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 [{357}] 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 [{358}] 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 [{359}] 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 unjustly 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 [{361}] 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 [{362}] 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.