Classic History Books


The History of England by A. E. Pollard

you were not as other men; the barons would have eared little for liberties which they had to share with
the common herd. To them liberty meant privilege and monopoly; it was not a general right to be

enjoyed in common. Now Magna Carta is a charter not of "liberty," but of "liberties"; it guaranteed to

each section of the coalition those special privileges which Henry II and his sons had threatened or taken

away. Some of these liberties were dangerous obstacles to the common welfare - for instance the

"liberty" of every lord of the manor to try all suits relating to property and possession in his own

manorial court, or to be punished by his fellow-barons instead of by the judges of the king's court. This

was what the barons meant by their famous demand in Magna Carta that every man should be judged by

his peers; they insisted that the royal judges were not their peers, but only servants of the crown, and

their demands in these respects were reactionary proposals which might have been fatal to liberty as we

conceive it.

Nor is there anything about trial by jury or "no taxation without representation" in Magna Carta. What
we mean by "trial by jury" was not developed till long after 1215; there was still no national, but only

class taxation; and the great council, which was to give its assent to royal demands for money,

represented nobody but the tenants-in-chief of whom it was composed. All that the barons meant by this

clause was that they, as feudal tenants-in-chief, were not to pay more than the ordinary feudal dues. But

they left to the king, and they reserved to themselves, the right to tallage their villeins as arbitrarily as

they pleased; and even where they seem to be protecting the villeins, they are only preventing the king

from levying such judicial fines from their villeins as would make it impossible for those villeins to

render their services to the lords. It was to be no affair of the king or nation if a lord exacted the

uttermost farthing from his own chattels; legally, the villeins, who were the bulk of the nation, remained

after Magna Carta, as before, in the position of a man's ox or horse to-day, except that there was no law

for the prevention of cruelty to animals. Finally, the provision that no one was to be arrested until he had

been convicted would, if carried out, have made impossible the administration of justice.

On the other hand, the provisions for the fixing of the court of common pleas at Westminster, for
standard weights and measures, for the administration of law by men acquainted with English customs,

and some others were wholesome reforms. The first clause, guaranteeing that the church should be free

from royal (not papal) encroachments, was sound enough when John was king, and the general restraint

of his authority, even in the interests of the barons, was not an unmixed evil. But it is as absurd to think

that John conceded modern liberty when he granted the charter of medieval liberties, as to think that he

permitted some one to found a new religion when he licensed him to endow a new religious house

(novam religionem); and to regard Magna Carta as a great popular achievement, when no

vernacular version of it is known to have existed before the sixteenth century, and when it contains

hardly a word or an idea of popular English origin, involves complete misunderstanding of its meaning

and a serious antedating of English nationality.

At no time, indeed, did foreign influence appear more dominant in English politics than during the
generation which saw Richard I surrender his kingdom to be held as a fief of the empire, and John

surrender it to be held as a temporal fief of the papacy; or when, in the reign of Henry III, a papal legate,

Gualo, administered England as a province of the Papal States; when a foreign freebooter was sheriff of

six English shires; and when aliens held in their hands the castles and keys of the kingdom. It was a dark

hour which preceded the dawn of English nationality, and so far there was no sign of English indignation

at the bartering of England's independence. Resistance there was, but it came from men who were only a

degree less alien than those whose domination they resented.

 

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