Richard and John claimed that the will of the the law of the land. the limit of its growth when both Richard and John, accepting the imperialist theories of Glanvill, held that the will of the prince was the law of the land.1 The reckless attempts prince was made by John to enforce that theory finally brought about the armed conflict between the nation and the king. Upon The nation the part of the nation it was claimed that the law of the land was not the will of the prince, but the immemorial laws the laws of of the English kingdom, with such modifications and amendamended by ments as those laws had suffered through the results of the claimed that it was Eadward as William. Norman conquest. After the coming of the Conqueror, the Old-English system of customary law was generally appealed to as "the laws of good King Eadward," while the changes which it suffered through the results of the Conquest were generally described as the amendments made by King William. This statement is clearly illustrated by that clause in the famous charter of Henry I. in which the king promises to restore the laws of Eadward, with the amendments which his father had made.2 It is therefore plain that when the barons seized upon Henry's charter as the basis of national action, and demanded of the king that he should enter into a treaty with the nation upon the lines which it defined,3 it simply amounted to a demand upon their part that the legal and constitutional relations between the king and the nation should henceforth be regulated by the Old-English code of customary law, subject to such changes in that code as the results of the Conquest had brought about. There is no attempt in the charter to wipe out the irrevocable effects of the Conquest; the new system of central administration and the system of feudal tenures are both recognized as abiding The effort is to fix the limits The effort elements in the constitution. to fix the limits of of innovation, to define the extent to which the centralizing innovation. and feudalizing processes to which the Conquest gave birth shall be permitted to abridge the immemorial freedom in the time to come. In this vital question each estate is interested as a corporate entity, and the nation as a whole is also interested as a corporate entity. Upon the basis of these several interests the treaty is made. Each estate enters into a cov 1 See Green, Hist. of the English People, vol. i. p. 243. 2 "Lagam Edwardi regis vobis reddo eum illis emendationibus quibus pater meus eam emendavit consilio baronum suorum." Art. 13. 8 See above, p. 376. Covenants while the nants for mon rights enant with the king as to its own special rights and privileges, Each estate while the nation in its corporate person covenants as to those for its spegeneral rights and immunities which are to be secured to the cial rights, whole body of freemen irrespective of their division into es- nation cove tates or orders. The provisions of the Great Charter, there- the comfore, fall naturally into two broad divisions: first, those that of all. specially relate to the rights and privileges of the three estates; second, those that relate to the rights and privileges of the nation as a whole. In the following statement of the contents of the charter, its leading provisions will be grouped, as near as may be, in the order which this division. suggests. guaranteed To the estate of the clergy the king promised that the The church Church of England should be free, and that she should have free elec her whole rights and liberties inviolable.1 The right to hold tions. free elections, which was considered first and indispensable, and which had lately been guaranteed in a charter twice issued, was for the third time repeated and confirmed. onage re dal burdens crown. To the estate of the baronage, which consisted of the The bargreater tenants-in-chief who held directly of the crown, the lieved of charter guaranteed many limitations and safeguards in miti- many feu gation of the feudal duties and services due by virture of their by the tenures to the king as supreme lord or suzerain. But it must not be supposed that the barriers which the greater tenantsin-chief thus interposed between themselves and the king were designed for their own protection merely. Animated by a broad spirit of generous patriotism, the barons stipulated in the treaty that every limitation imposed for their protection upon the feudal rights of the king should also be The same imposed upon their rights as mesne lords in favor of the under-tenants who held of them. Upon this all-important their under question the charter provides that "all the aforesaid customs and liberties that we have granted to be held in our kingdom, so far as pertains to us, with reference to our vassals, all men of our kingdom, as well clerk as lay, shall observe so far as pertains to them, with reference to their men." 3 In this way the feudal burdens are limited not only 1 "Anglicana ecclesia libera sit, et habeat jura sua integra, et libertates suas illæsas."- Art. I. 2 See above, p. 378. benefits ex tended to tenants. Aid and scutage limited. in favor of the baronage as against the king, but also in favor of all under-tenants as against the mesne lords themselves. The best illustration of this statement may be found in the following clauses touching the exactions of aids and scutages. As between the king and the baronage the stipulation is, that "No scutage or aid shall be imposed in our kingdom, unless by the general counsel of the nation, except for ransoming our person, making our eldest son a knight, and once for marrying our eldest daughter; and for these there shall be taken a reasonable aid."1 As between the barons and their tenants the stipulation is, that "We will not for the future grant to any one that he may take aid of his own free tenants, unless to ransom his body and to make his eldest son a knight, and once to marry his eldest daughter; and for this there shall be only paid a reasonable aid."2 The feudal clauses which stand next in importance are those which impose restraints upon the exactions of lords in the matter of reliefs, wardships, and marriages. These clauses, seven in number, provide in substance that upon the death of a tenantriage regu- in-chief, whether earl, baron, or knight, the heir if of full age shall have his inheritance upon the payment of a fixed sum which is referred to as the "ancient relief." If the heir is under age and the right of wardship is exercised, then, upon his majority, he shall have his inheritance without relief and without fine.4 In the event of a wardship stringent provisions are imposed for the protection of the ward against the waste and improvidence of the keeper of his lands.5 Express provision is made that heirs shall be married without disparagement; and that widows shall be endowed, and shall marry again, or refuse to marry, without being compelled to pay to their lords unreasonable sums for the privilege. was further provided that no man shall be constrained to perform more service for a knight's fee, or other free tenement, Relief, wardship, and mar lated. It 5 Arts. 4 and 5. Upon the subject of waste, see Reeves, vol. ii. pp. 21, 22. 6 Arts. 6 and 7. As to the older feudal law which forbade a woman to be endowed or to marry without the payment of a fine in one case, and without obtaining a license in the other, see Blackstone, Com., bk. ii. p. 135. upon alien than is due from thence.1 These provisions, designed to relax the system of military tenures, were followed two years later by a clause which tended directly in the opposite direction. In order to increase the hold of lords upon their vas- A restraint sals it was provided in the second reissue of the Great ation, 1217. Charter in 1217 that no tenant should give or sell to another so much of his land as would render the remainder insufficient to answer the services due to the lord of the fee.2 This restraint upon the power of alienation was designed to check the growing practice of subinfeudation, which, as it diminished the power of the mesne lords to perform their services, tended directly to undermine the whole fabric of feudal obligation.3 mons. As the constitution of the commons as organized in the The comthirteenth century can be defined only in broad and general terms, it is difficult to point out definitely and precisely those provisions of the Great Charter which relate exclusively to the third estate. As heretofore explained, according to no medieval theory could the "commons" be defined to be a union into one corporate body, conscious of its own identity, of all classes or orders of men below the nobility and the clergy. The term "commons," as understood on the Continent, bore a far more restricted meaning. In France and Spain the term embraced only the citizens of the privileged towns, or of chartered communities of kindred municipal origin. The third estate in England differed, however, from the same estate in the continental constitutions in that it embraced not only citizens of towns, but also all landowners below baronial rank, many of whom in continental lands would have belonged to the estate of the nobles. The middle The English middle class in England consisted not only of the citizens of towns, class embut also of the lesser landowners dispersed throughout the braced all shires. The term "commons," as it appears in the English low baropolitical system, must therefore be understood to include all freemen, below baronial rank, organized and incorporated for 1 Art. 16. 2 "Nullus liber homo de cetero det amplius alicui vel vendat de terra sua quam ut de residuo terræ suæ possit sufficienter fieri domino feodi servitium ei debitum quod pertinet ad feodum illud." - Magna Carta (1217), art. xxxix. 8 As to the place of this provision in the history of restraints upon alienation, see Digby, Law of Real Property, pp. 118, 136, 199; Reeves, Hist. Eng. Law, vol. ii. p. 24. freemen be nial rank. of London and of all and towns government not only in towns, but in shires.1 Guided by this definition it will be possible to collate, with approximate correctness, those provisions of the charter which specially relate to that great body of freemen, generally known as the middle class, that entered so largely into the composition of Privileges the shire and town communities. First among these provisions must be cited that clause which provides that the city other cities of London shall have all of its ancient liberties and free cusguaranteed. toms, as well by land as by water; and further, that all other cities, boroughs, towns, and ports shall have all of their liberties and free customs.3 In this provision we have a definite recognition of the rights of the "commons" as organized in town communities. In the clause which provides that all "counties, hundreds, wapentakes, and tithings shall stand at the old rent, without any increase, except in manors on the royal demesne," we have a recognition of the rights of the "commons" as organized in "shire communities." 4 "Neither town nor tenant shall be distrained to make bridges or banks, unless that anciently of right they are bound so to do." 5 From such recognitions of the rights of the "commons" in their corporate relations we naturally pass to those provisions touching the rights of individuals who are unmistakably embraced in the ranks of the third estate. In behalf chant class. of the merchant class it is provided that, except in time of war, they shall come in and go out of the kingdom without paying more than the ancient and allowed customs. In the event of war, the rights even of foreign merchants are to be The simple carefully respected. The rights of the simple freeman are Rights of the shire communi ties. The mer freeman. Provisions which re also specially remembered. His horse and cart are, by an express provision, protected against the forcible requisition. even of the sheriff himself.8 Having now referred to those parts of the Great Charter late to the which specially relate to the three estates, the task remains. to collate those clauses which set forth the rights and immu nation as a whole. 1 For the authorities upon this subject, see above, p. 356. 2 "But in England the middle class was not confined to the towns; it spread itself, in the form of a lesser gentry and a wealthy yeomanry, over the whole face of the land."-Freeman, Growth of the Eng. Const., p. 131. 3 Art. 13. 4 Art. 25. 6 Art. 41. Montesquieu has praised the framers of the charter for having thus made the protection of foreign merchants an article of their national liberty. Spirit of Laws, vol. i. p. 349. 8 Art. 30. |