CHAPTER II. THE SUBMERGENCE OF ENGLAND
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.
Yet a governing class, planted by Henry II, was striking root in English soil and drawing nourishment and inspiration from English feelings. It was reinforced by John's loss of Normandy, which compelled bi-national barons who held lands in both countries to choose between their French and English sovereigns; and those who preferred England became more English than they had been before. The French invasion of England, which followed John's repudiation of the charter, widened the cleavage; and there was something national, if little that was English, in the government of Hubert de Burgh, and still more in the naval victory which Hubert and the men of the Cinque Ports won over the French in the Straits of Dover in 1217. But not a vestige of national feeling animated Henry III; and for twenty-five wearisome years after he had attained his majority he strove to govern England by means of alien relatives and dependents.
The opposition offered by the great council was baronial rather than national; the revolt in which it ended was a revolt of the half-breeds rather than a revolt of the English; and the government they established in 1258 was merely a legalized form of baronial anarchy. But there was this difference between the anarchy of Stephen's reign and that of Henry III's: now, when the foreigners fell out, the English began to come by their own. A sort of "young England" party fell foul of both the barons and the king; Simon de Montfort detached himself from the baronial brethren with whom he had acted, and boldly placed himself at the head of a movement for securing England for the English. He summoned representatives from cities and boroughs to sit side by side with greater and lesser barons in the great council of the realm, which now became an English parliament; and for the first time since the Norman Conquest men of the subject race were called up to deliberate on national affairs. It does not matter whether this was the stroke of a statesman's genius or the lucky improvisation of a party-leader. Simon fell, but his work remained; Prince Edward, who copied his tactics at Evesham, copied his politics in 1275 and afterwards at Westminster; and under the first sovereign since the Norman Conquest who bore an English name, the English people received their national livery and the seisin of their inheritance.