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, was to familiarise people with the idea that by means of a written document it was possible to make notable changes in the law. Within the period of ten years, four successive charters had made numerous changes in law and procedure. Was not this an indication that many other difficult questions might be settled in a similar manner? And as a matter of fact we soon find a stream of legislation beginning to appear, which we shall describe later.
THE BARONS’ WARS
The rest of the reign of Henry III is notable chiefly for the revolt of the barons in 1258, which repeats the main outlines of the revolt against King John. The results also were similar. A revolutionary organisation was set up by the barons with the idea of reducing the Crown to complete powerlessness; and this, like the previous attempt in 1215, had soon to be abandoned. But in this later struggle the barons had been dependent to a considerable extent upon the assistance of smaller landowners who also had to be satisfied by a measure of reform. Recent work on this period has shown how largely it was concerned with legal problems, and to lawyers there are two especial reasons for studying the baronial revolt with care. First, it was the age of Bracton,1 who ceased to revise his great treatise just as the crisis approached; and secondly, it was the one occasion in English history when the laity carried out vi et armis an important and complicated programme of law reform. Its full significance can hardly yet be appreciated, but recent research has already shown that the development of the forms of action, and especially trespass, during this period is of importance,2 that the working of the law of seisin was also the cause of difficulty,3 and that the abuse of the lord’s right of extra-judicial distress—“the beginning of all wars,” as Simon de Montfort called it4—was a problem of great urgency. Many of the reforms the victorious barons effected were continued after the fall of Simon de Montfort and became the Statute of Marlborough, 1267. Even before his accession Prince Edward took part in this post-war period of reconstruction, and the Statute of Marlborough is therefore really a part of the great programme of law reform which was carried out in the reign of Edward I.
EDWARD I TO RICHARD II: STATUTES AND SOCIAL REVOLUTION
SUMMARY
