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.Consent to taxation in the modern sense is notthere neither taxation nor consent.Trial by jury is notthere in that form of it which became a check on arbitrarypower, nor is it referred to at all in the clause which has beensaid to embody it.Parliament, habeas corpus, bail, the inde-pendence of the judiciary, are all of later growth, or existedonly in rudimentary form.Nor can the charter be properlycalled a contract between king and nation.The idea of thenation, as we now hold it, was still in the future, to be calledinto existence by the circumstances of the next reign.Theidea of contract certainly pervades the document, but only asthe expression of the always existent contract between thesuzerain and his vassals which was the foundation of allfeudal law.On the other hand, some of the provisions ofour civil liberty, mainly in the interest of individual rights,are plainly present.That private property shall not betaken for public use without just compensation, that crueland unusual punishments shall not be inflicted nor excessiveTHE GREAT CHARTERCHAP.fines be imposed, that justice shall be free and fair to all,these may be found almost in modern form.But it is in none of these directions that the great impor-tance of the document is to be sought.All its specific pro-visions together as specific provisions are not worth, either inthemselves or in their historical influence, the one principlewhich underlies them all and gives validity to them all-theprinciple that the king must keep the law.This it was thatjustified the barons in their rebellion.It was to secure thisfrom a king who could not be bound by the ordinary lawthat the Great Charter was drawn up and its clauses put intothe form in which they stand.In other words, the baronscontended that the king was already bound by the law as itstood, and that former kings had recognized the fact.Inthis they were entirely correct.The Great Charter is oldlaw.It is codification, or rather it is a selection of thosepoints of the existing law which the king had constantly vio-lated, for the purpose of stating them in such form that hisspecific pledge to regard them could be secured, and his con-sent to machinery for enforcing them in case he broke hispledge.The source of the Great Charter, then, of its variousprovisions and of its underlying principle, must be sought inthe existing law that regulated the relations between the kingand the barons -the feudal law.From beginning to end the Great Charter is a feudal docu-ment.The most important of its provisions which cannotbe found in this law, those which may perhaps be called newlegislation, relate to the judicial system as recently developed,which had proved too useful and was probably too firmlyfixed to be set aside, though it was considered by the baronsto infringe upon their feudal rights and had been used in thepast as an engine of oppression and extortion.In this onedirection the development of institutions in England hadalready left the feudal system behind.In financial mattersa similar development was under rapid way, but John s effortto push forward too fast along that line was one cause of theinsurrection and the charter, and of the reaction in this par-ticular which it embodies.As a statement of feudal law theGreat Charter is moderate, conservative, and carefully regard-ful of the real rights of the king.As a document born in CHARACTER OF THE CHARTER439civil strife it is remarkable in this respect, or would be were CHAP.this not true of its progeny in Anglo-Saxon history.ever framed it must have been fair-minded and have held thebalance level between king and insurgents.Its provisionsin regard to wardship and marriage have been called weak.They are not weak; they are just, and as compared with thecorresponding provisions of the charter of Henry they areless revolutionary, and leave to the king what belonged tohim historically-the rights which all English kings had ex-ercised and which in that generation Philip of France alsohad repeatedly exercised, even against John himself.But the chief feature of the Great Charter apart from allits specific enactments, that on which it all rests, is this, thatthe king has no right to violate the law, and if he attempts todo so, may be constrained by force to obey it.That also isfeudal law.It was the fundamental conception of the wholefeudal relationship that the suzerain was bound to respectthe recognized rights of his vassal, and that if he would not,he might be compelled to do so; nor was it in England alonethat this idea was held to include the highest suzerain, thelord paramount of the Clause 61 which to themodern mind seems the most astonishing of the whole char-ter, legalizing insurrection and revolution, contains nothingthat was new, except the arrangement for a body offive barons who were to put into orderly operation theright of coercion.It is certainly not necessary to show byargument the supreme importance of this principle.It isthe true corner-stone of the English constitution.It was thepreservation of this right, its development into new forms tomeet the changing needs of the state, that created and pro-tected constitutional liberty, and it was the supreme serviceof the Great Charter, far beyond any accomplished by anyone clause or by all specific clauses together, to carry overfrom feudalism this right and to make it the fostering prin-ciple of a new growth in which feudalism had noad LL.ed.), ii.ii.75, Bk.i.liii.;Nos.668-672 J.de 200.See The of History, in theTHE GREAT CHARTERCHAP.It may be that the barons believed they were demandingnothing in the Great Charter that had not been granted byformer kings or that the king was not bound by the law toobserve.It may be possible to prove that this belief washistorically correct in principle if not in specific form; butthe king could not be expected to take the same view of thecase.He had been compelled to renounce many things thathe had been doing through his whole reign, and some things,as he very well knew, that had been done by his father andbrother before him.He may honestly have believed that hehad been forced to surrender genuine royal rights.He cer-tainly knew that if he faithfully kept its provisions, the taskof raising the necessary money to carry on the government,already not easy, would become extremely difficult if not impos-sible.It is not likely that John promised to be bound by thecharter with any intention of keeping his promise.He hadno choice at the moment but to yield, and if he yielded, theforces of the barons would probably scatter, and the chancesfavour such a recovery of his strength that with the help ofthe pope he could set the charter aside.At first nothingcould be done but to conform to its requirements, and orderswere sent throughout the country for the taking of the oath inwhich all men were to swear to obey the twenty-five baronsappointed guardians of the charter.Juries were to bechosen to inquire into grievances, and some of the foreigntroops were sent home.Suspicions began to be felt, how-ever, in regard to the intentions of the king during thenegotiations concerning details which followed the signing ofA council called to meet at Oxford about themiddle of July, he refused to attend.Nor were provocationsand violations of the spirit of the charter wanting on the partof the barons [ Pobierz całość w formacie PDF ]