Jacques Maritain Center : Greatest of Centuries

XXII GREAT ORIGINS IN LAW.

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:{1}

"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.


{1} Magna Carta, a Commentary on the Great Charter of King John, with an Historical Introduction by William Sharp MeKechnie, M.D., LL.P,., D.Phil. Glasgow, James Maclehose and Sons, Publishers to the University, igo~.

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