It is a document which, more than any other, links together the different epochs of English history. With a renewal of the earliest maxims of German personal freedom it combines a settlement of the rights of the feudal Estates: on this twofold basis has the proud edifice of the English constitution been erected. Before all things the lay nobles sought to secure themselves against the misuse of the King's authority in his feudal capacity, and as bound up with the supreme jurisdiction; but the rights of the Church and of the towns were also guaranteed. It was especially by forced collections of extraordinary aids that King John had harassed his Estates: since they could no longer put up with this, and yet the crown could not dispense with extraordinary resources, a solution was found by requiring that such aids should not be levied except with the consent of the Great Council, which consisted of the lords spiritual and temporal. They tried to set limits to the arbitrary imprisonments that had been hitherto the order of the day, by definite reference to the law of the land and the verdict of sworn men. But these are just the weightiest points on which personal freedom and security of property rest; and how to combine them with a strong government forms the leading problem for all national constitutions.
Two other points in this document deserve notice. In other countries also at this epoch emperors and kings made very comprehensive concessions to the several Estates: the distinctive point in the case of England is, that they were not made to each Estate separately, but to all at the same time. While elsewhere each Estate was caring for itself, here a common interest of all grew up, which bound them together for ever. Further, the Charter was introduced in conscious opposition to the supreme spiritual power also; the principles which lay at the very root of popular freedom breathed an anti-Romish spirit.
Yet it was far from possible to regard them as being fully established. There were also conditions contained in the Charter, by which the legal and indispensable powers of the King's government were impaired: the barons even formed a controlling power as against the King. It could not be expected that King John, or any of his successors, would let this pass quietly. And besides, was not the Pope able to do away with the obligation of which he disapproved? We still possess the first draft of the Charter, which presents considerable variations from the document in its final form, among others the following. According to the draft the King was to give an assurance that he would never obtain from the Pope a revocation of the arrangements agreed on; the archbishop, the bishops, and the Papal plenipotentiary, Master Pandulph, were to guarantee this assurance. We see to what quarter the anxieties of the nobles pointed, how they wished above all to obtain security against the influences of the Papal See. Yet this they were not able to obtain. There was no mention in the document either of the bishops or of Master Pandulph; the King promised in general, not to obtain such a revocation from any one; they avoided naming the Pope.[34]
In reality it made no difference, whatever might be promised or done in this respect. Innocent III was not the man to accept quietly what had taken place against his declared will, or to yield to accomplished facts. On the authority of the words 'I have set thee over the nations and over the kingdoms,' which seemed to him a sufficient basis for his Paramount Right, he gave sentence rejecting the whole contents of the Charter; he suspended Stephen Langton, excommunicated the barons and the citizens of London, as the true authors of this perverse act, and forbade the King under pain of excommunication to observe the Charter which he had put forth.
And even without this King John had already armed, to annul by force of arms all that he had promised. A war broke out which took a turn especially dangerous to the kingdom, because the barons called the heir of France to the English throne and did him homage. So little were the feelings of nationality yet developed, that the barons fought out the war against their King, supported by the presence and military Power of a foreign prince. For the interests of the English crown it was perhaps an advantage that King John died in the midst of the troubles, and his rights passed to his son Henry, a child to whom his father's iniquity could not be imputed.[35] In his name a royalist party was formed by the joint action of Pembroke, the Marshal of the kingdom and the Papal Legate, which at last won such advantages in the field, that the French prince was induced to surrender his claim, which he himself hardly held to be a good one—the English were designated as traitors by his retinue,—and give back to the barons the homage they had pledged him. But he did so only on the condition that not merely their possessions, but also the lawful customs and liberties of the realm should be secured to them.[36] At a meeting between Henry III and the French prince at Merton in Surrey, it was agreed to give Magna Charta a form, in which it was deemed compatible with the monarchy. In this shape the article on personal freedom occurs; on the other hand everything is left out that could imply a power of control to be exercised against the King; the need of a grant before levying scutage is also no longer mentioned. The barons abandoned for the time their chief claims.
It is, properly speaking, this charter which was renewed in the ninth year of Henry III as Magna Charta, and was afterwards repeatedly confirmed. As we see, it did not include the right of approving taxes by a vote.
Whether men's union in a State in general depends on an original contract, is a question for political theorists, and to them we leave its solution. On the other hand, however, it might well be maintained that the English constitution, as it gradually shaped itself, assumed the character of a contract. So much is already involved in the first promises which William the Conqueror made at his entry into London and in his agreement with the partisans of Harold. The same is true of the assurances given by his sons, especially the second one: they were the price of a very definite equivalent. More than any that had gone before however does Magna Charta bear this character. The barons put forward their demands: King John negociates about them, and at last sees himself forced to accept them. It is true that he soon takes arms to free himself from the obligation he has undertaken. It comes to a struggle, in which, however, neither side decidedly gains the upper hand, and they agree to a compromise. It is true the barons did not expressly stipulate for the new charter when they submitted to John's son (for with John himself they could certainly have never been reconciled), but yet it is undeniable that without it their submission would never have taken place, nor would peace have been concluded.
As, however, is generally the case, the agreement had in it the germs of a further quarrel. The one side did not forget what it had lost, the other what it had aimed at and failed to attain. Magna Charta does not contain a final settlement, by which the sovereign's claims to obedience were reconciled with the security of the vassals; it is less a contract that has attained to full validity, than the outline of a contract, to fill up which would yet require the struggles of centuries.
NOTES:
[22] He says himself later, 'terror publicae potestatis me intrusit,' in Gervasius, 497.