CHAPTER SIXTY.

Omnes autem istas consuetudines predictas et libertates quas nos concessimus in regno nostro tenendas quantum ad nos pertinet erga nostros, omnes de regno nostro, tam clerici quam laici, observent quantum ad se pertinet erga suos.

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 clergy as laymen, as far as pertains to them towards their men.

It would have been as impolitic as it was obviously unfair for the barons, in their capacity of mesne lords, to inflict upon their own tenants—the men without whose support they would have been powerless at Runnymede—those very exactions which they compelled the king to abjure as against themselves. Accordingly, the benefit of the same “customs and liberties” conceded by John to his feudal tenants was—in a somewhat perfunctory manner it is true—extended also to the feudal tenants of all other magnates, whether cleric or lay. Although the reference to “customs and liberties” was quite general in its terms, it seems natural to infer that feudal grievances were chiefly, if not exclusively, intended, since the view of society indicated is feudal rather than national, and this is quite in keeping with many other clauses of the Charter.

These considerations suggest that too wide and liberal a view has sometimes been taken of the scope of this chapter. Coke treated it as affecting not merely freeholders, but the whole mass of the people, and as enunciating a doctrine of mutual responsibility between the king and his subjects. “This is the chief felicity of a kingdom, when good laws are reciprocally of prince and people (as is here undertaken) duly observed.”[1063] In this view he has had many followers, and the present chapter has received undue emphasis as supporting a democratic interpretation of Magna Carta.[1064] It has sometimes been referred to as “the only clause which affects the whole body of the people.”[1065] The better view is that its provisions were confined to freeholders.

Footnote 1063:

_Second Institute_, 77.

Footnote 1064:

Cf. _supra_, 133–4.

Footnote 1065:

Thomson, _Magna Charta_, 269, and authorities there cited.

Even authors who interpret the chapter in this restricted application are still prone to exaggerate its importance. Two opposite lines of comment, in favour respectively with historians of two different schools, seem equally in need of supplement. (1) This clause is sometimes regarded as springing directly from the barons’ own uncontrolled initiative. Dr. Stubbs takes this view, contrasting its substance with similar restraints imposed by Henry I. on the barons by his Charter of Liberties, and emphasizing as specially notable the fact that the present clause was “adopted by the lords themselves.”[1066] Such praise is unmerited; the barons had no option, since the omission of provisions to this effect would have been a glaring absurdity and a most imprudent act. (2) On the other hand, credit for the clause, equally unwarranted, has been sometimes bestowed on John. Dr. Robert Henry says that “this article, which was highly reasonable, was probably inserted at the desire of the king.”[1067]

Footnote 1066:

_Const. Hist._, I. 570. Cf. _supra_, 139–140.

Footnote 1067:

_History of Great Britain_, VI. 74. (6th edition, 1823). See also S. Henshall, _History of South Britain_, cited by Thomson, _Magna Charta_, 268-9.

The substance of this chapter appears in the reissues of 1217 and 1225; but its force is there greatly impaired by the addition of a new clause inconsistent with its spirit, reserving to archbishops, bishops, abbots, priors, templars, hospitallers, earls, barons, and all other persons as well ecclesiastical as secular, all the franchises and free customs they previously had.[1068] The chief object of this was presumably to make it clear that Magna Carta, while conferring benefits, took nothing away; but it would naturally be interpreted as a saving clause in favour of aristocrats in their relations with their dependants (“_erga suos_”) as well as with the Crown, thus modifying the clause which immediately preceded it.

Footnote 1068:

See c. 46 of 1217.

Footnote 1069:

The words “_in perpetuum_” are written at the foot of one of the Cottonian versions. See _supra_, 195, n.