The problem then, for the historical teacher, as for the historical researcher, is how best to reconstruct the once full-blooded life of the past out of the dry bones that now cumber the ground. The Hebrew Prophet, Ezekiel ch. Prophesy upon these bones, and say unto them, O ye dry bones, hear the word of the Lord So I prophesied as I was commanded; and as I prophesied, there was a noise, and behold a shaking, and the bones came together, bone to his bone. And when I beheld, lo, the sinews and the flesh came up upon them, and the skin covered them above; but there was no breath in them So I prophesied, as he Edition: It is further plain that its value cannot lie in any principle of logical arrangement; for the chapters are grouped in a disorderly manner, as though they had been jotted down exactly as they occurred to the memory of the framers, and that hurriedly in case they might be quickly again forgotten.
The time now available makes it impossible, if indeed it were desirable, to give a detailed account of the sixty-three chapters of Magna Carta or even to attempt their classification; while a mere catalogue would serve no useful end. There is certainly no one clause to which the chief value of the Charter can be exclusively traced.
The elements, indeed, that have contributed to the constitutional influence of Magna Carta are numerous and varied.
While an attempt to classify these elements, on any principle of absolute mutual exclusion, would be artificial and stultifying, they may yet, perhaps, be regarded as roughly falling under the seven following heads: The Great Charter is famous: This is perhaps the cardinal principle of the whole, its insistence that there is something higher and more sacred than the will of sovereigns and rulers. Christendom was impressed by the spectacle of an anointed king obliged to surrender at discretion to his rebellious subjects.
The fact that John was compelled to accept what previously he had passionately refused, meant a loss of royal prestige and an encouragement to future resisters of oppression. For one thing, the winning of the Charter marks the beginning of a new grouping of political forces in England. No longer, as in the days of those three master-builders of our constitution, William the Conqueror, Henry Beauclerc, and Henry Plantagenet, were Crown and people united, in the name of law and order, against a baronage that contended for feudal licence.
All this was changed in ; the mass of merchants and yeomen, the small subvassals, and the clergy had in that year formed a league with the barons, as the new champions of law and order, against the Crown that had now become the chief law-breaker.
This association with new allies was accompanied by a change of Edition: Convinced that the complete feudal independence of each feudatory in his own territory was now impossible, the feudal magnates sought to control and guide the royal power they could no longer defy.
Magna Carta was the firstfruit of this new policy, and thus stands directly in the line of constitutional development. The original meaning of many of its clauses was in later centuries forgotten, and, after the decay of feudalism, new interpretations as we have seen superseded older ones. The process which substituted the redress of the abuses most bitterly felt in later centuries for those actually redressed in was usually a perfectly honest one; and, thus, even mistaken interpretations of Magna Carta have contributed to the advance of sound principles of government.
But the process of modernization culminated only in the reigns of the Stewarts. If the inaccurate eulogies of Coke and Hampden have obscured the bearing of many chapters, and diffused false notions as to the development of English law, the service these very errors have rendered to the cause of constitutional progress is measureless.
What was originally an affirmation of the validity of feudal law and custom against the arbitrary caprice of John, became in time an affirmation of seventeenth-century national law against the arbitrary stretches of prerogative by the Stewart Kings in furtherance of their personal or dynastic aims. Magna Carta, in this way, became a bridge between the older monarchy, limited by the restraints of mediaeval feudalism, and the modern constitutional monarchy, limited by a national law enforced by Parliament.
To the fame gained by Magna Carta in respect of its real and original meaning, must thus be added Edition: We have seen how, in the seventeenth century, it became a means of cloaking innovations in the guise of a return to the past, and how in an age averse from constitutional innovations, it enabled the opponents of the Divine Right of Kings to gain for their policy the approval of staid upholders of the venerated past.
The elasticity of the Great Charter has thus enabled it to adapt itself to the ever-changing needs of succeeding centuries; and each century that enjoyed its powerful aid has heaped upon it, in return, tributes of grateful veneration, and has read into it new principles of which its framers never dreamed.
Its emotional and moral value is perhaps even greater than its strictly legal or constitutional value. All government is, at bottom, founded on public opinion—upon sentiments either of affection and veneration or of fear.
Psychological considerations are often all-powerful in the world of politics and morality. It is no disparagement of Magna Carta, then, to admit that part of its value has been read into it by later generations, and that its power now lies in the halo almost of romance that has collected round it in the course of centuries.
Sentiment counts for much in the most practical affairs of men. The Great Charter is great because in ages long after its framers were dead and forgotten, it became a shield and buckler behind which constitutional liberty could take shelter. Fortified as it had been by the veneration of ages, it became a strongly entrenched position that the enemies of arbitrary government could safely hold. Apart from the salutary effect of many of its original enactments, its moral influence has steadily contributed to an advance in the national spirit and therefore to the more firm founding of the national liberties.
The value of the Great Charter has continually increased in the seven hundred years during which traditions, associations, and aspirations have clustered ever more thickly round it. In the forefront of this long catalogue of virtues, however, there lies the one great cardinal merit of the Charter, which has already been insisted on, namely that it is, in essence, an admission by an anointed king that he was not an absolute ruler; that he had a master in the laws he had often violated but now once more swore to obey; that his prerogative was defined and limited by principles more sacred than the will of kings; and that the community of the realm had the right to compel him, when he refused of his own free will, to comply.
Magna Carta affirmed the doctrine that kings are accountable for their deeds, and thus paved the way for the shifting of the responsibility from the King to his ministers, holding office at the will of a Representative Parliament.
In conclusion, it may not be unprofitable to ask Edition: Here two lines of thought suggest themselves, one connected with our foreign relations and the other with our domestic troubles and reforms. One set of problems lies in the realm of international, and the other of constitutional, law; and both of them turn on the possibility of substituting peaceful methods for brute force in settling acute differences of opinion.
There are two ways, and only two, of reconciling conflicting principles and interests. One is by the method of rational men; the other, of savages and wolves and tigers. The one proceeds by the devising and enforcing of wise laws and the framing of constitutions; the other, by the arbitrament of war. Take the international problem first. More than nineteen centuries have elapsed since the Prince of Peace was born into the world at Bethlehem.
War and the horrors of war should surely be obsolete and impossible in this twentieth Christian century; and yet never has a more widespread, unremitting, or inhuman war been waged than is waged to-day. What hopes, then, remain for the priests of peace?
Must they, with averted faces, renounce all hope of the long-expected time when wars shall cease? The events surrounding Magna Carta would seem to furnish them with a ray of hope, however dim; for, in , the granting of the Charter was the beginning, not the end, of a bitter Civil War; and at that date the possibility of permanently superseding domestic strife by peaceful constitutional methods seemed as remote as the possibility of devising machinery to prevent recurrence of war among rival nations appears to-day.
Yet, in , in spite of the blackest of Edition: A Constitution for England had already in begun to be evolved. Similarly, may it not be possible that in , when everything looks its blackest for the friends of peace, we may not be far from the coming of the dawn?
International law may yet achieve what seems so impossible to-day; just as constitutional law has achieved what seemed equally impossible in The second problem or group of problems, for light on which we turn to the history of Magna Carta, affects the internal policy of Great Britain and the British Empire.
The present generation of Englishmen, like the spendthrift heirs of an industrious father, show a tendency to underestimate the value of that priceless heritage of the British Constitution that has come to them without effort of their own, as a product of the labour and the forethought of the generations that have gone before. Why was it that, even for years before the evil example set by Germany at the commencement of her war against the foundations of civilization, there appeared everywhere signs of a tendency at work to discredit the constitutional heritage to which so many generations of Britons have contributed; of a retrograde Edition: Whatever the reason, the facts are undoubted.
A spirit of lawlessness, discontent, and greed had even before the fateful August of bred a quick impatience of every constitutional barrier that stood in the way of its own immediate gratification.
It had ceased to be remembered that even red-tape, whether of the moral or legal variety, is an excellent thing in its own place. The centre of world-interest will then swing back again from the work of the bayonet and the howitzer to the work of the pen. Then all eyes will centre once more on constitutional problems, of which three at least are likely to occupy the foreground of public attention: The framing of a new, perhaps federal, Constitution for the British Isles; the framing of a new Imperial Constitution to bind the Overseas Dominions more closely to the mother-land; the framing Edition: For that new world, towards whose dawn we are peering through the darkness, yet with stout hope in our hearts, Magna Carta has grave lessons, which it cries aloud with no uncertain voice.
It teaches the value of continuity in all matters of constitutional development. It shows that ground, to be permanently held against the encroachments of the enemy, must be slowly and painfully acquired and carefully entrenched yard by yard against the inevitable counter-attack to be openly delivered, or prepared more insidiously underground. Magna Carta and its historical context proclaim to all idealists who are in haste for quick results, the danger of breaking with the past.
Framers of new schemes of government, whether for the United Kingdom or the Empire, will find sure evidence of the strength given to national institutions by continuity, when they look back on the long, slow, steady growth of the English Constitution through the vicissitudes of the seven hundred years that separate the Conference at Runnymede from the present day. When the happy day has dawned on which Britons meet to celebrate, on bended knee, the restoration of peace to a tortured Europe, they will do well to return thanks also for the free land into which they and their sons were born: That John expected the Pope to release him from his obligation to the Charter upon some ground or other is, I think, reasonably certain.
That the Pope honestly believed that he was acting with competent authority in doing so, is even more clear from the evidence. But no attempt has ever been made, so far as I am aware, to show by an analysis of the evidence upon what basis of legal right the Pope supposed he was resting his Bull of 24 August, , or to subject his right to annul the Charter to a legal criticism. I can hope in this paper to do no more than to make a beginning in that direction.
This relationship is indeed clearly mentioned in the Bull, but it is not emphasized. In the formal phrases of annulling at the close of the Bull, it is the apostolic authority which is put forward, and there is no mention of the feudal relationship. If now we turn from the Bull to the other contemporary evidence, documentary and chronicle, which has come down to us, the information we gain is no more definite, but certain things bearing on the question stand out rather clearly.
The feudal dependency of England upon the papacy was recognized by all parties during the whole period, with the single exception of Philip II of France and his son in their debate with the Pope.
They, however, do not deny the fact of the relationship, but the right of John to enter into it and its legality. Although John calls attention several times to his feudal relation to the Pope, and seems disposed to make what he can of it, he clearly does not trust to it as sufficient.
On 4 March, , he took the cross, thereby gaining the ecclesiastical protection and extensive privileges granted to the crusader, but also securing the interest of the Pope in regard to the plans which Innocent had most deeply at heart. In this new relationship John undoubtedly secured all that he needed, and the skilful use which he could make of it is shown in his letter of 29 May in which he puts the situation in such a light as to make clear to the Pope his inability to take any steps towards the crusade because of the trouble the barons were making.
Not merely did the privileges granted crusaders relieve them from contracts which interfered with the carrying out of their vows, 2 but the popes assumed the right to protect a crusade, and crusaders, from any interference with the undertaking. In his excommunication of the crusaders of the fourth crusade, for their attack on Zara, Innocent based his action wholly on ecclesiastical grounds, and did not allude to the fact that the King Edition: The only clauses which demand extreme concessions from the King I have discussed elsewhere sufficiently, I think, to show that taken all together they would not justify such statements.
If finally we turn to feudal law, as understood either in England or on the Continent, to inquire if, by its principles alone, the Pope would have been justified in annulling the Charter, the answer must be, I think, in the negative. The details of the law which would apply to this case differed in different countries, but the underlying principle was the same everywhere: In applying this principle to the case of Innocent III and John, it must first of all be remembered that John did not hold England by indefinite feudal, or by military tenure, but by a clearly defined money payment only.
Under it the Pope would be in duty bound to protect the King in the possession of his fief against any outside attack or any internal revolution which would deprive him of it, but he could find no ground in feudal law on which he could object to any arrangement entered into by his vassal for its internal management which did not seriously affect his ability to pay the specified annual sum.
If all the financial clauses of the Charter be put together and interpreted as they must have been understood in , the absurdity of supposing that they would justify the annulling of the Charter by the overlord will be apparent. It is upon his ecclesiastical rights that Innocent founded his action and upon them alone. The upper left-hand corner has been destroyed at some time in the past, so that the entire address and portions of diminishing length of the first ten lines have been lost, and a single word and portions of words, as indicated in the text, have been lost elsewhere in the letter.
The lines contain an average of letter and word spaces. The address was probably general to the people of England. Modern historians have mostly not noticed its existence. There is no reference to it in Potthast.
As the letter is highly characteristic of the method in which the papal letters were composed during this conflict, and may be called in some respects a first draft of the Bull of 24 August, it seems worth while to Edition: A comparison of the text with that of the other letters, papal and royal, of the crisis, beginning with that to Eustacede Vesci of 5 November, Rymer, i.
I have referred in the notes by date to some of the more important or interesting cases. It will be noticed that in this letter the Pope says that he has given directions to the archbishop and his suffragans to excommunicate the barons unless within eight days they come to an agreement with the King according to the form which he had earlier recommended to their messengers. The dating of this Bull is admittedly difficult. In Walter of Coventry ii.
It is dated by Potthast No. It may have been contained in a supplementary letter, or have been committed to the messengers to be made known orally, as not quite consonant with the dignity of a formal papal command. It should be noticed that the Bull shows no knowledge of the Charter. I am inclined to believe that it should be dated 18 June, and the meeting at which it was shown the bishops 16 July, though I am not prepared to assert this definitely.
Ita quod si forte non posset inter eos concordia prouenire; in curia sua per pares eorum 9 secundum Regni consuetudines atque leges mota deberet dissensio terminari; Barones ipsi nostro non expec 10 tato responso, postquam idem Rex signum crucis assumpsit in subsidium terre sancte; contempta iustitia quam ipse Rex superhabundanter offerebat eisdem; 1 contra dominum suum arma mouere temeritate nefaria presumpserunt.
Quodque nefandum est et absurdum. Cum autem conuersus deo et ecclesie satisfecit; ipsum impugnare presumunt. Regis et Regni obprobrium et periculum. Cum igitur debeamus et libenter uelimus pacem Regni Anglie procurare. Ne igitur propter quosdam peruersos uniuersitatis sinceritas in Anglia corrumpatur. Uniuersitati uestri per apostolica scripta precipiendo mandamus. Pontificatus nostri Anno Octauodicimo.
An endorsement in a later, but thirteenth-century, hand, possibly not much later than the original, reads: Si quis comitum vel baronum nostrorum, sive aliorum tenencium de nobis in capite per servicium militare, mortuus fuerit, et, cum decesserit, heres suus plene etatis fuerit et relevium debeat, habeat hereditatem suam per antiquum relevium; scilicet heres vel heredes comitis de baronia comitis integra per centum libras; heres vel heredes baronis de baronia integra per centum libras; heres vel heredes militis de feodo militis integro per centum solidos ad plus; et qui minus debuerit minus det secundum antiquam consuetudinem feodorum.
The difficulty presented by these provisions is that no one has been able to give a satisfactory explanation of the difference between the baron and the knight or between the two holdings here specified, when their holders were alike tenants -in-chief by knight service.
For it affects an important development in our constitutional history. That problem is the status and fate of those lesser tenants-in-chief who ceased to attend the Great Council.
There has been, if I may venture to say so, on the part of the commentators on the Charter, too much glossing and too much assumption.
It has been assumed, but not proved, that, in both chapters and for both purposes, the line of division is the same, and it follows, as a consequence of this assumption, that.
Nor is this the only consequence which follows from that assumption. This is no mere verbal quibble: Let me endeavour to make the point absolutely clear. Putting the point differently, the line in chapter 2 which is concerned with reliefs is so drawn as to include the minor barons with greater ones; but in chapter 14 which is concerned with separate summons it is drawn athwart the baronage, and, by excluding the lesser barons, creates so far as summons is concerned a fresh class.
No one, I think, will suspect me of imperfect appreciation where our great historian is concerned, but his work occasionally betrays a certain vagueness of conception, a lack of clearness in definition, which perhaps is sometimes met with in the work of English scholars.
This, I think, was due to the influence upon him of Gneist, to whom we may clearly trace the fundamental error of confusing the line drawn by the Charter cap. Another error traceable to Gneist is the connection of the distinction between greater and lesser barons with two passages in Domesday.
Adams similarly refers to the antiquity of the distinction drawn in chapter 14 of the Charter: It would not, consequently, be met with outside that district, that is to say, in the larger portion of the country.
Cum autem heres masculus et notus heres etatem habens relinquatur, in sua hereditate se tenebit ut supradictum est etiam invito domino, dum tamen domino suo sicut tenetur suum offerat homagium coram probis hominibus et suum rationabile releuium alicujus iuxta consuetudinem regni, de feodo unius militis centum solidos; de socagio vero quantum valet census illius socagii per unum annum; de Baroniis vero nihil certum statutum est, quia iuxta voluntatem et misericordiam domini Regis solent Baronie capitales de releviis suis domino Regi satisfacere.
Idem est de serjanteriis ix. McKechnie 3 and by Prof. Adams 4 who considers him to be right. This, we shall see, appears to be opposed to another chapter of the Charter as well as to the obvious meaning of chapter 2 itself. The reference is obviously to the entry which Madox cites correctly: Otherwise it would be tempting to identify the two, as it would dispose of the difficulty raised by the passage in chapter 2. McKechnie, however, does identify the two, but admits that, on Edition: Speaking of this forty-third chapter, Mr.
It is, however, conceivable that, as Mr. Nor has any evidence, I believe, yet been produced in support of the suggestion. This chapter reaffirms a distinction recognized by Henry II, but ignored by John Magna Carta reaffirmed the distinction. It appears to me that this conclusion is based on the assumption that, because the Charter limits the rights of the Crown, it was John who had attempted to extend these rights.
We have now seen that chapter 2 of the Great Edition: The tenure of his successors, the Chanceus family, proves that it was held by the service of a serjeant for forty days in war, which must not be confused with knight service. The table on the opposite page, however, will illustrate the nature of the sums paid under Henry II. This is an unexpected result, the more so as no relation can be traced between the size of the. Moreover, of these four sums, only two exceed the maximum fixed by the Charter, while one is actually below it.
When we confine our attention to the figures for a single county, the contrast, we shall find, becomes striking. The evidence for Northumberland is of peculiar value for more reasons than one. We have thus a striking illustration of the fact that, as I have insisted, 5 the feudal extortions remedied by the Charter were not, as is so often implied, 6 introduced by John, but are found in full existence under Henry This we learn from the same evidence, namely from their respective returns in For these were similarly held in chief, though each of them owed the service of one knight at most.
It has, at least, now been clearly established that those who made their returns in , although then treated, apparently, as being all on the same footing, were not treated alike in the matter of their reliefs.
It would seem that such a proposition need only be stated to be rejected as absurd. III , which certainly seems to show that, at this date, that proposition was the law. The whole Proceeding, however, seems to shew that a Writ of Summons to Parliament did not then necessarily follow Tenure by Barony; the Committee not having found any Person of the Name of Mara, at any Time summoned to Parliament.
Not having discovered what was done on the Reference of this Petition to the Exchequer, they are unable to give any further Information on the Subject. As this is an unsatisfactory comment on the case, it seems desirable to state the facts. In Peter de la Mare returned himself, under Wilts, as holding Steeple or Market Lavington by the service of two knights. Robertus de la Mare, j feodum in Lavintone. On the other hand, there is a decided case of earlier date — which points in quite a different direction for the legal interpretation, at its date, of the clause about reliefs.
Gower, the South Wales peninsula. He boldly claimed that, in the host, Bramber had only rendered the service of one knight. But it is difficult to understand why these entries should be chosen when on p. Johannes le Cunte tenet iiij feoda In rapo de Brembre Willelmus de Breuse et antecessores ejus tenuerunt rapum de Brembre in capite de domino Rege et antecessoribus ejus ex conquestu Anglie per servicium x militum.
The barons decided, quite rightly, that William should be charged relief for Bramber as for a barony. But far more important for our purpose is their decision as to Gower. Dicta terra de Guher tenetur de rege in Capite per servicium unius feodi militis, de dono et feoffamento Regis Johannis.
In this case the barons seem to have deemed the documentary evidence decisive. The only point that remains doubtful is whether holdings so created Edition: In the case of those who held by the service of a single knight there would seem to have been no question. Some support for the view that a line was drawn as in the case of the De La Mare holding cited above between those who held by the service of more than one knight and those who only held a single fee or less, is afforded by the returns of , 1 in which the sheriffs are directed to make separate returns of these two classes.
Perhaps the most remarkable return for its bearing on chapter 2 in the Great Charter, is that made by the Sheriff of Shropshire in This list suggests several considerations. This question arose in , only ten years after the Great Charter. This singular contrast affords a further illustration of the difficulties and confusion by which this subject is surrounded.
And the ever increasing subdivision of baronies must have accentuated that distinction. Eventually the complications caused by these tenures became very great. In 18 Richard II — Robert de Todenham admitted that he held certain property by the service of the third part of the eighteenth part i. At last we are in a position to arrive at some conclusions with regard to the difficult problem dealt with in this paper.
So, conversely, with the Crown. The Great Charter provided for their case in its forty-third chapter. Perhaps we may divide them into two classes: And there is nothing to show that this evidence could be rebutted. Finally, the keen and frequent discussion as to the amount of relief payable under the second chapter of the Charter strongly confirms the main contention in this paper.
For the line drawn by that chapter could not be left undefined; the question whether a tenure was baronial or not had to be determined before it could be known what was the relief that it was liable to pay. Whether they looked on such attendance as a privilege or—as is more likely at that period—a duty laid upon them, they would have no occasion in practice to raise the question of the line and where it should be drawn.
The future developments of the principle could not then be foreseen. By a curious coincidence the year has been marked, among other striking events, by a revival of the controversy between arbitrary power and the rule of law which, in the midst of heterogeneous particulars, formed the substance of the struggle of The discussion in the course of the elaboration of the Defence of the Realm Act and its amendment has led to extreme pronouncements.
On the one hand, Lord Parmoor appealed to the principle of safeguarding the freedom and right of individuals as expressed in the Great Charter and guaranteed by trial by jury Lord Newton, on the other hand, took this occasion to pronounce in favour of a discretionary procedure untrammelled by lawyers, and declared that sensible persons in this country were not in the least worried about Magna Carta at this moment. We need not follow the details of this curious passage of arms and of the correspondence called forth by it, and may confine ourselves to the remark that if Lord Parmoor was not strictly exact in tracing the trial by jury to Magna Carta, Lord Newton seems to have somewhat rashly discarded the inheritance of legality of which English citizens have been so proud for ages.
Turning to the historical problem fringed by these modern polemics one may say that the predominant strain in the analysis of the Great Charter by modern scholars may be characterized as a sceptical reaction against the great constitutional claims made for Magna Carta since the days of Coke.
Pike, and others have followed on the same lines with great effect. They have taken pains to prove that the barons who forced the Charter on John Lackland were guided by class interests and aimed at reaction and anarchy rather than at legality and progress. The feudal framework of their scheme is sufficiently clear and has been described very fully by G.
There can be no doubt also that Coke, Blackstone, and Thomson were guilty of many anachronisms in their attempts to trace legal conceptions of a later age into these feudal beginnings, and that even Stubbs rather exaggerated the sentimental and institutional importance of the principles embodied in Magna Carta. And yet there is room for doubt whether the general effect of the modern criticism to which the text of the Great Charter was subjected has been altogether conducive to the proper treatment of the subject.
Granted that the Charter has been prompted by the selfish considerations of the barons, and bears in every line the impress of their special aims, it remains to be explained why it obtained such a hold on national life, why it was re-enacted and remanipulated in the course of several generations, why it became the watchword of English legalism, why it was accepted and developed by those very royal judges against whose encroachments its provisions were to a large extent directed.
We cannot wonder Magna Carta was partially eclipsed by the arbitrary rule of the Tudors, but right through Edition: Clause 39 which I have selected for particular examination stands, as it were, in the centre of the Magna Carta controversy, and is well adapted for an illustration of its characteristic features. So much learning and ingenuity has been expended on the interpretation of this text that I can dismiss in a few words a number of more or less important points which seem to me to have been definitely settled by scholars.
Nor is it necessary to dwell at length on the meaning of outlawry, disseisin, or destruction. But several points remain worth discussion even when we have taken careful stock of the results achieved by the interpreters. Such an interpretation, far from being self-evident in the beginning of the thirteenth century, cuts right through the difficulties arising out of two firmly established views; namely, against the frequent combinations of free birth with unfree tenure, of which the simplest case is presented by the freemen holding in villainage, 1 and against the doctrine that Edition: This arrangement was merely the expression of the fact that in criminal and police matters the villain was on the level of the free.
It has been argued that the barons did not intend to bestow any of the guarantees of clause 39 on people who did not belong to their order, that is who were not tenants-in-chief. The fact that clause 34 applied only to barons holding courts of their own did not militate in the slightest degree against such an interpretation.
Clause 34 merely Edition: The fall of the stone into the lake calls forth automatically wider and wider circles on the surface. That this is no mere speculation of ours may be proved by textual evidence. In a statute of 28 Edw. In an earlier instance, namely, in a statute of 5 Edw.
I entirely agree with Prof. Adams that the only sense in which these words can be construed is that of an assertion of legality.
At the same time the slight variations of phraseology enable us to supplement to some extent the barrenness of the central statement in Magna Carta, clause It would be inadvisable for us to dissent from this Edition: The struggle was waged to secure trial in properly constituted courts of justice and in accordance with established law.
The latter requirement would apply equally to substantive rules as far as they existed, and to procedure; it was in fact a declaration in favour of legality all round. Here again, as in the case of the free man , the formulation was elastic enough to stand carrying over from the class justice of feudal lords to the common law of the growing Commonwealth. The omission of these words in the text of the Charter is hardly accidental. One of the objects of this curtailment may have been the wish to extend the application of the clause relating to peers to the courts of the barons themselves on the principle indicated by clause But there is yet another connection in which the barons had an interest in avoiding a direct mention of the Curia Regis.
They wanted to make clear that they would not recognize as legal judgments not delivered by the peers of the accused. In this they followed the feudal doctrine cf. From this point of view Pierre des Roches in contested the very existence of peers in England. In this sense the justices derived their office not only from the sovereign, but also from the circle of peers. This step was not only actually made both in England and in France, but it was justified in both cases on similar grounds.
In both cases stress is laid on the subordinate character of a decision given by a single judge. His action is important for practical Edition: In all doubtful cases, however, the single judge ought to revert to the fountainhead of his authority, that is to the Curia. The expressions used by Bracton are exceedingly characteristic: By the Magna Curia may be meant either a sitting of the full Curia Regis or the High Court of Parliament, a body of rather uncertain composition in the thirteenth century.
It cannot be said that this process of transformation took place without opposition and misunderstandings, or that it followed a perfectly straight course. It is well known how the higher baronage obtained a strict recognition of its position as a group of peers of the Realm.
A corollary to that purely feudal view appears in the claim of privileged exemption from trying the causes of lower people. It is also interesting to note that sometimes attempts were made to establish further gradations within the peerage, e. The process affecting the free population below the exalted ranks of the peerage is more interesting.
Here also we find an occasional attempt to establish group divisions. A Yorkshire knight seeks and obtains from an itinerant justice to be tried by fellow-knights instead of a jury of freemen selected without distinction of rank.
But, as we know, such an exclusive point of view did not prevail as to the composition of juries, both grand and petty. Anyway, even when knights are selected for the recognition, it is evident that they do not belong to a circle of peers of the accused in any other sense but that of being his equals in rank. They do not constitute in themselves an ordinary Court of Peers to which the accused man would eventually be a suitor. Altogether the report of the trial looks like a standard case selected for the purpose of illustrating all sorts of dodges, countermoves, and exceptions which might be resorted to by an accused person.
There can be no doubt that in this way a criminal petty jury was taking the place of a batch of peers, and though we have no similar means of exact identification in other instances, the mere reading of Crown trials in such collections as that of the Select Pleas of the Crown, the Crown Pleas of the County of Gloucester, and the Notebook of Bracton, affords ample corroborative evidence of the treatment of criminal cases on those lines.
All cases of felony in these volumes are tried and decided in Royal Courts either by appeals or by recognitions of juries. The question arises, is the treatment of the recognition as a judgment the result of mere confusion and looseness of terminology, 1 or has it been brought about by the deliberate overriding of the Magna Carta provision by royal justices?
Neither the one nor the other solution is likely to commend itself to modern students. In order to understand the process of substitution by which the jury was put in the place of the circle of feudal peers, we have to attend, as it seems to me, not only to the existence and rapid increase of small freemen who had no standing as vassals, but also to the popular conception of a public court in thirteenth century England.
The opposition between judgment and verdict developed only gradually in consequence of the growth of the jury system, and although, as has been convincingly shown by H. Brunner, the trial by jury was in truth the outcome of inquests held by professional judges under the authority of the King, yet in the popular mind there lingered the notion that jurors were delegates of a body of doomsmen. This is assumed in the Yorkshire case under discussion, but it is also indicated by the frequent substitution of an award by jurymen for the doom or judgment of a popular court.
One of the earliest extant records of a post—conquestual plea—the account of a suit in which Bishop Odo of Bayeux ultimately got the best of it against his opponent 1 contains the notice that sworn representatives of a county were substituted for the full court of the county. It could certainly not be denied that a suitor of the county acting as an assessor of its courts was able to exercise judicial functions by the side of the sheriff or of the royal justice who presided in the court.
It has been currently held to be the germ of the Habeas Corpus doctrine, and there is a good deal of truth in this view although it certainly does not comprise the whole truth. The narrow class basis on which the rule was originally drawn up need not be insisted on—it is the initial assumption from which further analysis has to start. What I should like to emphasize is the fact that right through the Middle Ages the rule was recognized by the judges and became one of the fundamental principles, not of the law of peerage but of the Common Law.
It was reasserted again and again by various Parliaments 1 Edition: It must be conceded, at the same time, that there was a powerful doctrine which ran counter to a consistent application of clause 39 of Magna Carta, namely, the exceptional power assigned to the King in virtue of his prerogative as sovereign ruler of the Commonwealth Thomas of Lancaster was condemned to death without trial because Edward II had personally recorded the notorious fact of his treason.
The personal command of the King is often recognized by judges to outweigh purely legal considerations. In the procedure of replevin as applied to accused persons, it was taken for granted that an arbitrary arrest might be justified by the personal order of the King. This point may be illustrated, e. The Sheriff of Cambridgeshire is ordered to replevin a certain Edition: How is one to reconcile these conflicting tendencies?
They cannot be reconciled by logical construction: But as one might say of the English Justinian, Edward I, that he was eminent as a powerful ruler and at the same time as a most efficient promoter of legal order, 2 so it may be said of the judges who shaped the Common Law, that they were fully alive to the necessity of a rule of law, and regarded the modifying interference of the prerogative as an exceptional agency which ought not to affect the general administration of justice.
In his recent treatise upon the origin of the English Constitution Prof. Adams has pushed to its logical conclusion what may be called the baronial tendency in current interpretations of the thirty-ninth clause of the Great Charter.
The barons, he suggests, were thinking almost entirely, if not entirely, of themselves. As I understand this view, the barons desired to place themselves beyond the scope of the judicial system elaborated in the reign of Henry II and Richard I. They were thinking of such trials as those of William of Saint-Calais and St. This view is clear and intelligible.
It is a good starting-point. Without traversing the whole field of Edition: We can all agree that the barons were thinking mainly of their own safety and were not thinking directly of trial by jury, 1 but if we accept the Edwardian view, we cannot hold that the Charter is simply the programme of a pack of feudal reactionaries.
The inquiry involves two separate but related questions. In the next place, ought we to limit the Edition: If the barons were not thinking of the ordinary freeman, they may none the less have been thinking of more than one judicial method. If they did include the ordinary freeman in their demand, they would naturally allow a variety of procedure. These letters, addressed a month before the date of the Charter, read as follows: It does not appear, however, that the King is promising a trial by peers in his court as a remedy in all cases.
One would expect the King to mean that, without stating exactly the scope of the law of the realm, he would observe it: The practice of the time and the general meaning of the words used strengthen the probability of this interpretation.
But a judgment of peers was not the only legal way. During the sharp quarrel in between King John and William the Marshal, the Marshal offered to defend his fidelity against the most valiant man in the kingdom. I want the judgment of my barons.
It implied a particular kind of court, a court of doomsmen. The judgment must be delivered on behalf of a company of men who were of the same race or nationality or status as that of the accused or party. It involved the equitable principle which underlay the recognition and the Edition: The Jews in England claimed the judgment of their peers, but they objected to a mixed jury of recognitors.
The proceedings before the justices on eyre did not, I think, involve this kind of judgment. After the conquest of Normandy, King Philip Augustus took the trial of ducal pleas in the bailliwicks out of the hands of justices and gave it to local men.
Par per parem iudicari debet. In England this was not necessarily the case. I have pointed out that even a great baron accused of default did not regard the judgment of his peers as the most natural or obvious way of meeting the charge. There is the same insistence upon protection, the same concern for the observance of law, and also the same hesitation or indifference about the actual constitution of the court.
The King acknowledges that he has disregarded the forms of law, it may be in his Edition: Redress is given by the magnates of the realm, if the case is of great importance, or by a judge in the royal following. One such case concerned a great Yorkshire house. Eustace had offered large sums for a judgment, and in , at Wallingford, on the octave of Trinity 25 June , his claim was heard by William Ralegh. Eustace de Stuteville seems to have come to an arrangement with Hugh Wake, one of his rivals, 1 and was clearly doubtful of his claim.
A thousand pounds was a large sum. Yet a royal admission of error in the royal court was perhaps worth the money. The decrees of outlawry declared by King Henry against the great Hubert de Burgh and also against Gilbert Basset and other companions of Richard, Earl Marshal, were annulled by a judgment of their peers, declared by the mouth of the same William Ralegh who decided the Cottingham case.
The King, says the record, 2 desired to show justice, and on 23 May, , called together all the magnates then present in his court at Gloucester, including Edmund, Archbishop of Canterbury, bishops, earls, Edition: One would expect, therefore, a deliverance by the court at Gloucester on the question as to whether a baron could be outlawed without a judgment of his peers.
But the judgment contains nothing of the kind. The decree against Hubert de Burgh was annulled on the ground that escape from prison was not in itself punishable by outlawry. Bracton, as Maitland points out, probably had this judgment in mind when he stated f. I have suggested that the barons did not claim a judgment of peers as an essential and universal remedy even for themselves. Their words do not imply this claim, and actual practice did not enforce it.
That was either an alternative or a last resort, a solution of a judicial or political deadlock. Students of the Charter have felt that a claim to the judgment of his peers by the ordinary freeman was either unnecessary or absurd. They have urged also Edition: First, let us look at the use of the words in the Charter.
The freeman appears six times. If we set aside the thirty-fourth and thirty-ninth clauses for the moment, the Charter clearly safeguards the ordinary freeman; limits are set to the power of his lord; local officials are to respect his freedom; judges are to permit his neighbours to amerce him fairly; his relatives are not to suffer when he commits that last sin of intestacy. In two of these clauses the ordinary freeman is explicitly distinguished from the baron; in the twenty-seventh and thirtieth he is primarily intended.
Recent exponents of the Charter have not, I think, allowed sufficient weight to the fact that the document Edition: Archbishop Langton and several of the barons on each side were not likely to overlook the growing significance of the freeman in English society, or the danger which the community of the realm would run if his economic and legal position were not protected.
By the close of the twelfth century the freeholder was an important element in every feudal State of civilized Europe. In most countries it is probable that he did little more than represent a general economic tendency towards fixed services and money rents; and that affranchisement was a privilege of more or less sentimental value, not affecting the actual position of a serf. On the one hand, enfranchised villeins Edition: The contest between the principles of order and liberty had already begun.
The natural instrument of order was the prison. The great inquiry of did not meet the situation: Hence in knights were appointed to deal with crime. A sworn obligation was imposed upon all males of fifteen years and upwards. The presentments were received by special commissioners, and the imprisonment of those presented followed as a matter of course: The trustworthy men were not the jury of presentment: It is probable that the ordinary methods of attaching and trying criminals had broken down; they Edition: In all this process imprisonment was merely an incidental affair; it was not yet a common form of punishment after conviction, and only gradually became so general as a form of detention as to necessitate commissions of gaol delivery.
The distinction between the normal procedure and the drastic action taken by Hubert Walter in was to be of the greatest importance in future history. Was it realized at the time? At first sight the answer seems to be decidedly in the negative. It is not likely that any opposition was made to the particular edict of ; the royal duty of good government included the maintenance of the public peace. These malefactors were persons of ill fame and were arrested after sworn inquiry among their neighbours.
Whether they were tried or not in the future would be a matter of general indifference and could be left to the royal discretion. Yet I believe that, even at the close of the twelfth century, the desire to emphasize the extra-ordinary nature of this reserved power was both felt and expressed.
This desire is expressed, I think, in the thirty-ninth clause of the Great Charter. The Charter did not succeed in abolishing the prerogative Edition: It is clear that Henry II anticipated the action of Hubert Walter, probably with much less formality. She sent commissioners through England to liberate prisoners.
The orders given to these commissioners carefully distinguished various kinds of persons who were in gaol. Offenders against the forest law 1 were to be set free and pardoned.
Various other classes who had been subject to legal process were also enumerated; they were in most cases to be released under conditions. But one group was, like the offenders against forest law, to be freed unconditionally: However salutary this direct intervention may have been, it was felt to be anomalous; in order to show that a new reign had begun the Queen Mother declared an act of grace.
The critics of William Longchamp admitted the right of the King to disseise a vassal of his property without a rigid observance of the new procedure; but as a rule the lawful customs and assizes of the kingdom must be observed: Two points are noticeable in this passage.
The free tenant, who is distinguished from the baron and vavassor, was explicitly included; and protection was particularly desired from the royal officials. The demand was extended in , to protection against the King, and was defined still more clearly in , in a passage which recalls the wording of this treaty: Disseisin was more easily dealt with than imprisonment. Among other things, the modern concept of everyone being answerable to the law is premised on a concept of inherent natural right, and not on a concept of a subjective promise made by a given king.
Nevertheless, what commentators like Breay and Harrison probably mean to suggest is that the Magna Carta does in fact contain, at least in embryonic form, the first stirrings of the democratic sensibility within Great Britain and the first limitations on the ethos of royal absolutism. In retrospect, the Magna Carta has been widely hailed by many as a highly liberatory document. This is particularly the case within the United States.
Turner, for example, has suggested:. As the Great Charter's relevance receded in eighteenth- and nineteenth-century England, it remained fundamental for the new nation growing in North America. Today, Magna Carta would seem to enjoy greater prestige in the United States than in the United Kingdom" paragraph There is, of course, some irony inherent in this state of affairs.
It is easy to see why this may be the case. Here, for example, is part of the opening passage of the Declaration of Independence:. We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain inalienable rights, that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.
If the Magna Carta is interpreted in terms of the basic doctrine that even the king is answerable to the law, then it is easy to find a genealogical link between the Magna Carta on the one hand and the Declaration of Independence on the other: Likewise, it would also be easy to trace a connection between the Bill of Rights and provisions within the Magna Carta that stated that all people have a right to a fair trial, and that the king cannot just put someone in jail on the basis of his own whim.
Nevertheless, the important point must be born in mind that ideologically speaking, the Magna Carta and the American documents mentioned above are worlds apart. As famed revolutionary philosopher John Locke and supporter of divine sovereignty pointed out, the Magna Carta implied that the king was making a concession, out of his own free will and in response to political circumstance, and not because of any kind of compelling metaphysical necessity.
The Declaration of Independence, on the other hand, makes it clear that such rights were never the King's to give in the first place, and that those rights immediately and inalienable belonged to the people simply by virtue of them being the people. In other words, whereas the Magna Carta is a pragmatic legal document, the Declaration of Independence is an actual ideological manifesto.
This leads us to a consideration of the potential distortions that can be introduced into the interpretation of such documents over the course of time. Some commentators have suggested that the significance of the Magna Carta has been overrated; and the actual text of the document would seem to warrant such a conclusion.
As The Economist has suggested:. There was not much reason, at the time, to suspect that the document would make history. It was not a revolutionary idea for the king to issue a charter promising to play by certain rules.
Henry I, William the Conqueror's son, had published the Charter of Liberties when he came to the throne in , to persuade the barons that he would behave more reasonably than his horrible brother William Rufus had done. In other words, at the time, the Magna Carta could not have been seen as setting any kind of unusual precedent.
And again, much of the document is quite obsolete from the perspective of present-day study. The reason that the document has gained historical fame is that it contained the germs of certain principles of modern democracy.
The important point here, though, is that the document did not in fact intentionally mean to contain them. In this context, the suggestion can perhaps be made that the significance of the Magna Carta is perhaps more of a myth than it is literal. The main idea is that a long time ago, a group of people even though they were aristocrats and not common folk managed to combine their power in order to force to king that even he was answerable to the law of the land.
This is true, in a way, although it neglects all historical and political context, as well as the fact this is not quite the interpretation that the contemporary people of thirteenth-century England themselves would have given the event.
The Magna Carta primarily became famous, then, due to the resonances, it sparked within the imaginations of later democratic political thinkers, and not on the basis of the actual text itself or its immediate pragmatic effects.
However, perhaps this is just as legitimate a reason as any for a text to become famous, insofar as democracy itself is nothing other than a project of the collective imagination. In summary, the present essay has discussed the Magna Carta in some depth. A key point that has been made here is that the actual historical and political record suggests that the document was not considered anywhere near as revolutionary in contemporary times as it later came to be seen.
At the time, it was simply a peace treaty issued by a king in trouble, as a pragmatic tactic to keep hold of his own power; it was not meant as an ideological declaration of the rights of man. However, when the time came later for people, especially in the United States, to actually make an ideological declaration of the rights of man, they found inspiration and precedent in certain aspects of the Magna Carta.
There is nothing wrong with this, and perhaps the Magna Carta itself should feel honored for having been able to serve this purpose. Breay, Clair, and Julian Harrison. Ultius Blog, 30 May. Click here for more help with MLA citations. A Historical Essay on the Magna Carta. Click here for more help with APA citations.
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Magna Carta essays In the year , the Magna Carta, one of the most important documents in history was signed by King John of England. The Magna Carta proclaims rights that have become a part of English law and are now the foundation of the Constitution of every English-speaking nation.
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The Magna Carta: Text Analysis Essay Words | 6 Pages. The Magna Carta: Text analysis. The Magna Carta, also known as The Great Charter, is a compendium of 63 charters firstly written in Latin by Stephen Langton the archbishop of Canterbury. He was the representative of all the Barons who acted as a group. Magna Carta Essay Rebellious barons required that King John of England approve the Magna Carta (Latin for “the Great Charter”) in Many consider the document to be the foundation of English constitutional government and individual liberties.
The Magna Carta is widely considered to be one of the most important documents of all time, and is seen as being fundamental to how law and justice is viewed in countries all over the world. Prior to the Magna Carta being created there was no standing limit on royal authority in England. The Magna Carta was a legal document signed in Great Britain in the year This sample history essay explores the Magna Carta, its context, and its legacy in greater depth. The essay will be structured into four parts.