Part 5 — MAGNA CARTA. (continued 7)

These wider questions are here referred to merely as illustrations of the difficulties that lurk in the word “commune,” and in the equally perplexing phrase “commune of the whole land.”^[1079] The mere use of such a phrase cannot be accepted as a proof that the Charter rests on a broad popular basis.

III. Criticism of the Scheme. The faults of the scheme, whether viewed from the side of theory or of practice, are obvious. It was a violent and unnatural measure, full of immediate dangers, and calculated to exercise a baneful influence on constitutional development in the future. The fact that Magna Carta provided no better sanction for its own enforcement than the right of legalized rebellion has already been discussed as its cardinal defect.^[1080] Instead of preventing the king from inflicting wrongs, it merely provided forcible measures for the redress of those already committed, thus adding the crowning evil of civil war to those minor evils it sought to reform. That the whole scheme was foredoomed to failure constitutes perhaps its least conspicuous fault in the eyes of later history. It is instructive to note a few of its other defects in detail.

(1) The scheme challenged hostility by its want of moderation. It aimed at reducing the Crown at one blow from the plenitude of irresponsible tyranny to a position of degrading impotence. On every vexed political question of the day, John’s authority would have been superseded by that of twenty-five of the most hostile 555faction of the baronage. If the king thought himself aggrieved in anything, he would require to plead his cause humbly before a tribunal in which his opponents sat as judges. The scheme was thus repugnant to the mass of loyal Englishmen, who cherished a respect for the time-honoured principle of monarchy. No king with a grain of self-respect would long submit tamely to a position so illogical and degrading—to remain a sovereign whose “sovereignty” existed merely on the sufferance of his enemies, a puppet-king whose subjects had the legal right to coerce him. The powers thus conferred on a baronial committee in 1215 were more sweeping than those conferred on a similar committee in 1258, and yet the Parliament which appointed the latter has been branded for all time as “the Mad Parliament,” because of the violence of its measures against the king.

(2) Rebellion, even where morally justified, is essentially and necessarily illegal; to attempt to map out for it a legitimate sphere of action is to attempt the logically impossible. The barons, in their dearth of political experience, and in the extremity of their need, had demanded and obtained something more dangerous than the amplest measure of constitutional authority. They had failed to rise to the true conception of a limited monarchy. Their scheme recognized a king still absolute in some matters, but in others powerless and abject. They set up side by side two rival Executives, each in different circumstances supreme. The relations of the two were far from accurately defined, even in theory, while collisions were certain to occur frequently in practice. The powers of the twenty-five, a body which received no proper organization, were those of aggression rather than of administration. Viewed in this light, the claims of the barons to constructive statesmanship rank extremely low.

(3) The powers of the Revolutionary Committee, excessive though ill-defined, backed by the sworn obedience of all classes of the nation, would tend completely to paralyze the king. The nominal sovereign, always nervous under 556this sword of Damocles, would lose all power of initiative, while the committee, so powerful to reduce him to impotence, would be powerless alike to goad him into action or to act in his stead. The Revolutionary Committee had been planned as a drag on a bad executive, not as a good executive to take its place.

(4) Even as a drag, however, the efficiency of the committee would have been completely neutralized in either of two contingencies: if the barons composing it disagreed among themselves, or, if the king refused to surrender, preferring the appeal to arms. The monarch had always the alternative of civil war, and the material and moral advantage of acting on the defensive lay with him; while the committee had to face the risks to which an attacking party is invariably exposed. Not a single step to restrain the king could legally be taken until he had precipitated matters by committing a clear act of aggression, and had thereafter received formal intimation followed by an interval of forty days, during which he might complete his preparation for war without fear of interruption.

(5) If the scheme of the barons seems ill-suited to meet the needs of the hour of its conception, it was fraught with even greater dangers to the future development of the English constitution. The problem it sought to solve was one of no transient or unimportant nature, since it was nothing less than the devising of legal machinery to prevent the king from abusing the powers entrusted to him. The barons sought the best method of turning royal promises of reform into laws which succeeding kings must obey. In attempting this, Magna Carta moved along lines which were radically wrong; which, if not departed from in time, would have rendered any enduring progress impossible. The statesmanship which, while leaving one king on the throne, subjected him to the dictation of “five-and-twenty over-kings” in regard to all vital questions of the day, was crude and ill-advised. It is true that the party of reform throughout the long reign of Henry III. clung to the same erroneous solution, 557although under various modifications on points of detail; but they met with no success. After half a century of unrest a settlement seemed as far distant as before. If the same policy had been persisted in during Edward’s reign the English constitution, as it became known to after ages, would never have been evolved. The dangers and defects of schemes like those of 1215 and of 1258 are most clearly seen in contrast with the more tactful efforts of Edward I. towards a true solution, along lines leading in due time to complete success.

The true policy for the barons was to use the king’s own administrative machinery and the king’s own servants to control the king himself. The principle was slowly established that the sovereign could perform no single act of prerogative except through the agency of the proper minister or group of ministers. Each function of government became associated with a specific office or organ of the royal household. The rights of the official head of each department became stereotyped, and his position obtained full legal acknowledgment, while very gradually the doctrine of ministerial responsibility grew up, compelling each officer of the Crown to obey not only the law of the land, but also the Commune Concilium, fast changing into the modern Parliament. The expedients of an earlier age disappeared as no longer required, when the king’s good faith was secured by means of the friendly control of his own ministers, not by the violent compulsion of his opponents. The credit of starting the constitution on its right line of development is in great measure due to Edward I.^[1081]

IV. Dr. Gneist’s Criticism. Dangerous and even absurd as this scheme appears, it has found its apologist. Dr. Gneist accuses English historians of making “very inappropriate comparisons” between this baronial committee and the continental expedients of the same period. While in most countries of Europe, each baron arrogated the right of private war against his sovereign in circumstances 558to be determined by his own individual judgment, Magna Carta conferred rights of rebellion only on the barons “in their collective capacity,” and “as represented by definite organs.”^[1082] The substitution of collective repressive measures for the right of private feud undoubtedly marks an advance; but rebellion, even when organized, cannot be considered a satisfactory constitutional expedient. Dr. Gneist is scarcely more convincing when he argues that English historians and jurists have condemned too unreservedly a scheme which is “so far in harmony with the spirit of the feudal state of the Middle Ages as it was based upon a mutual relation of feudal protection and fealty, that is, upon compact.” “The concession by agreement,” he continues, “of the rights of distress was altogether so entirely consonant with the legal conceptions of the Middle Ages that in this way the committee of resistance loses a portion of its apparently revolutionary character.”^[1083] That the Middle Ages approved of revolution does not, however, change it into constitutional action; while the fact that it was founded upon the feudal conception of mutual contract may explain it, but does not render it more worthy of admiration. The whole scheme was, of course, thoroughly in accord with the public opinion of the age, but that merely shows how wide is the gulf which separates medieval conceptions from modern ones, and how absurd it is to regard the Great Charter, as is sometimes done, as anticipating the fundamental principles of the English constitution of to-day.

In spite of all apologies, the crudeness of the only sanction provided by Magna Carta for its own enforcement prevents it from ranking as a great monument of constructive statesmanship.

V. Failure of the Scheme. Almost before John’s Magna Carta, in its completed form, had been engrossed and sealed, the futility of its sanction was recognized. Each side grew suspicious and demanded new “sanctions,” new guarantees not contained in the Charter.

559(1) Quis custodiet ipsos custodes? Magna Carta, assuming apparently that perfect trust could be placed in the rectitude and wisdom of the Revolutionary Committee, provided no machinery for controlling them, no guarantee that they would observe the Charter without misinterpreting its provisions to suit their own selfish interests. The futility of this complacency was soon manifest. One tyrant had brought distress on the whole nation; and now he was to be superseded by five-and-twenty. Who was to restrain the new tyrants? A second committee was nominated partly to assist and partly to control the twenty-five. Matthew Paris^[1084] describes it as composed of thirty-eight “Obsecutores et Observatores,” including the Earl Marshal, Hubert de Burgh, the earls of Arundel and Warenne, and other prominent members of the moderate party, not unfriendly to the king. Dr. Stubbs dismisses their relations to the executors with the remark that they “swore to obey the orders of the twenty-five.”^[1085] Miss Norgate takes what seems to be a better view, in emphasizing as the chief reason for their appointment the duty of compelling “both the king and the twenty-five to deal justly with one another.”^[1086] The thirty-eight were required to constrain the twenty-five, as the twenty-five constrained the king.^[1087]

(2) Suspicions of the barons’ good faith. Whether the appointment of the committee of thirty-eight was due partly to John’s influence or was entirely the result of mutual jealousies in the ranks of those opposed to him, there is absolute evidence that the king was distrustful of the barons’ good faith, and desired on his part some “sanction” that they would not again renounce that 560allegiance, the renewal of which was the quid pro quo for which he had granted the Charter. Apparently the leading barons did renew their oath of fealty and homage on 19th June at Runnymede; but refused to grant a formal Charter to that effect, although they had promised to give any security John might require, except hostages or castles. The prelates when appealed to sided with the king; they executed a formal declaration or protest, recording the barons’ promise and subsequent refusal to give effect to it. There is no reason to doubt the testimony of the prelates; they had been present at all the negotiations, and it was by their mediation that the terms of peace embodied in Magna Carta had been settled. This was not the only matter on which the bishops found it necessary to intervene on the king’s behalf. The new baronial executive and the twelve knights who acted as their agents in each county, pushed to unfair lengths the authority to reform abuses conferred on them in terms of Magna Carta. In particular, they proceeded virtually to abolish the royal forests altogether by abrogating as evil customs the procedure on which this branch of the Crown’s prerogative rested. The prelates placed on record a formal protest on this head also.^[1088]

(3) Suspicions of John’s good faith. If neither the king nor the nation at large considered that the Great Charter contained sufficient safeguards of their interests against the Committee of Executors, the barons themselves soon came to the conclusion that the Committee, in spite of all its powers, formed an inadequate sanction against John. Accordingly they demanded further “security.” The city of London was placed in their hands, and the Tower of London in the neutral custody of the primate, as pledges of John’s good faith, until 15th August or longer if need were. Those terms were reduced to writing in a document entitled “Conventio facta inter Regem Anglie et barones ejusdem regni,” which thus supplied a new sanction, or “form of security,” supplementing, if not 561superseding, that contained in chapter 61 of Magna Carta.^[1089]

(4) Precautions against papal intervention. The Articles of the barons afford undoubted evidence of its framers’ suspicions that John would apply to Rome for absolution from his bargain. They showed considerable shrewdness in demanding that the English prelates and the papal legate should become the king’s sureties that he would not procure from the Pope anything to invalidate the Charter or diminish its efficacy. If Pandulf, as the Pope’s accredited agent, had actually put his seal to such a document, he would have seriously embarrassed his august master in supporting John in a course of repudiation.

Two important alterations in the completed Charter were effected, however, whether at John’s instance, or at that of Pandulf, or of the English prelates, is matter of conjecture. No mention was made of Innocent by name, the clause being made quite general in its terms. John merely promised to procure a dispensation “from no one,” while the question of sureties was quietly ignored. The reason for the omission readily suggests itself; Pandulf would naturally object to commit his principal or himself to any pledge of the kind. The Pope preserved perfect freedom, and the use which he made of this is matter of common knowledge.^[1090]

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CHAPTER SIXTY-TWO.

Et omnes malas voluntates, indignaciones, et rancores ortos inter nos et homines nostros, clericos et laicos, a tempore discordie, plene omnibus remisimus et condonavimus. Preterea omnes transgressiones factas occasione ejusdem discordie, a Pascha anno regni nostri sextodecimo usque ad pacem reformatam, plene remisimus omnibus, clericis et laicis, et quantum ad nos pertinet plene condonavimus. Et insuper fecimus eis fieri litteras testimoniales patentes domini Stephani Cantuariensis archiepiscopi, domini Henrici Dublinensis archiepiscopi, et episcoporum predictorum, et magistri Pandulfi, super securitate ista et concessionibus prefatis.

And all the ill-will, hatreds, and bitterness that have arisen between us and our men, clergy and lay, from the date of the quarrel, we have completely remitted and pardoned to everyone. Moreover, all trespasses occasioned by the said quarrel, from Easter in the sixteenth year of our reign till the restoration of peace, we have fully remitted to all, both clergy and laymen, and completely forgiven, as far as pertains to us. And, on this head, we have caused to be made out to them letters patent of Stephen, archbishop of Canterbury, Henry, archbishop of Dublin, the bishops aforesaid, and master Pandulf, as evidences of this clause of security and of the foresaid concessions.

The clauses which follow the forma securitatis are entirely of a formal nature, adding nothing to the substance of Magna Carta. The present chapter, after making a well-meant declaration that bygones should be bygones, and that perfect peace and goodwill should everywhere prevail—a pious aspiration doomed to speedy disillusion—proceeds to authorize the prelates to issue under their 563seals certified copies of the terms of the Great Charter. Such letters were actually issued, and their terms are preserved in the Red Book of the Exchequer.^[1091]

CHAPTER SIXTY-THREE.

Quare volumus et firmiter precipimus quod Anglicana ecclesia libera sit et quod homines in regno nostro habeant et teneant omnes prefatas libertates, jura, et concessiones, bene et in pace, libere et quiete, plene et integre sibi et heredibus suis, de nobis et heredibus nostris, in omnibus rebus et locis, in perpetuum, sicut predictum est. Juratum est autem tam ex parte nostra quam ex parte baronum, quod hec omnia supradicta bona fide et sine malo ingenio observabuntur. Testibus supradictis et multis aliis. Data per manum nostram in prato quod vocatur Ronimede, inter Windlesoram et Stanes, quinto decimo die Junii, anno regni nostri decimo septimo.

Wherefore it is our will, and we firmly enjoin, that the English Church be free, and that the men in our kingdom have and hold all the aforesaid liberties, rights, and concessions, well and peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in 564all respects and in all places for ever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the part of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intent. Given under our hand—the above-named and many others being witnesses—in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of our reign.

This last of the sixty-three chapters into which Magna Carta has been divided for purposes of convenience, not by its framers, but by modern commentators, contains little that calls for special comment. Beginning with a repetition of the declarations already made in chapter one that the English church should be free (omitting, however, any second reference to canonical election) and that homines in regno nostro should have and hold all of the aforesaid liberties, rights and concessions, it went on to record the fact that both parties had taken oath to observe its contents in good faith.^[1092] The magnates named in the preamble were thereafter, along with many others who were not named, referred to collectively as witnesses. The Charter concludes with the declaration that it has been “given by our hand,” the place and date being specified, so as to conform to the formalities required in legal documents. The actual giving by John’s hand was effected by the impress of his great seal.^[1093]

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