The Thirteenth, Greatest of Centuries

by James J. Walsh

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 [{355}] 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: [Footnote 29]

[Footnote 29: Magna Carta, a Commentary on the Great Charter of King John, with an Historical Introduction by William Sharp McKechnie, M.D., LL.B., D. Phil. Glasgow, James Maclehose and Sons, Publishers to the University, 1905.]

"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 [{356}] 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.