<h1>XXII <br/> GREAT ORIGINS IN LAW.</h1>
<p>Perhaps the most surprising phase of Thirteenth Century history is
that much of what is most valued and most valuable in our modern laws,
especially as they concern the fundamental rights of man, is to be
found clearly expressed in the great lawmaking of the Thirteenth
Century. It can scarcely fail to astonish those who look upon the
Middle Ages as hopelessly barren in progress, to find that human
liberty in its development reached such a pass before the end of the
Middle Ages, or that any period so long before the Renaissance and the
reformation so-called, could be picked out as representing a
distinctive epoch in supremely liberal legislation. After careful
study, the surprise is apt to be rather that there should have been
comparatively so little advance since that time, seeing how much the
generations of this marvelous century were able to accomplish in
definitely formulating principles of human rights.</p>
<p>The first great document in the laws of the Thirteenth Century is, of
course, Magna Charta, signed in 1215, the foundation of all the
liberties of English speaking people ever since. Perhaps the highest
possible tribute to the Great Charter is the fact that it has grown in
the estimation of intelligent men, rather than lost significance. In
quite recent years it has become somewhat the custom to belittle its
import and its influence. But it must not be forgotten that over and
over again in times of national crises in England, Magna Charta has
been confidently appealed to as a fundamental law too sacred to be
altered, as a talisman containing some magic spell capable of averting
national calamity. Bishop Stubbs said of it, that "the Great Charter
was the first supreme act of the nation after it had realized its own
identity."</p>
<p>Perhaps in nothing does its supremacy as basic legislation for
national purposes so shine forth, as from the fact that it is
not a vague statement of great principles, not a mere declaration of
human rights, not a documentary rehearsal of fundamental legalities,
but a carefully collected series of practical declarations for the
solution of the problems that were then disturbing the peace of the
kingdom, and leading to charge and countercharge of infringement of
right on the part of the king and his subjects. As might have been
expected from the men of the Thirteenth Century—from the generations
who more than any other in all human history succeeded in uniting the
useful with the beautiful in everything from the decoration of their
churches and other great architectural structures to the ordinary
objects of everyday life—it was of eminently practical character.
While it is the custom to talk much of Magna Charta and to praise its
wonderful influence there are very few people who have ever actually
read its provisions. The classics are said to be books that everyone
praises but no one reads, and Magna Charta and the Constitution of the
United States are documents that are joined in the same fate. A little
consideration of some of the chapters of the Charter will give an
excellent idea of its thoroughly straightforward practicalness, though
it may serve also to undeceive those who would expect to find in this
primal document a lofty statement of abstract human rights, such as
the men of the Thirteenth Century were never conscious of, since their
thoughts were always in the concrete and their efforts were bent to
the solution of the problems lying just before them, and not to the
lifting of all the burdens that human nature has to bear.</p>
<p>Before this, of course, there had been some development of legislation
to furnish the basis for what was to come in the Thirteenth Century.
The famous Constitutions of Clarendon under Henry II. and the Assizes
of Clarendon (quite a different matter) and of North Hampton and the
Forest under Henry II., gave assurances of rights that had only
existed somewhat shadily before. According to the Constitutions of
Clarendon sworn men gave their verdict in cases from their own
knowledge. This was, of course, quite a different matter from the
giving of a verdict from knowledge obtained through witnesses at a
trial, but the germ of the jury trial can be seen. It was not,
however, until the next reign that the men of England did not
merely wait for the free gifts of legal rights but demanded and
obtained them. There was a new hitherto undreamt-of spirit abroad in
the Thirteenth Century, by which men dared to ask for the rights they
considered should be theirs.</p>
<p>The opening chapter of Magna Charta states especially the subjects of
the rights that are guaranteed by the document. It is not surprising
then, to find that the first subject is the Church and that the most
extensive guarantees are made that the English Church liberties shall
be inviolate. Churchmen had been largely concerned in the movement
which secured the signing of Magna Charta, and then after all, as must
never be forgotten, the Church at this time was distinctly felt by all
to be the spiritual expression of the religious aspirations of the
people. Over the concluding sentence of this chapter, "the grant of
the unwritten liberties to all freemen of our kingdom," there has been
no little discussion. There are some who would consider that it
applied to all Englishmen above the condition of villeins or serfs,
while there are others who would limit its application practically to
those nobly born in the kingdom. Posterity undoubtedly came to
translate it in the broader sense, so that, whatever the original
intention, the phrase became as a grant eventually to all free
Englishmen.</p>
<p>Chapter I.: "In the first place we have granted to God, and by this
our present charter confirmed for us and our heirs for ever, that the
English Church shall be free, and shall have her rights entire, and
her liberties inviolate; and we will that it be thus observed; which
is apparent from this that the freedom of elections, which is reckoned
most important and very essential to the English Church, we of our
pure and unconstrained will, did grant, and by our charter confirm and
did obtain the ratification of the same from our lord, Pope Innocent
III. before the quarrel arose between us and our barons, and this we
will observe, and our will is that it be observed in good faith by
our heirs for ever. We have also granted to all freemen of our
kingdom, for us and for our heirs for ever, all the underwritten
liberties, to be had and held by them and their heirs, of us and our
heirs for ever."</p>
<p>Perhaps the most interesting feature of Magna Charta is to be
found in the fact, that it did actually in most cases come to be
applied ever so much wider than had apparently been the original
intention. It was in this sense a vital document as it were, since it
had within itself the power of developing so as to suit the varying
circumstances for which recourse was had to it. There is no doubt at
all of the good faith of the men who appealed to it, nor of their firm
persuasion that the document actually intended what they claimed to
find in it. Modern criticism has succeeded in stripping from the
original expressions many of the added meanings that posterity
attached to them, but in so doing has really not lessened the
estimation in which Magna Charta must be held.</p>
<p>The position is indeed noteworthily analagous to that of the original
deposit of faith and the development of doctrine which has taken
place. Higher criticism has done much to show how little of certain
modern ideas was apparently contained explicitly in the original
formulas of Christian faith, and yet by so doing has not lessened our
beliefs, but has rather tended to make us realize the vitality of the
original Christian tenets. As everything living in God's creation,
they have developed by a principle implanted within them to suit the
evolutionary conditions of man's intelligence and the developing
problems that they were supposed to offer solutions for. The
comparison, of course, like all comparisons, must walk a little lame,
since after all Magna Charta is a human document, and yet the very
fact that it should have presented itself under so many varying
conditions, ever with new significance to succeeding generations of
thinking men, is the best evidence of how nearly man's work at its
best may approach that of the Creator. It is an exemplification, in a
word, of the creative genius of the century, a worthy compeer of the
other accomplishments which have proved so enduring and so capable of
making their influence felt even upon distant generations.</p>
<p>It is of the very essence of the practicality of Magna Charta that
among the early chapters of the important document—Chapter VII.—is
one that concerns widows and their property rights immediately after
the death of their husbands. Previous chapters had discussed questions
of guardianship and inheritance, since it was especially minors who in
this rude period were likely to suffer from the injustice of the
crown, of their over-lords in the nobility, and even from their
guardians. While Magna Charta, then, begins with the principles for
the regulation of matters of property as regards children, it proceeds
at once to the next class most liable to injustice because of their
inability to properly defend themselves by force of arms—the widows.</p>
<p>Chapter VII.: "A widow, after the death of her husband, shall
forthwith and without difficulty have her marriage portion and
inheritance; nor shall she give anything for her dower or for her
marriage portion, or for the inheritance which she and her husband
held on the day of the death of that husband; and she may remain in
the house of her husband for forty days after his death, within which
time her dower shall be assigned to her."</p>
<p>Chapter VIII.: "Let no widow be compelled to marry, so long as she
prefers to live without a husband; provided always that she gives
security not to marry without our consent, if she holds of us, or
without the consent of the lord of whom she holds, if she holds of
another."</p>
<p>The first of these provisions serves to show very well how early in
the history of English jurisprudence a thoroughgoing respect for
woman's legal rights began to have a place. The beginning Thirteenth
Century made an excellent start in their favor. For some reason the
movement for justice thus initiated did not continue, but suffered a
sad interruption down almost to our own times.</p>
<p>The second of these provisions for widows, embodied in Chapter VIII.,
sounds a little queer to the modern ear. This protection of widows
from compulsion to marry is apt to seem absolutely unnecessary in
these modern days. Some of the unmarried are indeed prone to think,
perhaps, that widows have more than their due opportunity in this
matter without any necessity for protecting them from compulsion. Of
course it is to be understood that it was not always so much the
charms of the lady herself that must be protected from compulsion, as
those of the property which she inherited and the political and
martial influence that she might be expected to bring her husband. In
these troublous times when disputes with appeals to arms were
extremely frequent, it was important to have the regulation, that
after the death of a husband there should be no sudden unbalancing of
political power because of the compelled marriage of the widow of some
powerful noble.</p>
<p>In certain subsequent chapters up to the twelfth there is question
mainly of the rights of the Jews, as money-lenders, to collect their
debts with interest after the death of the principal to whom it was
loaned. For instance, according to Chapter X., the debt shall not bear
interest while the heir is under age and if the debt fell to the hands
of the crown, nothing but the principal was to be taken. In Chapter
XI. if any one died indebted to the Jews his wife should have her
dower and pay nothing of that debt. For children under age the same
principle held and they had a right to the provision of necessaries in
keeping with the condition of their father. This last clause has been
perpetuated in the practice of our courts, as some consider even to
the extent of an abuse, so that debtors cannot collect from the income
of a young man to whom money has been left, if by so doing the income
should be impaired to such an extent as to make his method of living
unsuitable to the condition in life to which he was born and brought
up.</p>
<p>Chapter XII. has been the subject of more discussion perhaps than any
other. McKechnie, the most recent commentator on Magna Charta, says of
it: [Footnote 29]</p>
<p class="footnote">
[Footnote 29: Magna Carta, a Commentary on the Great Charter of King
John, with an Historical Introduction by William Sharp McKechnie,
M.D., LL.B., D. Phil. Glasgow, James Maclehose and Sons, Publishers
to the University, 1905.]</p>
<p class="cite">
"This is a famous clause, greatly valued at the time it was framed
because of its precise terms and narrow scope (which made evasion
difficult), and even more highly valued in after days for exactly
opposite reasons. It came indeed to be interpreted in a broad
general sense by enthusiasts who, with the fully-developed British
constitution before them, read the clause as enunciating the modern
doctrine that the Crown can impose no financial burden whatsoever on
the people without consent of Parliament."</p>
<p>Readers may judge for themselves from the tenor of the chapter,
how wide a latitude in interpretation it not only permits, but
invites.</p>
<p>Chapter XII.: "No scutage nor aid shall be imposed in our kingdom,
unless by common counsel of our kingdom, except for ransoming our
person, for making our eldest son a knight, and for once marrying our
eldest daughter; and for these there shall not be levied more than a
reasonable aid. In like manner it shall be done concerning aids from
the citizens of London."</p>
<p>There is no doubt that it is hard to read in this chapter all that has
been found in it by enthusiastic appellants to Magna Charta at many
times during the succeeding centuries. As a matter of fact, however,
within half a century after it had been promulgated, it was appealed
to confidently as one of the reasons why an English Parliament should
meet if the King required special levies of money for the purpose of
carrying on war. It was during the sixth and seventh decades of the
Thirteenth Century that the great principle of English Legislation:
"There shall be no taxation without representation"—which six
centuries later was to be appealed to by the American Colonies as the
justification for their war for independence, gradually came to be
considered as a fundamental principle of the relationship between the
government and the people. That it had its origin in Magna Charta
there seems no doubt, and it is only another example of that
unconscious development of a vital principle which, as we know from
History, took place so often with regard to chapters of the Great
Charter.</p>
<p>Undoubtedly one of the most important chapters of Magna Charta is the
very brief one, No. 17, which concerns itself with the holding of a
Court of Common Pleas. The whole of the chapter is, "Common Pleas
shall not follow our Court but shall be held in some fixed place."
This represented a distinct step in advance in the dispensing of
justice. It is a little bit hard for us to understand, but all
departments of government were originally centered in the king and his
household—the court—which attended to royal and national business of
every kind. As pointed out by Mr. McKechnie in his Magna Charta, the
court united in itself the functions of the modern cabinet of the
administrative department—the home office, the foreign office and the
admiralty, and of the various legal tribunals. It was the parent
of the Court at St. James and the courts at Westminster. Almost
needless to say, it is from the fact that the dispensing of justice
was a function of royalty, that the places of holding trials are still
called courts.</p>
<p>According to this chapter of Magna Charta, thereafter ordinary trials,
Common Pleas, did not have to follow the Court, that is the royal
household, in its wanderings through various parts of the kingdom, but
they were held at an appointed place. In the days of Henry II. the
entire machinery of royal justice had to follow the monarch as he
passed, sometimes on the mere impulse of the moment, from one of his
favorite hunting-seats to another. Crowds thronged after him in hot
pursuit, since it was difficult to transact business of moment before
the court without being actually present. This entailed almost
intolerable delay, extreme annoyance and great expense upon litigants,
who brought their pleas for the king's decision. There is an account
of the hardships which this system inflicted upon suitors told of one
celebrated case. Richard D'Anesty gives a graphic record of his
journeyings in search of justice throughout a period of five years,
during which he visited in the king's wake most parts of England,
Normandy, Aquitaine, and Anjou. Ultimately successful he paid dearly
for his legal triumph. He had to borrow at a ruinous rate of interest
in order to meet his enormous expenses, mostly for traveling, and was
scarcely able to discharge his debts.</p>
<p>All litigation then, that did not directly involve the crown or
criminal procedures, could be tried thereafter by a set of judges who
sat permanently in some fixed spot, which though not named was
probably intended from the beginning to be Westminster. Hence it has
been said by distinguished English jurists that Magna Charta gave
England a Capital. On the other hand Chapter XXIV. insured justice in
criminal cases by reserving these pleas to judges appointed by the
crown. This short chapter reads: "No sheriff, constable, coroner, or
others of our bailiffs shall hold pleas of our Crown." This last
expression did not necessarily mean matters concerned with royal
business as might be thought, but had in King John's time come to
signify criminal trials of all kinds. It is easy to understand that
those accused of crime would look confidently for justice to the
representative of the central government, while they dreaded the
jurisdiction of the less responsible officials resident in the
counties, who had a wide-spread reputation for cruelty and oppression,
and for a venality that it was hard to suppress.</p>
<p>It would seem as though these quotations would serve to make even the
casual reader appreciate how thoroughly Magna Charta deserves the
reputation which it has borne now for nearly seven centuries, of an
extremely valuable fundamental document in the history of the
liberties of the English speaking people. Some of the subsequent
chapters may be quoted without comment because they show with what
careful attention to detail the rights of the people were guaranteed
by the Charter, and how many apparently trivial things were considered
worthy of mention. We may call attention to the fact that in Chapters
forty-one and forty-two there are definite expressions of guarantee
for the rights even of aliens, which represent a great advance over
the feelings in this respect that had animated the people of a century
or so before, and foreshadow the development of that international
comity which is only now coming to be the distinguishing mark of our
modern civilization.</p>
<p class="cite">
"A freeman shall not be amerced for a small offence, except in
accordance with the degree of the offence; and for a grave offence
he shall be amerced in accordance with the gravity of his offence,
yet saving always his 'contentment'; and a merchant in the same way,
saving his wares; and a villein shall be amerced in the same way,
saving his wainage—if they have fallen into our mercy; and none of
the aforesaid amercements shall be imposed except by the oath of
honest men of the neighborhood.
<br/><br/>
"If any freeman shall die intestate, his chattels shall be
distributed by the hands of the nearest kinsfolk and friends, under
the supervision of the church, saving to everyone the debts which
the deceased owed to him.
<br/><br/>
"No constable or other bailiff of ours shall take corn or other
provisions from anyone without immediately tendering money therefor,
unless he can have postponement thereof by permission of the seller.
<br/><br/>
"No sheriff or bailiff of ours, or any other person shall take
the horses or carts of any freeman for transport duty, against the
will of the said freeman.
<br/><br/>
"All kydells for the future shall be removed altogether from the
Thames and Medway, and throughout all England, except upon the sea
coast.
<br/><br/>
"Nothing in the future shall be taken or given for a writ of
inquisition of life or limbs, but freely it shall be granted, and
never denied.
<br/><br/>
"No bailiff for the future shall put any man to his 'law' upon his
own mere word of mouth, without credible witnesses brought for this
purpose.
<br/><br/>
"No freeman shall be arrested or detained in prison, or deprived of
his freehold, or outlawed, or banished, or in any way molested, and
we will not set forth against him, nor send against him, unless by
the lawful judgment of his peers and by the law of the land.
<br/><br/>
"To no one will we sell, to no one will we refuse or delay, right or
justice.
<br/><br/>
"All merchants shall have safe and secure exit from England, and
entry to England, with the right to tarry there and to move about as
well by land as by water, for buying and selling by the ancient and
right customs, quit from all evil tolls, except (in time of war)
such merchants as are of the land at war with us. And if such are
found in our land at the beginning of the war, they shall be
detained without injury to their bodies or goods, until information
be received by us, or by our chief justiciar, how the merchants of
our land found in the land at war with us are treated and if our men
are safe there, the others shall be safe in our land.
<br/><br/>
"It shall be lawful in future for any one (excepting always those
imprisoned or outlawed in accordance with the law of the kingdom,
and natives of any country at war with us, and merchants, who shall
be treated as is above provided) to leave our kingdom, and to
return, safe and secure by land and water, except for a short period
in time of war, on grounds of public policy—reserving always the
allegiance due to us.
<br/><br/>
"We will appoint as justices, constables, sheriffs or bailiffs only
such as know the law of the realm and mean to observe it well.</p>
<p class="cite">
"We shall have, moreover, the same respite and the same manner in
rendering justice concerning the disafforestation or retention of
those forests which Henry our father and Richard our brother
afforested and concerning the wardship of lands which are of the
fief of another (namely, such wardships as we have hitherto had by
reason of a fief, which any one held of us by knight's service) and
concerning abbeys founded on other fiefs than our own, in which the
lord of the fee claims to have right; and when we have returned, or
if we desist from our expedition, we will immediately grant full
justice to all who complain of such things.
<br/><br/>
"All fines made with us unjustly and against the law of this land,
and all amercements imposed unjustly and against the law of this
land, shall be entirely remitted, or else it shall be done
concerning them according to the decision of the five and twenty
barons of whom mention is made below, in the clause for securing the
peace, or according to the judgment of the majority of the same,
along with the aforesaid Stephen Archbishop of Canterbury, if he can
be present, and such others as he may wish to bring with him for
this purpose, and if he cannot be present the business shall
nevertheless proceed without him, provided always that if any one or
more of the aforesaid five and twenty barons are in a similar suit,
they shall be removed as far as concerns this particular judgment,
others being substituted in their places after having been selected
by the rest of the same five and twenty for this purpose only, and
after having been sworn.
<br/><br/>
"Moreover, all the aforesaid customs and liberties, the observance
of which we have granted in our kingdom as far as pertains to us
towards our men, shall be observed by all of our kingdom, as well by
clergy as by laymen, as far as pertains to them towards their men.
<br/><br/>
"And, on this head, we have caused to be made out letters patent of
Stephen, Archbishop of Canterbury, Henry, Archbishop of Dublin, the
bishops aforesaid, and Master Pandulf, as evidence of this clause of
security and of the aforesaid concessions."</p>
<p>These last provisions show how closely the Church was bound up with
the securing and maintenance of the rights of the English
people. The clauses we have quoted just before, need no comment to
show how sturdily the spirit of liberty strode abroad even at the
beginning of the Thirteenth Century, for Magna Charta was signed in
1215. The rest of the century was to see great advances in liberty and
human rights, even beyond the guarantees of the Great Charter.</p>
<p>Magna Charta, glorious as it was, was only the beginning of that basic
legislation which was to distinguish the Thirteenth Century in
England. About the middle of the century Bracton began his collection
of the laws of the land which has since been the great English classic
of the Common Law. His work was accomplished while he was the Chief
Justiciary during the reign of Henry III. For many years before he had
occupied various judicial positions, as Justice Itinerant of the
counties of Nottingham and Derby and for seventeen years his name
appears as one of the justices of the Aula Regis. This experience put
him in an eminently fitting position to be the mouthpiece of English
practice and law applications, and his book was at once accepted as an
authority. It is a most comprehensive and systematic work in five
volumes, bearing the title De Legibus et Consuetudinibus Angliae, and
was modeled after the Institutes of Justinian.</p>
<p>It was during the reign of Edward I., the English Justinian as he has
been called, that the English Common Law came to its supreme
expression, and this monarch has rightly been placed among the great
benefactors of mankind for his magnanimous generosity in securing the
legal rights of his subjects and framing English liberties for all
time. Not a little of Edward's greatness as a law-maker and his
readiness to recognize the rights of his subjects, with his consequent
willingness to have English law arranged and published, must be
attributed to his connection during his earlier years as Prince of
Wales with the famous Simon De Montfort. To this man more than to any
other the English speaking people owe the development of those
constitutional rights, which gradually came to be considered
inalienably theirs during the Thirteenth Century. He is undoubtedly
one of the very great characters of history and the Thirteenth Century
is by so much greater for having been the scene of his labors, during
so many years, for the establishment of constitutional
limitations to the power of the monarch, and the uplifting of the
rights of subjects not only among the nobility, but also among the
lower classes.</p>
<p>It was in Edward's time that the English Common Law was fashioned into
the shape in which it was to exist for many centuries afterwards. How
true this is may perhaps best be judged by the fact that even the laws
with regard to real estate have not been changed in essence since that
time, though medieval titles to land would seem to be so different to
those of the present day. According to the Encyclopedia Britannica the
changes which have been made since that time have been mainly due to
the action of equity and legislation, the latter sometimes interpreted
by the courts in a manner very different from the intention of
Parliament. The same authority is responsible for the statement that
the reign of Edward I., is notable for three leading real estate
statutes which are still law. One of these was with regard to
Mortmain, while the important statute known as <i>Quia Emptores</i> (the
eighteenth of Chapter I. of the Laws of Edward I.) had the practical
effect of making the transfer of land thenceforward, more of a
commercial and less of a legal transaction. It is to this same period
that is owed the writ <i>Elegit</i> which introduced the law practice of a
creditor's remedy over real estate. How little was accomplished in the
matter of law-making in subsequent centuries, may be gathered from the
fact that Mr. James Williams who writes the article on real estate in
the Encyclopedia Britannica ninth edition, says that from 1290 to the
reign of Henry VIII., that is down to the Sixteenth Century, there is
no statute of the first importance dealing with real estate.</p>
<p>In a word, then, it may be said that these law-makers of the
Thirteenth Century anticipated most of the legal difficulties of the
after-time. Their statutory provisions, as in the case of the chapters
of Magna Charta, seemed originally only to have a narrow application
to certain urgent legal questions of the time, but proved eventually
to contain in themselves the essence of legal principles that could be
applied in circumstances such as the original law-maker had not even
imagined. This is indeed the typical triumph of the century in every
line of endeavor, that while apparently it devoted itself only to the
narrow problems of its own time, its solutions of them whether
in art and architecture or decoration, in literary expression or
poetic effectiveness, in educational methods or social uplift, always
proved so complete, so thoroughly human in the broadest sense of that
word and so consonant with development, that their work did not have
to be done over again. No greater praise than this could be bestowed.</p>
<p class="image">
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SPIRE OF ST. ELIZABETH'S (MARBURG)</p>
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