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Perhaps the most surprising phase of Thirteenth Century history is
that much of what is most valued and most valuable in our modern laws,
especially as they concern the fundamental rights of man, is to be
found clearly expressed in the great lawmaking of the Thirteenth
Century. It can scarcely fail to astonish those who look upon the
Middle Ages as hopelessly barren in progress, to find that human
liberty in its development reached such a pass before the end of the
Middle Ages, or that any period so long before the Renaissance and
the reformation so-called, could be picked out as representing a
distinctive epoch in supremely liberal legislation. After careful
study, the surprise is apt to be rather that there should have been
comparatively so little advance since that time, seeing how much the
generations of this marvelous century were able to accomplish in
definitely formulating principles of human rights.
The first great document in the laws of the Thirteenth Century is,
of course, Magna Charta, signed in 1215, the foundation of all
the liberties of English speaking people ever since. Perhaps the
highest possible tribute to the Great Charter is the fact that it has
grown in the estimation of intelligent men, rather than lost
significance. In quite recent years it has become somewhat the custom
to belittle its import and its influence. But it must not be forgotten
that over and over again in times of national crises in England,
Magna Charta has been confidently appealed to as a fundamental law too
sacred to be altered, as a talisman containing some magic spell capable
of averting national calamity. Bishop Stubbs said of it, that "the
Great Charter was the first supreme act of the nation after it had
realized its own identity."
Perhaps in nothing does its supremacy as basic legislation for national
purposes so shine forth, as from the fact that it is not a vague
statement of great principles, not a mere declaration of human rights,
not a documentary rehearsal of fundamental legalities, but a carefully
collected series of practical declarations for the solution of the
problems that were then disturbing the peace of the kingdom, and
leading to charge and countercharge of infringement of right on the part
of the king and his subjects. As might have been expected from the men
of the Thirteenth Century -- from the generations who more than any
other in all human history succeeded in uniting the useful with the
beautiful in everything from the decoration of their churches and other
great architectural structures to the ordinary objects of everyday life
-- it was of eminently practical character. While it is the custom
to talk much of Magna Charta and to praise its wonderful influence
there are very few people who have ever actually read its provisions.
The classics are said to be books that everyone praises but no one
reads, and Magna Charta and the Constitution of the United States
are documents that are joined in the same fate. A little consideration
of some of the chapters of the Charter will give an excellent idea of
its thoroughly straightforward practicalness, though it may serve also
to undeceive those who would expect to find in this primal document a
lofty statement of abstract human rights, such as the men of the
Thirteenth Century were never conscious of, since their thoughts were
always in the concrete and their efforts were bent to the solution of
the problems lying just before them, and not to the lifting of all the
burdens that human nature has to bear.
Before this, of course, there had been some development of
legislation to furnish the basis for what was to come in the Thirteenth
Century. The famous Constitutions of Clarendon under Henry II.
and the Assizes of Clarendon (quite a different matter) and of
North Hampton and the Forest under Henry II., gave assurances of
rights that had only existed somewhat shadily before. According to the
Constitutions of Clarendon sworn men gave their verdict in cases from
their own knowledge. This was, of course, quite a different matter
from the giving of a verdict from knowledge obtained through witnesses
at a trial, but the germ of the jury trial can be seen. It was not,
however, until the next reign that the men of England did not merely
wait for the free gifts of legal rights but demanded and obtained them.
There was a new hitherto undreamt-of spirit abroad in the Thirteenth
Century, by which men dared to ask for the rights they considered
should be theirs.
The opening chapter of Magna Charta states especially the subjects of
the rights that are guaranteed by the document. It is not surprising
then to find that the first subject is the Church and that the most
extensive guarantees are made that the English Church liberties shall
be inviolate. Churchmen had been largely concerned in the movement
which secured the signing of Magna Charta, and then after all, as
must never be forgotten, the Church at this time was distinctly felt
by all to be the spiritual expression of the religious aspirations of
the people. Over the concluding sentence of this chapter, "the grant
of the unwritten liberties to all freemen of our kingdom," there has
been no little discussion. There are some who would consider that it
applied to all Englishmen above the condition of villeins or serfs,
while there are others who would limit its application practically to
those nobly born in the kingdom. Posterity undoubtedly came to
translate it in the broader sense, so that, whatever the original
intention, the phrase became as a grant eventually to all free
Englishmen.
CHAPTER I.: "In the first place we have granted to God,
and by this our present charter confirmed for us and our heirs for
ever, that the English Church shall be free, and shall have her
rights entire, and her liberties inviolate; and we will that it be
thus observed; which is apparent from this that the freedom of
elections, which is reckoned most important and very essential to the
English Church, we of our pure and unconstrained will, did grant,
and by our charter confirm and did obtain the ratification of the same
from our lord, Pope Innocent III. before the quarrel arose
between us and our barons, and this we will observe, and our will is
that it be observed in good faith by our heirs for ever. We have also
granted to all freemen of our kingdom, for us and for our heirs for
ever, all the underwritten liberties, to be had and held by them and
their heirs, of us and our heirs for ever."
Perhaps the most interesting feature of Magna Charta is to be found
in the fact, that it did actually in most cases come to be applied ever
so much wider than had apparently been the original intention. It was
in this sense a vital document as it were, since it had within itself
the power of developing so as to suit the varying circumstances for
which recourse was had to it. There is no doubt at all of the good
faith of the men who appealed to it, nor of their firm persuasion that
the document actually intended what they claimed to find in it. Modern
criticism has succeeded in stripping from the original expressions many
of the added meanings that posterity attached to them, but in so doing
has really not lessened the estimation in which Magna Charta must be
held.
The position is indeed noteworthily analagons to that of the original
deposit of faith and the development of doctrine which has taken place.
Higher criticism has done much to show how little of certain modern
ideas was apparently contained explicitly in the original formulas of
Christian faith, and yet by so doing has not lessened our beliefs,
but has rather tended to make us realize the vitality of the original
Christian tenets. As everything living in God's creation, they
have developed by a principle implanted within them to suit the
evolutionary conditions of man's intelligence and the developing
problems that they were supposed to offer solutions for. The
comparison, of course, like all comparisons, must walk a little
lame, since after all Magna Charta is a human document, and yet the
very fact that it should have presented itself under so many varying
conditions, ever with new significance to succeeding generations of
thinking men, is the best evidence of how nearly man's work at its
best may approach that of the Creator. It is an exemplification, in
a word, of the creative genius of the century, a worthy compeer of the
other accomplishments which have proved so enduring and so capable of
making their influence felt even upon distant generations.
It is of the very essence of the practicality of Magna Charta that
among the early chapters of the important document -- Chapter
VII. -- is one that concerns widows and their property rights
immediately after the death of their husbands. Previous chapters had
discussed questions of guardianship and inheritance, since it was
especially minors who in this rude period were likely to suffer from the
injustice of the crown, of their over-lords in the nobility, and even
from their guardians. While Magna Charta, then, begins with the
principles for the regulation of matters of property as regards
children, it proceeds at once to the next class most liable to
injustice because of their inability to properly defend themselves by
force of arms -- the widows.
CHAPTER VII.: "A widow, after the death of her husband,
shall forthwith and without difficulty have her marriage portion and
inheritance; nor shall she give anything for her dower or for her
marriage portion, or for the inheritance which she and her husband held
on the day of the death of that husband; and she may remain in the
house of her husband for forty days after his death, within which time
her dower shall be assigned to her."
CHAPTER VIII.: "Let no widow be compelled to marry, so
long as she prefers to live without a husband; provided always that she
gives security not to marry without our consent, if she holds of us,
or without the consent of the lord of whom she holds, if she holds of
another."
The first of these provisions serves to show very well how early in the
history of English jurisprudence a thoroughgoing respect for woman's
legal rights began to have a place. The beginning Thirteenth Century
made an excellent start in their favor. For some reason the movement
for justice thus initiated did not continue, but suffered a sad
interruption down almost to our own times.
The second of these provisions for widows, embodied in Chapter
VIII., sounds a little queer to the modern ear. This protection
of widows from compulsion to marry is apt to seem absolutely unnecessary
in these modern days. Some of the unmarried are indeed prone to
think, perhaps, that widows have more than their due opportunity in
this matter without any necessity for protecting them from compulsion.
Of course it is to be understood that it was not always so much the
charms of the lady herself that must be protected from compulsion, as
those of the property which she inherited and the political and martial
influence that she might be expected to bring her husband. In these
troublous times when disputes with appeals to arms were extremely
frequent, it was important to have the regulation, that after the
death of a husband there should be no sudden unbalancing of political
power because of the compelled marriage of the widow of some powerful
noble.
In certain subsequent chapters up to the twelfth there is question
mainly of the rights of the Jews, as money-lenders, to collect their
debts with interest after the death of the principal to whom it was
loaned. For instance, according to Chapter X., the debt shall not
bear interest while the heir is under age and if the debt fell to the
hands of the crown, nothing but the principal was to be taken. In
Chapter XI. if any one died indebted to the Jews his wife should
have her dower and pay nothing of that debt. For children under age
the same principle held and they had a right to the provision of
necessaries in keeping with the condition of their father. This last
clause has been perpetuated in the practice of our courts, as some
consider even to the extent of an abuse, so that debtors cannot collect
from the income of a young man to whom money has been left, if by so
doing the income should be impaired to such an extent as to make his
method of living unsuitable to the condition in life to which he was
born and brought up.
Chapter XII. has been the subject of more discussion perhaps than
any other. McKechnie, the most recent commentator on Magna
Charta, says of it:[27]
"This is a famous clause, greatly valued at the time it was framed
because of its precise terms and narrow scope (which made evasion
difficult), and even more highly valued in after days for exactly
opposite reasons. It came indeed to be interpreted in a broad general
sense by enthusiasts who, with the fully-developed British
constitution before them, read the clause as enunciating the modern
doctrine that the Crown can impose no financial burden whatsoever on
the people without consent of Parliament."
Readers may judge for themselves from the tenor of the chapter, how
wide a latitude in interpretation it not only permits, but invites.
CHAPTER XII.: "No scutage nor aid shall be imposed in our
kingdom, unless by common counsel of our kingdom, except for ransoming
our person, for making our eldest son a knight, and for once marrying
our eldest daughter; and for these there shall not be levied more than
a reasonable aid. In like manner it shall be done concerning aids from
the citizens of London."
There is no doubt that it is hard to read in this chapter all that has
been found in it by enthusiastic appellants to Magna Charta at many
times during the succeeding centuries. As a matter of fact, however,
within half a century after it had been promulgated, it was appealed to
confidently as one of the reasons why an English Parliament should
meet if the King required special levies of money for the purpose of
carrying on war. It was during the sixth and seventh decades of the
Thirteenth Century that the great principle of English Legislation:
"There shall be no taxation without representation" -- which six
centuries later was to be appealed to by the American Colonies as the
justification for their war for independence. gradually came to be
considered as a fundamental principle of the relationship between the
government and the people. That it had its origin in Magna Charta
there seems no doubt, and it is only another example of that
unconscious development of a vital principle which, as we know from
History, took place so often with regard to chapters of the Great
Charter.
Undoubtedly one of the most important chapters of Magna Charta is the
very brief one, No. 17, which concerns itself with the holding of
a Court of Common Pleas. The whole of the chapter is, "Common
Pleas shall not follow our Court but shall be held in some fixed
place." This represented a distinct step in advance in the dispensing
of justice. It is a little bit hard for us to understand, but all
departments of government were originally centered in the king and his
household -- the court -- which attended to royal and national
business of every kind. As pointed out by Mr. McKechnie in his
Magna Charta, the court united in itself the functions of the modern
cabinet of the administrative department -- the home office, the
foreign office and the admiralty, and of the various legal tribunals.
It was the parent of the Court at St. James and the courts at
Westminster. Almost needless to say, it is from the fact that the
dispensing of justice was a function of royalty, that the places of
holding trials are still called courts.
According to this chapter of Magna Charta, thereafter ordinary
trials, Common Pleas, did not have to follow the Court, that is
the royal household, in its wanderings through various parts of the
kingdom, but they were held at an appointed place. In the days of
Henry II. the entire machinery of royal justice had to follow the
monarch as he passed, sometimes on the mere impulse of the moment,
from one of his favorite hunting-seats to another. Crowds thronged
after him in hot pursuit, since it was difficult to transact business
of moment before the court without being actually present. This
entailed almost intolerable delay, extreme annoyance and great expense
upon litigants, who brought their pleas for the king's decision.
There is an account of the hardships which this system inflicted upon
suitors told of one celebrated case. Richard D'Anesty gives a
graphic record of his journeyings in search of justice throughout a
period of five years, during which he visited in the king's wake most
parts of England, Normandy. Aquitaine, and Anjou. Ultimately
successful he paid dearly for his legal triumph. He had to borrow at a
ruinous rate of interest in order to meet his enormous expenses, mostly
for traveling, and was scarcely able to discharge his debts.
All litigation then, that did not directly involve the crown or
criminal procedures, could be tried thereafter by a set of judges who
sat permanently in some fixed spot, which though not named was probably
intended from the beginning to be Westminster. Hence it has been said
by distinguished English jurists that Magna Charta gave England a
Capital. On the other hand Chapter XXIV. insured justice in
criminal cases by reserving these pleas to judges appointed by the
crown. This short chapter reads: "No sheriff, constable,
coroner, or others of our bailiffs shall hold pleas of our Crown."
This last expression did not necessarily mean matters concerned with
royal business, as might be thought, but had in King John's time
come to signify criminal trials of all kinds. It is easy to understand
that those accused of crime would look confidently for justice to the
representative of the central government, while they dreaded the
jurisdiction of the less responsible officials resident in the
counties, who had a wide-spread reputation for cruelty and
oppression, and for a venality that it was hard to suppress.
It would seem as though these quotations would serve to make even the
casual reader appreciate how thoroughly Magna Charta deserves the
reputation which it has borne now for nearly seven centuries, of an
extremely valuable fundamental document in the history of the liberties
of the English speaking people. Some of the subsequent chapters may
be quoted without comment because they show with what careful attention
to detail the rights of the people were guaranteed by the Charter, and
how many apparently trivial things were considered worthy of mention.
We may call attention to the fact that in Chapters forty-one and
forty-two there are definite expressions of guarantee for the rights
even of aliens, which represent a great advance over the feelings in
this respect that had animated the people of a century or so before,
and foreshadow the development of that international comity which is
only now coming to be the distinguishing mark of our modern
civilization.
"A freeman shall not be amerced for a small offence, except in
accordance with the degree of the offence; and for a grave offence he
shall be amerced in accordance with the gravity of his offence, yet
saving always his 'contentment'; and a merchant in the same way,
saving his wares; and a villein shall be amerced in the same way,
saving his wainage -- if they have fallen into our mercy; and none of
the aforesaid amercements shall be imposed except by the oath of honest
men of the neighborhood.
"If any freeman shall die intestate, his chattels shall be
distributed by the hands of the nearest kinsfolk and friends, under the
supervision of the church, saving to everyone the debts which the
deceased owed to him.
"No constable or other bailiff of ours shall take corn or other
provisions from anyone without immediately tendering money therefor,
unless he can have postponement thereof by permission of the seller.
"No sheriff or bailiff of ours, or any other person shall take the
horses or carts of any freeman for transport duty, against the will of
the said freeman.
"All kydells for the future shall be removed altogether from the
Thames and Medway, and throughout all England, except upon the sea
coast.
"Nothing in the future shall be taken or given for a writ of
inquisition of life or limbs, but freely it shall be granted, and
never denied.
"No bailiff for the future shall put any man to his 'law' upon his
own mere word of mouth, without credible witnesses brought for this
purpose.
"No freeman shall be arrested or detained in prison, or deprived of
his freehold, or outlawed, or banished, or in any way molested, and
we will not set forth against him, nor send against him, unless by the
lawful judgment of his peers and by the law of the land.
"To no one will we sell, to no one will we refuse or delay, right or
justice.
"All merchants shall have safe and secure exit from England, and
entry to England, with the right to tarry there and to move about as
well by land as by water, for buying and selling by the ancient and
right customs, quit from all evil tolls, except (in time of war)
such merchants as are of the land at war with us. And if such are
found in our land at the beginning of the war, they shall be detained
without injury to their bodies or goods, until information be received
by us, or by our chief justiciar, how the merchants of our land found
in the land at war with us are treated and if our men are safe there,
the others shall be safe in our land.
"It shall be lawful in future for any one (excepting always those
imprisoned or outlawed in accordance with the law of the kingdom, and
natives of any country at war with us, and merchants, who shall be
treated as is above provided) to leave our kingdom, and to return,
safe and secure by land and water, except for a short period in time of
war, on grounds of public policy -- reserving always the allegiance
due to us.
"We will appoint as justices, constables, sheriffs or bailiffs only
such as know the law of the realm and mean to observe it well.
"We shall have, moreover, the same respite and the same manner in
rendering justice concerning the disafforestation or retention of those
forests which Henry our father and Richard our brother afforested and
concerning the wardship of lands which are of the fief of another
(namely, such wardships as we have hitherto had by reason of a fief,
which any one held of us by knight's service) and concerning abbeys
founded on other fiefs than our own, in which the lord of the fee
claims to have right; and when we have returned, or if we desist from
our expedition, we will immediately grant full justice to all who
complain of such things.
"All fines made with us unjustly and against the law of this land,
and all amercements imposed unjusty and against the law of this land,
shall be entirely remitted, or else it shall be done concerning them
according to the decision of the five and twenty barons of whom mention
is made below, in the clause for securing the peace, or according to
the judgment of the majority of the same, along with the aforesaid
Stephen Archbishop of Canterbury, if he can be present, and such
others as he may wish to bring with him for this purpose, and if he
cannot be present the business shall nevertheless proceed without him,
provided always that if any one or more of the aforesaid five and twenty
barons are in a similar suit, they shall be removed as far as concerns
this particular judgment, others being substituted in their places
after having been selected by the rest of the same five and twenty for
this purpose only, and after having been sworn.
"Moreover, all the aforesaid customs and liberties, the observance
of which we have granted in our kingdom as far as pertains to us towards
our men, shall be observed by all of our kingdom, as well by clergy as
by laymen, as far as pertains to them towards their men.
"And, on this head, we have caused to be made out letters patent of
Stephen, Archbishop of Canterbury, Henry, Archbishop of
Dublin, the bishops aforesaid, and Master Pandulf, as evidence of
this clause of security and of the aforesaid concessions.
These last provisions show how closely the Church was bound up with
the securing and maintenance of the rights of the English people. The
clauses we have quoted just before, need no comment to show how
sturdily the spirit of liberty strode abroad even at the beginning of
the Thirteenth Century, for Magna Charta was signed in 1215.
The rest of the century was to see great advances in liberty and human
rights, even beyond the guarantees of the Great Charter.
Magna Charta, glorious as it was, was only the beginning of that
basic legislation which was to distinguish the Thirteenth Century in
England. About the middle of the century Bracton began his
collection of the laws of the land which has since been the great
English classic of the Common Law. His work was accomplished while
he was the Chief Justiciary during the reign of Henry III. For
many years before he had occupied various judicial positions, as
Justice Itinerant of the counties of Nottingham and Derby and for
seventeen years his name appears as one of the justices of the Aula
Regis. This experience put him in an eminently fitting position to be
the mouthpiece of English practice and law applications, and his book
was at once accepted as an authority. It is a most comprehensive and
systematic work in five volumes, bearing the title De Legibus et
Consuetudinibus Angliae, and was modeled after the Institutes of
Justinian.
It was during the reign of Edward I., the English Justinian as he
has been called, that the English Common Law came to its supreme
expression, and this monarch has rightly been placed among the great
benefactors of mankind for his magnanimous generosity in securing the
legal rights of his subjects and framing English liberties for all
time. Not a little of Edward's greatness as a law-maker and his
readiness to recognize the rights of his subjects, with his consequent
willingness to have English law arranged and published, must be
attributed to his connection during his earlier years as Prince of
Wales with the famous Simon De Montfort. To this man more than to
any other the English speaking people owe the development of those
constitutional rights, which gradually came to be considered
inalienably theirs during the. Thirteenth Century. He is
undoubtedly one of the very great characters of history and the
Thirteenth Century is by so much greater for having been the scene of
his labors, during so many years, for the establishment of
constitutional limitations to the power of the monarch, and the
uplifting of the rights of subjects not only among the nobility, but
also among the lower classes.
It was in Edward's time that the English Common Law was fashioned
into the shape in which it was to exist for many centuries afterwards.
How true this is may perhaps best be judged by the fact that even the
laws with regard to real estate have not been changed in essence since
that time, though medieval titles to land would seem to be so different
to those of the present day. According to the Encyclopedia
Britannica the changes which have been made since that time have been
mainly due to the action of equity and legislation, the latter
sometimes interpreted by the courts in a manner very different from the
intention of Parliament. The same authority is responsible for the
statement that the reign of Edward I., is notable for three leading
real estate statutes which are still law. One of these was with regard
to Mortmain, while the important statute known as Quia Emptores
(the eighteenth of Chapter I. of the Laws of Edward I.) had the
practical effect of making the transfer of land thenceforward, more of
a commercial and less of a legal transaction. It is to this same
period that is owed the writ Elegit which introduced the law practice
of a creditor's remedy over real estate. How little was accomplished
in the matter of law-making in subsequent centuries, may be gathered
from the fact that Mr. James Williams who writes the article on real
estate in the Encyclopedia Britannica ninth edition, says that from
1290 to the reign of Henry VIII., that is down to the
Sixteenth Century, there is no statute of the first importance
dealing with real estate.
In a word, then, it may be said that these law-makers of the
Thirteenth Century anticipated most of the legal difficulties of the
after-time. Their statutory provisions, as in the case of the
chapters of Magna Charta, seemed originally only to have a narrow
application to certain urgent legal questions of the time, but proved
eventually to contain in themselves the essence of legal principles that
could be applied in circumstances such as the original law-maker had
not even imagined. This, is indeed the typical triumph of the century
in every line of endeavor, that while apparently it devoted itself only
to the narrow problems of its own time, its solutions of them whether
in art and architecture or decoration, in literary expression or poetic
effectiveness, in educational methods or social uplift, always proved
so complete, so thoroughly human in the broadest sense of that word and
so consonant with development, that their work did not have to be done
over again. No greater praise than this could be bestowed.
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