A.D. 1215.The barons of England had made use of the king's absence to bring their confederacy to form; and now, seeing him return with so little credit, his allies discomfited, and no hope of a party among his subjects, they appeared in a body before him at London. All in complete armor, and in the guise of defiance, they presented a petition, very humble in the language, but excessive in the substance, in which they declared their liberties, and prayed that they might be formally allowed and established by the royal authority. The king resolved not to submit to their demands; but being at present in no condition to resist, he required time to consider of so important an affair. The time which was granted to the king to deliberate he employed in finding means to avoid a compliance. He took the cross, by which he hoped to render his person sacred; he obliged the people to renew their oath of fealty; and, lastly, he had recourse to the Pope, fortified by all the devices which could be used to supply the place of a real strength, he ventured, when the barons renewed their demands, to give them a positive refusal; he swore by the feet of God (his usual oath) that he would never grant them such liberties as must make a slave of himself.
The barons, on this answer, immediately fly to arms: they rise in every part; they form an army, and appoint a leader; and as they knew that no design can involve all sorts of people or inspire them with extraordinary resolution, unless it be animated with religion, they call their leader the Marshal of the Army of God and Holy Church. The king was wholly unprovided against so general a defection. The city of London, the possession of which has generally proved a decisive advantage in the English civil wars, was betrayed to the barons. He might rather be said, to be imprisoned than defended in the Tower of London, to which close siege was laid; whilst the marshal of the barons' army, exercising the prerogatives of royalty, issued writs to summon all the lords to join the army of liberty, threatening equally all those who should adhere to the king and those who betrayed an indifference to the cause by their neutrality. John, deserted by all, had no resource but in temporizing and submission. Without questioning in any part the terms of a treaty which he intended to observe in none, he agreed to everything the barons thought fit to ask, hoping that the exorbitancy of their demands would justify in the eyes of the world the breach of his promises. The instruments by which the barons secured their liberties were drawn up in form of charters, and in the manner by which grants had been usually made to monasteries, with a preamble signifying that it was done for the benefit of the king's soul and those of his ancestors. For the place of solemnizing this remarkable act they chose a large field, overlooked by Windsor, called Running-mede, which, in our present tongue, signifies the Meadow of Council,—a place long consecrated by public opinion, as that wherein the quarrels and wars which arose in the English nation, when divided into kingdoms or factions, had been terminated from the remotest times. Here it was that King John, on the 15th day of June, in the year of our Lord 1215, signed those two memorable instruments which first disarmed the crown of its unlimited prerogatives, and laid the foundation of English liberty. One was called the Great Charter; the other, the Charter of the Forest. If we look back to the state of the nation at that time, we shall the better comprehend the spirit and necessity of these grants.
Besides the ecclesiastical jurisprudence, at that time, two systems of laws, very different from each other in their object, their reason, and their authority, regulated the interior of the kingdom: the Forest Law, and the Common Law. After the Northern nations had settled here, and in other parts of Europe, hunting, which had formerly been the chief means of their subsistence, still continued their favorite diversion. Great tracts of each country, wasted by the wars in which it was conquered, were set apart for this kind of sport, and guarded in a state of desolation by strict laws and severe penalties. When, such waste lands were in the hands of subjects, they were called Chases; when in the power of the sovereign, they were denominated Forests. These forests lay properly within the jurisdiction of no hundred, county, or bishopric; and therefore, being out both of the Common and the Spiritual Law, they were governed by a law of their own, which was such as the king by his private will thought proper to impose. There were reckoned in England no less than sixty-eight royal forests, some of them of vast extent. In these great tracts were many scattered inhabitants; and several persons had property of woodland, and other soil, inclosed within their bounds. Here the king had separate courts and particular justiciaries; a complete jurisprudence, with all its ceremonies and terms of art, was formed; and it appears that these laws were better digested and more carefully enforced than those which belonged to civil government. They had, indeed, all the qualities of the worst of laws. Their professed object was to keep a great part of the nation desolate. They hindered communication and destroyed industry. They had a trivial object, and most severe sanctions; for, as they belonged immediately to the king's personal pleasures, by the lax interpretation of treason in those days, all considerable offences against the Forest Law, such as killing the beasts of game, were considered as high treason, and punished, as high treason then was, by truncation of limbs and loss of eyes and testicles. Hence arose a thousand abuses, vexatious suits, and pretences for imposition upon all those who lived in or near these places. The deer were suffered to run loose upon their lands; and many oppressions were used with relation to the claim of commonage which the people had in most of the forests. The Norman kings were not the first makers of the Forest Law; it subsisted under the Saxon and Danish kings. Canute the Great composed a body of those laws, which still remains. But under the Norman kings they were enforced with greater rigor, as the whole tenor of the Norman government was more rigorous. Besides, new forests were frequently made, by which private property was outraged in a grievous manner. Nothing, perhaps, shows more clearly how little men are able to depart from the common course of affairs than that the Norman kings, princes of great capacity, and extremely desirous of absolute power, did not think of peopling these forests, places under their own uncontrolled dominion, and which might have served as so many garrisons dispersed throughout the country. The Charter of the Forests had for its object the disafforesting several of those tracts, the prevention of future afforestings, the mitigation and ascertainment of the punishments for breaches of the Forest Law.
The Common Law, as it then prevailed in England, was in a great measure composed of some remnants of the old Saxon customs, joined to the feudal institutions brought in at the Norman Conquest. And it is here to be observed, that the constitutions of Magna Charta are by no means a renewal of the Laws of St. Edward, or the ancient Saxon laws, as our historians and law-writers generally, though very groundlessly, assert. They bear no resemblance in any particular to the Laws of St. Edward, or to any other collection of these ancient institutions. Indeed, how should they? The object of Magna Charta is the correction of the feudal policy, which was first introduced, at least in any regular form, at the Conquest, and did not subsist before it. It may be further observed, that in the preamble to the Great Charter it is stipulated that the barons shall hold the liberties there granted to them and their heirs, from the king and his heirs; which shows that the doctrine of an unalienable tenure was always uppermost in their minds. Their idea even of liberty was not (if I may use the expression) perfectly free; and they did not claim to possess their privileges upon any natural principle or independent bottom, but just as they held their lands from the king. This is worthy of observation.
By the Feudal Law, all landed property is, by a feigned conclusion, supposed to be derived, and therefore to be mediately or immediately held, from the crown. If some estates were so derived, others were certainly procured by the same original title of conquest by which the crown itself was acquired, and the derivation from the king could in reason only be considered as a fiction of law. But its consequent rights being once supposed, many real charges and burdens grew from a fiction made only for the preservation of subordination; and in consequence of this, a great power was exercised over the persons and estates of the tenants. The fines on the succession to an estate, called in the feudal language reliefs, were not fixed to any certainty, and were therefore frequently made so excessive that they might rather be considered as redemptions or new purchases than acknowledgments of superiority and tenure. With respect to that most important article of marriage, there was, in the very nature of the feudal holding, a great restraint laid upon it. It was of importance to the lord that the person who received the feud should be submissive to him; he had, therefore, a right to interfere in the marriage of the heiress who inherited the feud. This right was carried further than the necessity required: the male heir himself was obliged to marry according to the choice of his lord; and even widows, who had made one sacrifice to the feudal tyranny, were neither suffered to continue in the widowed state nor to choose for themselves the partners of their second bed. In fact, marriage was publicly set up to sale. The ancient records of the Exchequer afford many instances where some women purchased by heavy fines the privilege of a single life, some the free choice of an husband, others the liberty of rejecting some person particularly disagreeable. And what may appear extraordinary, there are not wanting examples where a woman has fined in a considerable sum, that she might not be compelled to marry a certain man; the suitor, on the other hand, has outbid her, and solely by offering more for the marriage than the heiress could to prevent it, he carried his point directly and avowedly against her inclinations. Now, as the king claimed no right over his immediate tenants that they did not exercise in the same or in a more oppressive manner over their vassals, it is hard to conceive a more general and cruel grievance than this shameful market, which so universally outraged the most sacred relations among mankind. But the tyranny over women was not over with the marriage. As the king seized into his hands the estate of every deceased tenant in order to secure his relief, the widow was driven often by an heavy composition to purchase the admission to her dower, into which it should seem she could not enter without the king's consent.
All these were marks of a real and grievous servitude. The Great Charter was made, not to destroy the root, but to cut short the overgrown branches of the feudal service: first, in moderating and in reducing to a certainty the reliefs which the king's tenants paid on succeeding to their estate according to their rank; and, secondly, in taking off some of the burdens which had been laid on marriage, whether compulsory or restrictive, and thereby preventing that shameful market which had been made in the persons of heirs, and the most sacred things amongst mankind.
There were other provisions made in the Great Charter that went deeper than the feudal tenure, and affected the whole body of the civil government. A great part of the king's revenue then consisted in the fines and amercements which were imposed in his courts. A fine was paid there for liberty to commence or to conclude a suit. The punishment of offences by fine was discretionary; and this discretionary power had been very much abused. But by Magna Charta, things were so ordered, that a delinquent might be punished, but not ruined, by a fine or amercement; because the degree of his offence, and the rank he held, were to be taken into consideration. His freehold, his merchandise, and those instruments by which he obtained his livelihood were made sacred from such impositions.
A more grand reform was made with regard to the administration of justice. The kings in those days seldom resided long in one place, and their courts followed their persons. This erratic justice must have been productive of infinite inconvenience to the litigants. It was now provided that civil suits, called Common Pleas, should be fixed to some certain place. Thus one branch of jurisdiction was separated from the king's court, and detached from his person. They had not yet come to that maturity of jurisprudence as to think this might be made to extend to criminal law also, and that the latter was an object of still greater importance. But even the former may be considered as a great revolution. A tribunal, a creature of mere law, independent of personal power, was established; and this separation of a king's authority from his person was a matter of vast consequence towards introducing ideas of freedom, and confirming the sacredness and majesty of laws.
But the grand article, and that which cemented all the parts of the fabric of liberty, was this,—that "no freeman shall be taken, or imprisoned, or disseized, or outlawed, or banished, or in any wise destroyed, but by judgment of his peers."