CHAP. 1215 Confirma existing modes of oppression to which the Church was subject were somewhat more clearly defined and denounced, while the rights of the vassal alone were minutely laid down, his protection carefully ensured, and the same tion of rights extended to the subtenant. These ancient rights. rights were therefore amplified and proclaimed anew in Magna Carta, and with slight alterations reappear in the subsequent editions of 1216 and 1217; the subtenant was in all cases as scrupulously protected as the tenant-in-chief. But this was not all; the advance made in other ways since 1100 had to be recorded and confirmed. We find therefore the judicial and administrative system established by Henry II preserved almost intact in Magna Carta, though its abuse was carefully guarded against. The limitations introduced were somewhat strengthened in subsequent confirmations, and point, on the one hand, to an excessive growth of royal power, and, on the other, to the necessity of concession to the feudal spirit. So too were confirmed the rights and liberties of the Church, including, at least in the charter of 1215, the newly-granted freedom of election; the liberties of the towns were recognised, and London and the Cinque Ports specially mentioned; finally, the great progress made in the forest legislation was recorded, and, having been somewhat vaguely stated in the charter of 1215, was incorporated two years later in a separate charter. But the greatest advance made in Magna Carta, Univerand that which gives it its most lasting fame, is the Magna sality of regard paid to the liberties of all subjects.' The same It is worth while to notice that the words in which these liberties are stated in §35 of the charter of 1217 are considerably fuller and clearer than the corresponding declaration in the charter of 1215. C Carta. СНАР. I. 1215 Universality of Magna Carta. Advance spirit is visible in the charter of Henry I, and is inherent in both charters, as engagements in which the most powerful class promises to extend to others the benefits it claims for itself. But whereas in 1100 this spirit did not go beyond the bounds of feudalism, in 1215 it embraces the whole nation. The people, the communa' of the land, are called upon to undertake with their leaders the defence of their newly-won liberties; while the barons, the representatives of a foreign system, of the feudal invasion, acknowledge their fusion with older elements by a special extension to themselves of a right more ancient than feudalism, the right of judgment by their peers. So far then existing rights, whether they trace their origin to immemorial usage, or to the ancient law of the land, or to charters and edicts of the kings, were stated, amplified, and confirmed. A great advance had been made since the last important charter, but the advance had been made on the same lines; that part therefore of the charter which embodies those rights with their logical extensions, and confirms the established system of government, was kept almost intact in the subsequent confirmations and in the final necessity of form. Now the recognition of public rights, of universal liberty, was a great step, but how was it to be secured? The word of an absolute monarch was not a sufficient guarantee. But the constitutional ideas of the time were vague, and the measures in which they found expression were incompatible with the existing conception of monarchy. The spirit of nationality, of which the chief portion of Magna Carta was at once the product and the seal, was a fact that could not be gainsaid; but the principle of self-taxation and the securing this. CHAP. I. 1215 Political of Magna other constitutional principles announced in 1215 had & only tion; that the great officers who administer the law fe nobles tations. under which he lives must be men of the same blood 1 Cf. Gneist, Verw. i. 288. * It seems doubtful whether the clause simili modo &c.,' in § 12 of the charter of 1215 implies more than that the aid taken from London shall likewise be 'rationabile'; cf. Lords' Report i. 65. CHAP. 1215 Reaction Magna on as a matter of course, though confined to three special occasions; the only limitation to their amount was that they were to be reasonable,' and to London alone, besides the great vassals, was even this vague privilege extended. So little appearance was there at this time of a Parliament according to modern ideas, and from even so moderate a statement of principles its authors seem to have shrunk back in alarm at their own boldness. The omission in succeeding confirmations of the clause in the charter of 1215, which granted liberty of election to the Church, is regarded by Professor Stubbs as showing merely the reluctance of the clergy to receive the privilege as a royal favour, the right itself being included among the liberties confirmed by the opening words of the charter. But there is no such way of accounting for the omission of the clauses bearing on the composition and rights of the national council. A promise was given in the issue of 1216 that certain serious and doubtful matters,' touching scutage and aids, the holding of the council, and other questions, should be treated of with due deliberation,' but even this promise disappeared in the issue of the next year. The charter of 1216 made no promise as to the appointment of fit persons to the high offices of the realm; the clause 2 concerning this important point was omitted without comment in that and later issues. Further, in the charter of 1217, it was provided. that scutage should be levied as in the days of Henry II, a provision which probably secured against the arbitrary increase of the amount which had taken place under John, but which deprived the council of any $42 of M. C. 1216. § 45 of M. C. 1215. 1 CHAP. I 1215 legal influence in the levying of the tax. The omission of the clause protecting the tenants-in-chief brought with it of course the omission of the clause protecting Other subtenants from similar arbitrary exactions.1 differences in subse issues. Besides this retrogression in those points where quent constitutional legislation might have been expected to be permanent, those articles which put a check, probably never intended to be lasting, on the royal power were naturally omitted. The clumsy expedient intended to secure the execution of the charter, the establishment of a committee of government of twentyfive, did not reappear. It would have been a mere drag on the executive, for its powers were so unlimited that it could have interfered on almost any pretext, while its numbers almost precluded the possibility of united and energetic action. In spite of its failure, we shall see how the experiment was repeated, with almost equal want of success, in later years. Other occasional articles, whose objects had already been carried out, were also omitted; one important addition was made in 1217, the order for the destruction of the adulterine castles built since the outbreak of war between John and the barons, a provision which shows how far the country had relapsed into a state of things similar to that of seventy years before. This clause was found to be no longer necessary in 1225; with this exception, the issue of that year is almost identical The issue with that of 1217. There is however an important difference in the way in which the charter was issued. It is said to be granted of the kings own good-will,2 1 It is observable that § 14 of M. C. 1215, concerning the composition of, and the summons to, a Commune Concilium, was not contained in the articles presented by the barons on which the charter is based. 26 of 1225. |