The Thirteenth, Greatest of Centuries

by James J. Walsh

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 [{351}] 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 [{352}] 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 [{353}] 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 analagous 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 [{354}] 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."