This is a long document of sixty chapters and represents the extreme form of the baronial demands. The next ten years saw the progressive shortening of the Charter by omitting much that was temporary, by putting the important clauses concerning the forests into a separate document (called the Charter of the Forest), and by pruning the excesses of the victorious barons. John obtained a bull from his new over-lord, the Pope, annulling the charter.1 Indeed, some of its provisions were much too extreme, particularly the last, which erected a commission of twenty-five barons with power to enforce the Charter by coercing the King. The Great Charter of 1215 was therefore actually law for only about nine weeks. The King died shortly after (1216).
The council who ruled in the name of the infant Henry III re-issued the charter in 1216 (this time with papal assent) very much modified in favour of the Crown, with a promise to re-open the question when the French invasion, undertaken at the will of the rebel barons, had been defeated. This promise they fulfilled in 1217 on the occasion of the treaty whereby Prince Louis withdrew, and this, the third, Great Charter contains “numerous, important, and minute” changes whose general tendency was again in favour of the Crown. It was felt that the boy King ought not to suffer for his father’s sins, and that the difficult period of a minority was no time to weaken the central government; in any case, it was a committee of nobles who actually ruled in Henry’s name and any limitation on his power would only make their task of governing the harder. Hence the successive compromises of 1216 and 1217. At length, in 1225, Henry III came of age and issued the fourth Great Charter which differed from the third in slight details only. This is the document which is still law (except in so far as it has been repealed) and is cited by the old authors as the charter or statute of the ninth year of Henry III. It was not enrolled until many years later when, in 1297, it was put on the statute roll (word for word, except one slight slip), and so is also sometimes cited as the statute Confirmatio Cartarum of 25 Edward I.2 On numerous later occasions during the middle ages it was solemnly confirmed and from that day to this has been held in the deepest respect both in England and in America. After all these revisions Magna Carta as it now stands on the statute books of common law jurisdictions is a sober, practical, and highly technical document. A complete understanding of all its provisions would require a whole volume upon numerous aspects of mediaeval law and administration; for our present purpose the following summary will suffice.3
CONSTITUTIONAL PROVISIONS.
“First, we have granted to God, and by this our present charter have confirmed for us and our heirs for ever, that the English Church shall be free and shall have all her rights and liberties, whole and inviolable. We have also given and granted to all the freemen of our realm, for us and our heirs for ever, these liberties underwritten, to have and to hold to them and their heirs, of us and our heirs for ever (Chapter 1; note the formulas of a conveyance of real property which are here used).
“The City of London shall have all her old liberties and customs. And moreover we will and grant that all other cities, boroughs, towns... and ports shall have all their liberties and free customs” (Chapter 9).
“No freeman shall be taken or imprisoned, or disseised of his free tenement, liberties or free customs, or outlawed or exiled or in any wise destroyed, nor will we go upon him, nor will we send upon him, unless by the lawful judgment of his peers, or by the law of the land. To none will we sell, deny, or delay right or justice” (Chapter 29). These words have provoked centuries of discussion. Originally, it seems, “the law of the land” covered all the usual modes of trial, whether it be by indictment, petty jury, appeal or compurgation. “Trial by peers”, on the other hand, was undoubtedly an importation from continental feudal law, and was the solemn trial of a vassal by his fellow-vassals in the court of their lord.1 It has always been rather rare, and is apt to have a political aspect. King John himself was tried by his peers in the court of King Philip of France who was his overlord in respect of the lands held by John in France. In certain cases an English peer could claim to be tried by members of the House of Lords, either in Parliament or in the Court of the Lord High Steward. As time went on the phrase was given a newer and wider meaning. We find for example that a knight accused of felony will claim successfully a jury composed of knights.2 Later still the notion will get abroad that “trial by peers” means trial by jury, which it certainly did not at the time when the charter was first made.
THE REGULATION OF FEUDAL INCIDENTS.
The numerous feudal incidents of relief, wardship, marriage, and the rights of widows, were regularised to prevent the oppression which had grown up during the reign of King John. These reforms applied also to the relations between the barons and their undertenants, and form the basis of a great deal of feudal law (Chapters 2-6, 10).
RESTRAINTS ON THE PREROGATIVE.
“The writ called praecipe shall not be used in the future to deprive any lord of his court”3 (Chapter 24). Purveyance and the forfeiture of lands for felony were likewise regulated (Chapters 19, 21, 22).
THE REGULATION OF THE COURTS.
“Common pleas shall not follow our court but shall be held in some certain place” (Chapter 11). The taking of the assizes was ordered for regular terms every year and was to be in the proper counties. Sheriffs was forbidden to hold pleas of the Crown. The County Court was also regulated and ordered to be held not more than once a month (Chapters 11-14, 17, 28, 35).
THE LAW OF LAND.
The rights of widows were protected and landowners were forbidden to alienate so much of their land that the lord of the fee suffered detriment; and finally, collusive gifts to the Church (which were frequently made in order to evade feudal service) were forbidden (Chapters 7, 32, 36).
TRADE AND COMMERCE.
The sureties of the King’s debtors were not to be liable until after the default of the principal debtor, and were to have the lands of the debtor until they were satisfied for what they had paid for him. There was to be one system of weights and measures throughout the land, and foreign merchants were to be allowed free entry except in war-time, their treatment depending upon the treatment of English merchants abroad (Chapters 8, 25, 30).
From this it will be seen that the provisions of the Great Charter which became permanent were those of a practical nature, while the revolutionary machinery invented by the barons to supersede the Crown was quickly dropped as unworkable and contrary to the current of English history.
The Great Charter was by no means unique in European history. Many kings and nobles about this time were granting charters to their tenants and subjects, and their general character was not dissimilar even in different countries. It has even been suggested that Spanish influence can be traced in our own Charter.1 In 1222 Hungary obtained a very similar charter.2 The difference between the English Charter and these other documents lies not in its contents but in the use made of it in subsequent history. The Charter gradually grew bigger than the mere feudal details which it contained and came to be a symbol of successful opposition to the Crown which had resulted in a negotiated peace representing a reasonable compromise. As time went on, therefore, the Charter became more and more a myth, but nevertheless a very powerful one, and in the seventeenth century all the forces of liberalism rallied around it. The great commentary upon it by Sir Edward Coke in the beginning of his Second Institute became the classical statement of constitutional principles in the seventeenth century, and was immensely influential in England, America and, later still, in many other countries as well.3 To explode the “myth” of the Greater Charter is indeed to get back to its original historical meaning, but for all that, the myth has been much more important than the reality, and there is still something to be said for the statement that “the whole of English constitutional history is a commentary upon the Great Charter”.4
Its immediate result, apart from the reforms contained in it,