(5) If the scheme of the barons seems ill-suited to meet the needs of the hour of its conception, it was fraught with even greater dangers to the future development of the English constitution. The problem it sought to solve was one of no transient or unimportant nature, since it was nothing less than the devising of legal machinery to prevent the king from abusing the powers entrusted to him. The barons sought the best method of turning royal promises of reform into laws which succeeding kings must obey. In attempting this, Magna Carta moved along lines which were radically wrong; which, if not departed from in time, would have rendered any enduring progress impossible. The statesmanship which, while leaving one king on the throne, subjected him to the dictation of “five-and-twenty over-kings” in regard to all vital questions of the day, was crude and ill-advised. It is true that the party of reform throughout the long reign of Henry III. clung to the same erroneous solution, although under various modifications on points of detail; but they met with no success. After half a century of unrest a settlement seemed as far distant as before. If the same policy had been persisted in during Edward’s reign the English constitution, as it became known to after ages, would never have been evolved. The dangers and defects of schemes like those of 1215 and of 1258 are most clearly seen in contrast with the more tactful efforts of Edward I. towards a true solution, along lines leading in due time to complete success.
The true policy for the barons was to use the king’s own administrative machinery and the king’s own servants to control the king himself. The principle was slowly established that the sovereign could perform no single act of prerogative except through the agency of the proper minister or group of ministers. Each function of government became associated with a specific office or organ of the royal household. The rights of the official head of each department became stereotyped, and his position obtained full legal acknowledgment, while very gradually the doctrine of ministerial responsibility grew up, compelling each officer of the Crown to obey not only the law of the land, but also the Commune Concilium, fast changing into the modern Parliament. The expedients of an earlier age disappeared as no longer required, when the king’s good faith was secured by means of the friendly control of his own ministers, not by the violent compulsion of his opponents. The credit of starting the constitution on its right line of development is in great measure due to Edward I.[[1081]]
IV. Dr. Gneist’s Criticism. Dangerous and even absurd as this scheme appears, it has found its apologist. Dr. Gneist accuses English historians of making “very inappropriate comparisons” between this baronial committee and the continental expedients of the same period. While in most countries of Europe, each baron arrogated the right of private war against his sovereign in circumstances to be determined by his own individual judgment, Magna Carta conferred rights of rebellion only on the barons “in their collective capacity,” and “as represented by definite organs.”[[1082]] The substitution of collective repressive measures for the right of private feud undoubtedly marks an advance; but rebellion, even when organized, cannot be considered a satisfactory constitutional expedient. Dr. Gneist is scarcely more convincing when he argues that English historians and jurists have condemned too unreservedly a scheme which is “so far in harmony with the spirit of the feudal state of the Middle Ages as it was based upon a mutual relation of feudal protection and fealty, that is, upon compact.” “The concession by agreement,” he continues, “of the rights of distress was altogether so entirely consonant with the legal conceptions of the Middle Ages that in this way the committee of resistance loses a portion of its apparently revolutionary character.”[[1083]] That the Middle Ages approved of revolution does not, however, change it into constitutional action; while the fact that it was founded upon the feudal conception of mutual contract may explain it, but does not render it more worthy of admiration. The whole scheme was, of course, thoroughly in accord with the public opinion of the age, but that merely shows how wide is the gulf which separates medieval conceptions from modern ones, and how absurd it is to regard the Great Charter, as is sometimes done, as anticipating the fundamental principles of the English constitution of to-day.
In spite of all apologies, the crudeness of the only sanction provided by Magna Carta for its own enforcement prevents it from ranking as a great monument of constructive statesmanship.
V. Failure of the Scheme. Almost before John’s Magna Carta, in its completed form, had been engrossed and sealed, the futility of its sanction was recognized. Each side grew suspicious and demanded new “sanctions,” new guarantees not contained in the Charter.
(1) Quis custodiet ipsos custodes? Magna Carta, assuming apparently that perfect trust could be placed in the rectitude and wisdom of the Revolutionary Committee, provided no machinery for controlling them, no guarantee that they would observe the Charter without misinterpreting its provisions to suit their own selfish interests. The futility of this complacency was soon manifest. One tyrant had brought distress on the whole nation; and now he was to be superseded by five-and-twenty. Who was to restrain the new tyrants? A second committee was nominated partly to assist and partly to control the twenty-five. Matthew Paris[[1084]] describes it as composed of thirty-eight “Obsecutores et Observatores,” including the Earl Marshal, Hubert de Burgh, the earls of Arundel and Warenne, and other prominent members of the moderate party, not unfriendly to the king. Dr. Stubbs dismisses their relations to the executors with the remark that they “swore to obey the orders of the twenty-five.”[[1085]] Miss Norgate takes what seems to be a better view, in emphasizing as the chief reason for their appointment the duty of compelling “both the king and the twenty-five to deal justly with one another.”[[1086]] The thirty-eight were required to constrain the twenty-five, as the twenty-five constrained the king.[[1087]]
(2) Suspicions of the barons’ good faith. Whether the appointment of the committee of thirty-eight was due partly to John’s influence or was entirely the result of mutual jealousies in the ranks of those opposed to him, there is absolute evidence that the king was distrustful of the barons’ good faith, and desired on his part some “sanction” that they would not again renounce that allegiance, the renewal of which was the quid pro quo for which he had granted the Charter. Apparently the leading barons did renew their oath of fealty and homage on 19th June at Runnymede; but refused to grant a formal Charter to that effect, although they had promised to give any security John might require, except hostages or castles. The prelates when appealed to sided with the king; they executed a formal declaration or protest, recording the barons’ promise and subsequent refusal to give effect to it. There is no reason to doubt the testimony of the prelates; they had been present at all the negotiations, and it was by their mediation that the terms of peace embodied in Magna Carta had been settled. This was not the only matter on which the bishops found it necessary to intervene on the king’s behalf. The new baronial executive and the twelve knights who acted as their agents in each county, pushed to unfair lengths the authority to reform abuses conferred on them in terms of Magna Carta. In particular, they proceeded virtually to abolish the royal forests altogether by abrogating as evil customs the procedure on which this branch of the Crown’s prerogative rested. The prelates placed on record a formal protest on this head also.[[1088]]
(3) Suspicions of John’s good faith. If neither the king nor the nation at large considered that the Great Charter contained sufficient safeguards of their interests against the Committee of Executors, the barons themselves soon came to the conclusion that the Committee, in spite of all its powers, formed an inadequate sanction against John. Accordingly they demanded further “security.” The city of London was placed in their hands, and the Tower of London in the neutral custody of the primate, as pledges of John’s good faith, until 15th August or longer if need were. Those terms were reduced to writing in a document entitled “Conventio facta inter Regem Anglie et barones ejusdem regni,” which thus supplied a new sanction, or “form of security,” supplementing, if not superseding, that contained in chapter 61 of Magna Carta.[[1089]]
(4) Precautions against papal intervention. The Articles of the barons afford undoubted evidence of its framers’ suspicions that John would apply to Rome for absolution from his bargain. They showed considerable shrewdness in demanding that the English prelates and the papal legate should become the king’s sureties that he would not procure from the Pope anything to invalidate the Charter or diminish its efficacy. If Pandulf, as the Pope’s accredited agent, had actually put his seal to such a document, he would have seriously embarrassed his august master in supporting John in a course of repudiation.
Two important alterations in the completed Charter were effected, however, whether at John’s instance, or at that of Pandulf, or of the English prelates, is matter of conjecture. No mention was made of Innocent by name, the clause being made quite general in its terms. John merely promised to procure a dispensation “from no one,” while the question of sureties was quietly ignored. The reason for the omission readily suggests itself; Pandulf would naturally object to commit his principal or himself to any pledge of the kind. The Pope preserved perfect freedom, and the use which he made of this is matter of common knowledge.[[1090]]