chapter 61, which declares by whom they were to be enforced. John’s

words clearly tell us that the liberties were confirmed “to all freemen of my kingdom and their heirs for ever.” This opens up the crucial question—who were _freemen_ in 1215?

The enthusiasm, natural and even laudable in its proper place, although fatal to historical accuracy in its results, which seeks to enhance the merits of Magna Carta by exalting its provisions and extending their scope as widely as possible, has led commentators to stretch the meaning of “freeman” to its utmost limits. The word has even been treated as embracing the entire population of England, including not only churchmen, merchants, and yeomen, but even villeins as well. There are reasons, however, for believing that it should be understood in a sense much more restricted, although the subject is darkened by the vagueness of the word, and by the difficulty of determining whether it bears any technical signification or not. “Homo,” in medieval law-Latin, has a peculiar meaning, and was originally used as synonymous with "baro"—all feudal vassals, whether of the Crown or of mesne lords, being described as “men” or “barons.” The word was sometimes indeed more loosely used, as may have been the case in chapter 1. Yet Magna Carta is a feudal charter, and the presumption is in favour of the technical feudal meaning of the word—a presumption certainly not weakened by the addition of an adjective confining it to the “free.” This qualifying word certainly excluded villeins, and possibly also the great burgess class, or many of them. There is a passage in the _Dialogus de Scaccario_ (dating from the close of the reign of Henry II.), in which Richard Fitz-Nigel reckons even the richest burgesses and traders as not fully free. He discusses the legal position of any knight (_miles_) or other freeman (_liber homo_) losing his status by engaging in commerce in order to make money.[207] This does not prove that rich townsmen were ranked with the _villani_ of the rural districts; but it does raise a serious doubt whether in the strict legal language of feudal charters the words _liberi homines_ would be interpreted by contemporary lawyers as including the trading classes. Such doubts are strengthened by a narrow scrutiny of those passages of the Charter in which the term occurs. In chapter 34 the _liber homo_ is, apparently, assumed to be a landowner with a private manorial jurisdiction of which he may be deprived. In other words, he is the holder of a freehold estate of some extent—a great barony or, at the least, a manor. In this part of the Charter the “freeman” is clearly a county gentleman.

Footnote 207:

_Dialogus_, II. xiii. c.

Is the “freeman” of chapter 1 something different? The question must be considered an open one; but much might be said in favour of the opinion that “freeman” as used in the Charter is synonymous with “freeholder”; and that therefore only a limited class could, as grantees or the heirs of such, make good a _legal_ claim to share in the liberties secured by Magna Carta.[208]

Footnote 208:

In addition to its appearance in the two places mentioned in the text, the word “freeman” appears in five other chapters, namely 15, 20, 27, 30, and 39. The three last instances throw no light on the meaning of the word, since the context of each would be satisfied either with a broader or with a narrower interpretation. It is different, however, with chapter 15, where the freemen are necessarily the feudal tenants of a mesne lord—that is, freeholders; and with chapter 20, where, in the matter of amercement, the freeman is distinctly contrasted with the _villanus_. Further, where men of servile birth are clearly meant, they are described generally as _probi homines_ (_e.g._ in chapters 20, 29, and 48), and in one place, chapter 26, as _legales homines_.