IV. Magna Carta: an Estimate of its Value.
No evidence survives to show that the men of John’s reign placed any excessive or exaggerated importance on the Great Charter; but, without a break since then, the estimate of its worth steadily increased until it came to be regarded almost as a fetish among English lawyers and historians. No estimate of its value can be too high, and no words too emphatic or glowing to satisfy its votaries. In many a time of national crisis, Magna Carta 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.
Are these estimates of its value justified by facts, or are they gross exaggerations? Did it really create an epoch in English history? If so, wherein did its importance exactly lie?
The numerous factors which contributed towards the worth of Magna Carta may be distinguished as of two kinds, intrinsic and extrinsic. (1) Its intrinsic value depends on the nature of its own provisions. The reforms demanded by the barons and granted by this Charter were just and moderate. The avoidance of all extremes tended towards a permanent settlement, since moderation both gains and keeps adherents. Its aims were practical as well as moderate; the language in which they were framed, clear and straightforward. A high authority has described the Charter as “an intensely practical document.” This practicality is an essentially English characteristic, and strikes the key-note of almost every great movement for reform which has held a permanent place in English history. Closely connected with this feature is another—the essentially legal nature of the whole. As Magna Carta was rarely absent from the minds of subsequent opponents of despotism, a practical and legal direction was thus given to the efforts of Englishmen in many ages. [221] Therein lies another English characteristic. While democratic enthusiasts in France and America have often sought to found their rights and liberties on a lofty but unstable basis of philosophical theory embodied in Declarations of Rights; Englishmen have occupied lower but surer ground, aiming at practical remedies for actual wrongs, rather than enunciating theoretical platitudes with no realities to correspond.
Another intrinsic merit of the Charter was that it made definite what had been vague before. Definition is a valuable protection for the weak against the strong; whereas vagueness increases the powers of the tyrant who can interpret while he enforces the law. Misty rights were now reduced to a tangible form, and could no longer be broken with so great impunity. Magna Carta contained no crude innovations, and confirmed many principles whose value was enhanced by their antiquity. King John, in recognising parts of the old Anglo-Saxon customary law, put himself in touch with national traditions and the past history of the nation.
Further, the nature of the provisions bears witness to the broad basis on which the settlement was intended to be built. The Charter, notwithstanding the prominence given to redress of feudal grievances, redressed other grievances as well. In this, the influence of the Church and notably of its Primate, can be traced. Some little attention was given to the rights of the under-tenants also, and even to those of the merchants, while the villein and the alien were not left entirely unprotected. Thus the settlement contained in the Charter had a broad basis in the affection of all classes.
(2) Part of the value of Magna Carta may be traced to extrinsic causes; to the circumstances which gave it birth—to its vivid historical setting. The importance of each one of its provisions is emphasized by the object-lessons which accompanied its inauguration. The whole of Christendom was amazed by the spectacle of the King of a great nation obliged to surrender at discretion to his own subjects, and that, too, after he had scornfully rejected all suggestions of a compromise. The fact that John was compelled to accept the Charter meant a loss of royal prestige, and also great encouragement to future rebels. What once had happened, might happen again; and the humiliation of the King was stamped as a powerful image on the minds of future generations.
Such considerations almost justify enthusiasts, who hold that the granting of Magna Carta was the turning-point in English history. Henceforward it was more difficult for the king to invade the rights of others. Where previously the vagueness of the law lent itself to evasion, its clear re-statement and ratification in 1215 pinned down the king to a definite issue. He could no longer plead that he sinned in ignorance; he must either keep the law, or openly defy it—no middle course was possible.
When all this has been said, it may still be doubted whether the belief of enthusiasts in the excessive importance of Magna Carta has been fully justified. Many other triumphs, almost equally important, have been won in the cause of liberty, and under circumstances almost equally notable; and many statutes have been passed embodying these. Why then should Magna Carta be invariably extolled as the palladium of English liberties? Is not, when all is said, the extreme merit attributed to it mainly of a sentimental or imaginative nature? Such questions must be answered partly in the affirmative. Much of its value does depend on sentiment. Yet all government is, in a sense, founded upon sentiment—sometimes affection, sometimes fear. Psychological considerations are all-powerful in the practical affairs of life. Intangible and even unreal phenomena have played an important part in the history of every nation. The tie that binds the British colonies at the present day to the Mother Country is largely one of sentiment; yet the troopers from Canada and New Zealand who responded to the call of Britain in her hour of need produced practical results of an obvious nature. The element of sentiment in politics can never be ignored.
It is no disparagement to Magna Carta, then, to confess that part of its power has been read into it by later generations, and lies in the halo, almost of romance, which has gradually gathered round it in the course of centuries. It became a battle cry for future ages, a banner, a rallying point, a stimulus to the imagination. For a king, thereafter, openly to infringe the promises contained in the Great Charter, was to challenge the bitterness of public opinion—to put himself palpably in the wrong. For an aggrieved man, however humble, to base his rights upon its terms was to enlist the warm sympathy of all. Time and again, from the Barons’ War against Henry III. to the days of John Hampden and Oliver Cromwell, the possibility of appealing to the words of Magna Carta has afforded a practical ground for opposition; an easily intelligible principle to fight for; a fortified position to hold against the enemies of the national freedom. The exact way in which this particular document—dry as its details at first sight may seem—has, when considered as a whole, fired the popular imagination, is difficult to determine. Such a task lies rather within the sphere of the student of psychology than of the student of history, as usually conceived. However difficult it may be to explain this phenomenon, there is no doubt of its existence. The importance of the Great Charter, originally flowing both from the intrinsic and from the extrinsic features already described, has greatly increased, as traditions, associations, and aspirations have clustered more thickly round it. These have augmented in each succeeding age the reverence in which it has been held, and have made ever more secure its hold upon the popular imagination.
Thus Magna Carta, in addition to its legal value, has a political value of an equally emphatic kind. Apart from and beyond the salutary effect of the many useful laws it contained, its moral influence has contributed to a marked advance of the national spirit, and therefore of the national liberties. A few of the aspects of this advance deserve to be emphasized. The King, by granting the Charter in solemn form, admitted that he was not an absolute ruler—admitted that he had a master over him in the laws which he had often violated, but which he now swore to obey. Magna Carta has thus been truly said to enunciate and inaugurate “the reign of law” or “the rule of law” in the phrase made famous by Professor Dicey. [222]
It marks also the commencement of a new grouping of political forces in England; indeed without such a rearrangement the winning of the Charter would have been impossible. Throughout the reign of Richard I. the old tacit understanding between the king and the lower classes had been endangered by the heavy drain of taxation; but the actual break-up of the old alliance only came in the crisis of John’s reign. Henceforward can be traced a gradual change in the balance of parties in the commonwealth. No longer are Crown and people united, in the name of law and order, against the baronage, standing for feudal disintegration. The mass of humble freemen and the Church are for the moment in league with the barons, in the name of law and order, against the Crown, recently become the chief law-breaker.
The possibility of the existence of such an alliance, even on a temporary basis, involved the adoption by its chief members of a new baronial policy. Hitherto each great baron had aimed at his own independence or aggrandisement, striving on the one hand to gain new franchises for himself, or to widen the scope of those he already had, and on the other to weaken the king and to keep him outside these franchises. This policy, which succeeded both in France and in Scotland, had before John’s reign already failed signally in England, and the English barons now, on the whole, came to admit the hopelessness of renewing the struggle for feudal independence. They substituted for this ideal of an earlier age a more progressive policy. The king, whose interference they could no longer hope completely to shake off, must at least be taught to interfere justly and according to rule; he must walk only by law and custom, not by the caprices of his evil heart. The barons sought henceforward, to control the royal power they could not exclude; they desired some determining share in the national councils, if they could no longer hope to create little nations of their own within the four corners of their fiefs. Magna Carta was the fruit of this new policy.
It has been often repeated, and with truth, that the Great Charter marks also a stage in the growth of national unity or nationality. Here, however, it is necessary to guard against exaggeration. It is merely one movement in a process, rather than a final achievement. We must somewhat discount, while still agreeing in the main with, statements which declare the Charter to be “the first documentary proof of the existence of a united English nation”; or with the often-quoted words of Dr. Stubbs, that “The Great Charter is the first great public act of the nation, after it has realised its own identity.” [223]
A united English nation, whether conscious or unconsciousunconscious of its identity, cannot be said to have existed in 1215, except under several qualifications. The conception of “nationality,” in the modern sense, is of comparatively recent origin, and requires that the lower as well as the higher classes should be comprehended within its bounds. Further, the coalition which wrested the Charter from the royal tyrant was essentially of a temporary nature, and quickly fell to pieces again. Even while the alliance continued, the interests of the various classes, as has been already shown, were far from identical. Political rights were treated as the monopoly of the few (as is evidenced by the retrograde provisions of chapter 14 for the composition of the Commune concilium); and civil rights were far from universally distributed. The leaders of the “national” movement certainly gave no political rights to the despised villeins, who comprised more than three quarters of the entire population of England; while their civil rights were almost completely ignored in the provisions of the Charter.
Magna Carta undoubtedly marked one step, an important step, in the process by which England became a nation; but that step was neither the first nor yet the final one.
V. Magna Carta. Its defects.
The great weakness of the Charter lay in this, that no adequate sanction was attached to it, in order to ensure the enforcement of its provisions. The only expedient suggested for compelling the King to keep his promises was of a nature at once clumsy and revolutionary, and entirely worthless considered as a working scheme of government. Indeed, it was devised not so much to prevent the King from breaking faith as to punish him when he had done so. In other words, no proper constitutional machinery was invented to turn the legal theories of Magna Carta into practical realities. In its absence, we find what has sometimes been described as “a right of legalized rebellion” conferred on an executive committee of twenty-five of the King’s enemies.
This is the chief defect, but not the only one. Many minor faults and omissions may be traced to a similar root. All the great constitutional principles are in reality conspicuously absent. The importance of a council or embryo parliament, constituted on truly national lines (of which some glimmerings can be traced in 1213); the right of such a body to influence the King’s policy in normal times as well as in times of crisis; the doctrine of ministerial responsibility (already dimly foreshadowed in the reign of Richard); the need of distinguishing the various functions of government, legislative, judicial, and administrative—all these cardinal principles are completely ignored by the Charter. Not one of its many clauses affords evidence that the statesmen of the day had any conception, even of a rudimentary nature, of the principles of political science.
Only five of the sixty-three chapters can be said to bear directly on the subject of constitutional (as opposed to purely legal) machinery, and most of these do so only incidentally, namely, chapters 14, 21, 39, 61, and 62.
The Commune Concilium is indeed mentioned; and its composition and mode of summons are clearly defined in chapter 14. But it must be remembered that this chapter appears as a mere afterthought,—as an appendix to chapter 12; its incidental nature is proved by the fact that it has no counterpart in the Articles of the Barons. The rebel magnates were vitally interested in the narrow question of scutage, not in the wide possibilities involved in the existence of a national council. The Commune Concilium was dragged into the Charter, not on its own merits, but merely as a convenient method of preventing the arbitrary increase of feudal exactions. That this was so, is further proved by the fact that both parties were content to omit all mention of the Council from the re-issue of 1217, when an alternative way of checking the arbitrary increase of scutage had been devised.
If the framers of John’s Magna Carta had possessed any grasp of constitutional principles, they would gladly have seized the opportunity afforded them by the mention, however incidentally, of the Common Council, in chapters 12 and 14, in order to define most carefully the powers which they claimed for it. On the contrary, no list of its functions is drawn up; nor do the words of the Charter contain anything to suggest that it exercised any powers other than that of consenting to scutages and aids. Not a word is said of any right inherent in the Council to a share in legislation, to control or even to advise the Executive, or to concur in choosing the great ministers of the Crown. Neither deliberative, administrative, nor legislative powers are secured to it, while its control over taxation is strictly limited to the right to veto scutages and aids—that is say, it only extends over that very narrow class of exactions which affected the military tenants of the Crown. It is true that chapters 21 and 39 may possibly be read confirming the judicial power of the Council in a certain limited group of cases. Earls and barons are not to be amerced except by their peers (per pares suos), and the natural place for these “equals” of a Crown vassal to assemble for this purpose would be the Commune Concilium. This, however, is merely matter of inference; chapter 21 makes no mention of the Council; and it is equally possible that its requirements would be met by the presence among the officials of the Exchequer of a few Crown tenants. [224] Similar reasoning applies to the provisions of chapter 39 (protecting the persons and property of freemen, by insisting on the necessity of a “trial by peers”) so far as they affect earls and barons.
It is clear that the leaders of the opposition in 1215 did not consider the constitutional powers of a national Parliament the best safeguard of the rights and liberties theoretically guaranteed by the Charter. Only one practical or constitutional expedient seems to have occurred to them, namely, that embodied in chapter 61. Twenty-five barons were to be appointed by their fellow-barons to act as Executors of the Charter; but their functions were apparently only to be called into play in the event of King John or his officers breaking any of the provisions of the Charter. If this occurred, intimation might be made to a smaller sub-committee of four, chosen from the twenty-five, and these four would straightway ask the King to redress the grievance complained of. If this was not done within forty days, John granted to the Committee of twenty-five, assisted by “the whole community of the realm,” the right practically to make war upon him. He conferred on them in the most explicit terms full power “to distrain and distress us in all possible ways, by seizing our castles, lands, possessions, and in any other way they can, until the grievances are redressed according to their pleasure.”
Such a provision can hardly be described as constitutional, since it is rather the negation of all constitutional principles—nothing more nor less than legalized rebellion. Provision is made not for the orderly conduct of government, but rather to provide an organization for making war upon the king in certain abnormal circumstances which are defined. Such a scheme was clearly impracticable, and the fact that it recommended itself as a possible expedient to the barons speaks eloquently of their complete ignorance of the most elementary principles of the science of government. Civil war levied on a warrant granted beforehand by the king is treated as a constitutional expedient for the redress of particular grievances as they arise. [225]
The same inability to devise practical remedies for specific evils may be traced in several minor clauses of the Charter. [226] When John promised in chapter 16 that no one should be compelled to do greater service than had been formerly due from any holding, no attempt was made, in case of dispute, to provide constitutional machinery to define what such service actually was; while chapter 45, providing that only men who knew the law, and meant to keep it, should be made justiciars, sheriffs or bailiffs, laid down no criterion of fitness, and contained no suggestion of any way in which so laudable an ambition might be realized.
Thoughtful and statesmanlike as were the provisions of Magna Carta, and wide as was the ground they covered, many important omissions can be pointed out. Some crucial questions seem not to have been foreseen, and others, for example the liability to foreign service, were deliberately shelved [227] —thus leaving room for future misunderstandings. The praise, justly earned, by its framers for the care and precision with which they defined a long list of the more crying abuses, must be qualified in view of the failure to provide procedure to prevent their recurrence. Men had not yet learned the force of the maxim, so closely identified with all later reform movements in England, that a right is valueless without an appropriate remedy to enforce it.
221. Cf. Gneist, Const. Hist., Chapter XVIII.: “By Magna Carta English history irrevocably took the direction of securing constitutional liberty by administrative law.”
222. A. V. Dicey, Law of the Constitution, Part II.
223. Const. Hist., I. 571. Cf. Ibid., I. 583, “The act of the united nation, the church, the barons, and the commons, for the first time thoroughly at one.” Who were “the commons” in 1215? The question is a difficult one to answer. Cf. also Mr. Prothero, Simon de Montfort, 18, “The spirit of nationality of which the chief portion of Magna Carta was at once the product and the seal.”
224. This is the view of Mr. L. O. Pike, House of Lords, 204.
225. Details of this scheme, and a fuller discussion of its defects will be found infra under chapter 61.
226. Magna Carta has been described, in words already quoted with approval, as “an intensely practical document,” Professor Maitland, Social England, I. 409; but this requires some qualification. If it was practical in preferring the condemnation of definite practical grievances to the enunciation of philosophical principles, it was unpractical in omitting to provide machinery for giving effect to its provisions.
