in the plain called Runnymead, between Windsor and Staines. The two parties had separate encampments, as declared enemies; after some trifling debates, the king at first adopted the preliminary articles, and four days after, on the 19th of June, 1215, he made the grant of the famous act known by the name of the Great Charter,—Magna Charta.
This charter, the most complete and important that had yet appeared, may be divided into three distinct parts; one referring to the interests of the clergy, another regulating those of the nobility, and the third, those belonging to the people. This methodical division is not taken from the order in which the articles of the actual charter are distributed, but I have here adopted it in order to render my account of it more natural and distinct.
The Great Charter refers but little to ecclesiastical interests, since they had been settled by the charter already granted to the clergy. All that was therefore required was that this should be confirmed. This accordingly is done in the first article, which grants a general confirmation to all ecclesiastical immunities and privileges.
The privileges of the laity, on the other hand, were more uncertain, and more strongly contested; it was therefore necessary that they should be minutely investigated and separately conceded. The Great Charter is almost entirely devoted to the settlement of the rights, and the confirmation of the privileges, claimed by the laity.
In the first place, it determines with precision what had been obscure and ambiguous in the feudal laws; and it fixes the amount of relief which the immediate or indirect inheritors of fiefs should pay. Hitherto this relief had been indeterminate. (Arts. 2 to 3.)
Then follow the precautions prescribed respecting the marriage of feudal wards, and those which regard the widows and children of vassals. (Arts. 6 to 8.)
The right and mode of collecting aids and escuages, are regulated by the two following articles:—
"Art. 12. That no escuage or extraordinary aid shall be imposed
in our kingdom, except by the national council of our kingdom,
unless it be to ransom our person, to equip our eldest son as a
knight, and to marry our eldest daughter: and for these last
cases only a reasonable amount of aid shall be demanded, &c."
"Art. 14. In order to hold the national council of the kingdom,
for the purpose of imposing any other aid than for the three
cases heretofore mentioned, or to impose an escuage, we will
call together the archbishops, bishops, abbots, earls and great
barons, individually and by letters from ourself; and we will
assemble together by means of our viscounts and bailiffs, all
those who are directly dependent upon us.
The great convocation shall be made on a fixed day, namely, at
intervals not greater than forty days, and in an appointed
place; and in the letters of convocation we will expound the
reason of such convocation; and the convocation thus made, the
business shall be transacted on the day appointed, by the
council consisting of those who are present, although all those
who have been summoned may not have arrived."
This charter is the first document in which we find a distinction established between the greater and lesser barons, and the higher and lower clergy; an important fact, since it may perhaps be regarded as the original source of the separation between the two Houses of Parliament.
Lastly, several articles have for their object to limit the rights of the king on the lands of his tenants, to fix the amount of fine imposed on beneficiaries according to the gravity of their offence, to determine the length of time during which lands should remain sequestrated on account of felony; in one word, to give to the barons greater independence and security than they had ever before enjoyed.
These are the principal enactments of the Great Charter in favour of the nobility; up to this point, we find only sanctions given to particular privileges, we have only met with that which favours the interests of certain classes in society. But it contains also clauses of wider and more general application; it has for its object also the interests of the nation as a whole.
First of all, almost all the immunities granted to the barons with respect to the king, the vassals obtained with respect to their lords. These were not allowed from this time to collect aids and escuages on their lands, except in the same cases and in the same manner as the king. (Art. 15.)
Justice was for the future to be administered in a fixed and uniform manner; the following are the articles in which this important provision is expressed:—
"Art. 17. The court of common pleas shall not follow our court
(curia), but shall be held in a fixed place.
"Art. 18. We, or if we are absent from the kingdom, our chief
justiciary, shall send four times a year into each county two
judges, who, with four knights, chosen by each county, shall
hold the assizes at the time and place appointed in the said
county."
"Art. 39. No freeman shall be arrested or imprisoned, or
dispossessed of his tenement, or outlawed, or exiled, or in
anywise proceeded against; we will not place or cause to be
placed hands upon him, unless by the legal judgment of his
peers or by the law of the land.
"Art. 40. Justice shall not be sold, refused, or delayed to
anyone."
Moreover, the king promises to appoint only capable and upright judges (Art. 41); to forbid their condemning any person whatever, without having previously heard the witnesses (Art. 38); to reinstate every man who had been dispossessed without legal judgment (Art. 32); to repair the injuries committed under Henry II., and Richard I. (Art. 53); to put a stop to the imposts for the construction of bridges (Art. 23); and to interdict annoyances of all kinds inflicted either on townsmen, merchants, or villeins (Arts. 20, 26, 28, 30, 31).
He grants and assures to the city of London, as well as to all other cities, boroughs, towns, and harbours, the possession of their ancient customs and liberties (Art. 13).
Lastly, the 41st Article provides that all merchants shall have full and free liberty of entering England, of leaving it, of remaining there, and of travelling there by land and by water, to buy and to sell without being subject to any oppression (male toltâ) according to the ancient and common usages, &c.
These, then, are the concessions made to promote the interests of all.
It is not, however, enough that rights should be recognized and promises made; it is further necessary that these rights should be respected, and that these promises should be fulfilled. The 61st and last article of the Great Charter is intended to provide this guarantee. It is there said that the barons shall elect twenty-five barons by their own free choice, charged to exercise all vigilance that the provisions of the Charter may be carried into effect, the powers of these twenty-five barons is unlimited if the king or his agents allow themselves to violate the enactments of the Charter in the smallest particular, the barons will denounce this abuse before the king, and demand that it be instantly checked. If the king do not accede to their demand, the barons shall have the right, forty days after the summons has been issued by them, to prosecute the king, to deprive him of his lands and castles (the safety of his person, of the queen, and of their children, being respected), until the abuse has been reformed to the satisfaction of the barons.
Though such a right was granted, no guarantee was thereby given; it only authorized civil war; it was to perpetuate the struggle indefinitely, and formally to leave the ultimate decision of the question to force. It was still far from being a regularly constituted political guarantee; but the spirit of that age was not capable either of discovering or of comprehending such a guarantee—it could only understand the recognition of its rights. However, the forcible guarantee which the Great Charter established was so far valuable, inasmuch as it centralized the feudal aristocracy by organizing the council of barons.
It has been often said that the Great Charter would not have been supported by the barons had not it not been for its influence on their special interests. This opinion is untenable: how is it possible that at least a third of the articles should have related to promises and guarantees made on behalf of the people, if the aristocracy had only aimed at obtaining that which should benefit themselves? We have only to read the Great Charter in order to be convinced that the rights of all three orders of the nation are equally respected and promoted.
Another question has been raised, as to whether John did or did not grant a special charter relating to forests at the time when he granted the Great Charter. Mathew Paris is the only author who speaks of this charter of forests, and there are several reasons why his authority should in this matter be rejected. First of all, the preliminary articles of the Great Charter contain nothing on this point; in the second place, Articles 44, 47, and 48 in the Great Charter itself settle whatever relates to forests; and lastly, the king and the Pope, in their correspondence prior to these events, make no allusion to this twofold concession.
When the king had distinctly adopted each article of the Great Charter, the agreement between him and his barons, which had been concluded on the 15th of June, was executed in order to ensure the fulfilment of his engagements. The guarding of the city of London was entrusted to the barons till the 15th of August following, and that of the Tower to the Archbishop of Canterbury.