Читать книгу Magna Carta: A Commentary on the Great Charter of King John. With an Historical Introduction онлайн

186 страница из 194

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.