Magna Carta: A Commentary on the Great Charter of King John

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Title: Magna Carta: A Commentary on the Great Charter of King John - With an Historical Introduction
Author: McKechnie, William Sharp
Language: English
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MAGNA CARTA

A COMMENTARY ON THE GREAT CHARTER
OF KING JOHN

PUBLISHED BY

JAMES MACLEHOSE AND SONS, GLASGOW
=Publishers to the University.=

---

MACMILLAN AND CO., LTD., LONDON.

_New York_, _The Macmillan Co._
_London_, _Simpkin, Hamilton and Co._
_Cambridge_, _Macmillan and Bowes_.
_Edinburgh_, _Douglas and Foulis_.
_Sydney_, _Angus and Robertson_.

MCMV.

MAGNA CARTA
A COMMENTARY ON THE GREAT
CHARTER OF KING JOHN

WITH AN
HISTORICAL INTRODUCTION

WILLIAM SHARP McKECHNIE

M.A., LL.B., D.PHIL.

LECTURER ON CONSTITUTIONAL LAW AND HISTORY IN THE UNIVERSITY OF GLASGOW
AUTHOR OF ‘THE STATE AND THE INDIVIDUAL; AN INTRODUCTION TO POLITICAL
SCIENCE’

GLASGOW
JAMES MACLEHOSE AND SONS
PUBLISHERS TO THE UNIVERSITY
1905

GLASGOW: PRINTED AT THE UNIVERSITY PRESS
BY ROBERT MACLEHOSE AND CO. LTD.

TO THE

MEMORY OF MY FATHER

WILLIAM McKECHNIE, M.D.

BORN 1ST APRIL, 1814

DIED 2ND SEPTEMBER, 1887

PREFACE

No Commentary upon Magna Carta has hitherto been written from the
standpoint of modern research. No serious attempt has yet been made to
supersede, or even adequately to supplement, the works of Coke and
Richard Thomson, published respectively in 1642 and 1829, and now
hopelessly out of date. This lack of enterprise may be due in part to a
natural reluctance to undertake so laborious a task, but seems also to
suggest tacit acquiescence in the opinion of Bishop Stubbs that no
separate commentary is required, since “the whole of the constitutional
history of England is little more than a commentary on Magna Carta.”
Yet, for that very reason the Great Charter is surely worthy to be made
the subject of special and detailed study, since few documents can
compete with it in the variety and interest of its contents, in the
vividness of its historical setting, or in the influence it has
exercised on the struggle for constitutional liberty. That this
conspicuous gap in our historical and legal literature should have
remained so long unfilled is the more remarkable in view of the great
advance, amounting almost to a revolution, which has been effected since
Coke and Thomson wrote. Within the last twenty years, in especial, a
wealth of new material has been explored with notable results.
Discoveries have been made, profoundly affecting our views of every
branch of law, every organ of government, and every aspect of social and
individual life in medieval England. Nothing, however, has hitherto been
done towards applying to the systematic elucidation of Magna Carta the
new stores of knowledge thus accumulated.

With this object in view, I have endeavoured, throughout several years
of hard, but congenial work, to collect, sift, and arrange the mass of
evidence, drawn from many scattered sources, capable of throwing light
upon John’s Great Charter. The results have now been condensed into the
Commentary which fills two thirds of the present volume. This attempt to
explain, point by point, the sixty-three chapters of Magna Carta,
embracing, as these do, every topic—legal, political, economic and
social—in which John and his barons felt a vital interest, has involved
an analysis in some detail of the whole public and private life of
England during the thirteenth century. The Commentary is preceded by a
Historical Introduction, which describes the events leading to the
crisis of 1215, analyzes the grievances which stirred the barons to
revolt, discusses the contents and characteristics of the Charter,
traces its connection with the subsequent course of English history, and
gives some account of previous editions and commentaries.

While reference has been made throughout to original sources where these
were available, advantage has been freely taken of the labours of
others. If a debt of gratitude requires to be here acknowledged to
previous commentators, a far deeper debt is due to many scholars who
have, within recent years, by their labours in various fields not
directly connected with Magna Carta, incidentally thrown light on topics
of which the Charter treats. Of Bishop Stubbs it is almost unnecessary
to speak, since his works form the common starting-point of all
historians and constitutional lawyers of the present generation. Readers
versed in modern literature will readily trace the influence of Prof.
Maitland, Mr. J. Horace Round, Sir Frederic Pollock, Mr. L. O. Pike, and
Prof. Prothero; while the numerous other authorities laid under
contribution are referred to in the foot-notes and the appended
bibliography. Frequent reference has been made to two independent and
scholarly histories of the reign of John which have recently
appeared—Miss Norgate’s _John Lackland_, and Sir James H. Ramsay’s
_Angevin Empire_. Of the older books dealing directly with the subject
in hand, Sir William Blackstone’s _Great Charter_ has been found the
best; while among modern works the _Chartes_ of M. Charles Bémont is the
most valuable. The inexhaustible stores of Madox’s _History of the
Exchequer_ have also been freely drawn upon.

While these pages were passing through the press a brilliant essay by
Mr. Edward Jenks appeared in the pages of _The Independent Review_ for
November 1904, whose title _The Myth of Magna Carta_ indicates the
unconventional and iconoclastic lines on which it proceeds. He argues
with much force that the Charter was the product of the selfish action
of the barons pressing their own interests, and not of any disinterested
or national movement; that it was not, by any means, “a great landmark
in history”; and that, instead of proving a material help in England’s
advance towards constitutional freedom, it was rather “a stumbling block
in the path of progress,” being entirely feudal and reactionary in its
intention and effects. Finally, for most of the popular misapprehensions
concerning it, he holds Sir Edward Coke responsible. How far the present
writer is in agreement with these opinions will appear from the
following pages: but Mr. Jenks’ position would seem to require
modification in at least three respects: (1) A few of the provisions of
John’s Charter are by no means of a reactionary nature. (2) Coke cannot
be credited with the initiation of all, or even most, of the popular
fallacies which have come, in the course of centuries, to cluster so
thickly round the Charter. (3) Mr. Jenks, perhaps, undervalues the
importance of traditional interpretations which, even when based on
insecure historical foundations, are shown in the sequel to have proved
of supreme value in the battle of freedom.

I am indebted to four friends who have kindly read my proof sheets, to
Mr. W. R. J. Gray, and Mr. Robert A. Moody, whose good offices in this
direction are not now rendered for the first time, and to two of the
members of my Honours Class of 1903-4, Mr. A. C. Black, Jun., and Mr. D.
B. Mungo, all of whom have been zealous in help and fertile in
suggestion.

KNIGHTSWOOD, ELDERSLIE,
RENFREWSHIRE, _6th February, 1905_

CONTENTS

HISTORICAL INTRODUCTION.

PART I. EVENTS LEADING TO MAGNA CARTA:

PAGE

I. William I. to Henry II.: Main Problem, the 1
Monarchy,

II. William I. to Henry II.: Problem of Local 16
Government,

III. William I. to Henry II.: Problem of Church and 20
State,

IV. Richard I. and John, 23

V. The Years of Crisis, 33

VI. Runnymede, and after, 43

PART II. FEUDAL GRIEVANCES AND MAGNA CARTA:

I. The Immediate Causes of the Crisis, 58

II. The Crown and Feudal Obligations, 64

III. Royal Justice and Feudal Justice, 93

PART III. MAGNA CARTA: ITS FORM AND CONTENTS:

I. Its Prototypes: Earlier Charters, 113

II. Magna Carta: Its Form and Juridical Nature, 123

III. Magna Carta: Its Contents and Characteristics, 129

IV. Magna Carta: An Estimate of its Value, 144

V. Magna Carta: Its Defects, 150

VI. Magna Carta: Value of Traditional Interpretations, 154

VII. Magna Carta: Its Traditional Relation to Trial by 158
Jury,

PART IV. HISTORICAL SEQUEL TO MAGNA CARTA:

I. Reissues and Confirmations of the Great Charter, 164

II. Magna Carta and the Reforms of Edward I., 186

PART V. MAGNA CARTA; ORIGINAL VERSIONS, PRINTED EDITIONS, AND
COMMENTARIES:

I. Manuscripts of Magna Carta and Relative Documents, 194

II. Previous Editions and Commentaries, 205

MAGNA CARTA:
TEXT, TRANSLATION, COMMENTARY.

PREAMBLE.

I. The King’s Title. II. The names of the consenting 215
Nobles. III. The Reasons of the Grant,

CHAPTER ONE.

I. The Rights of the National Church: (1) _Quod 222
Anglicana ecclesia libera sit_; (2) Canonical
Election. II. Civil and Political Rights,

CHAPTER TWO.

I. Assessment of Reliefs. II. Units of Assessment: (1) 229
_Feodum militis integrum_; (2) _Baronia integra_; (3)
_Baronia comitis integra._ III. Liability of Church
Property to Reliefs,

CHAPTER THREE.

No Relief after Wardship, 239

CHAPTER FOUR.

Wardship: (1) The Definition of Waste; (2) The 241
Punishment of Wasteful Guardians; (3) Provision
against Recurrence,

CHAPTER FIVE.

I. The Obligations of the Warden of a Lay-fief. II. 246
Wardship over Vacant Sees,

CHAPTER SIX.

The Marriage of Wards, 250

CHAPTER SEVEN.

I. The Widow’s Share of Real Estate: (1) Dower; (2) 253
_Maritagium_; (3) _Hereditas._ II. Her Share of
Personal Estate. III. Provision for her Immediate
Needs: (1) Quarantine; (2) Estovers of Common,

CHAPTER EIGHT.

Marriage of Widows, 260

CHAPTER NINE.

Procedure for Enforcing Payment of Debts, 261

CHAPTER TEN.

Usury. I. The History of the Jews in England. II. Legal 265
Position of the Jews,

CHAPTER ELEVEN.

Widows and Children of Debtors to be Protected against 273
Creditors,

CHAPTER TWELVE.

I. Protection of Crown Tenants from Arbitrary Exactions: 274
(1) Scutage; (2) Feudal Aids. II. Protection of
Citizens of London: Aids and Tallages. III. Magna
Carta and the Theory of Parliamentary Taxation,

CHAPTER THIRTEEN.

Liberties and Free Customs of London, 284

CHAPTER FOURTEEN.

Method of obtaining the Common Council of the Kingdom. 291
I. Nature of the Summons. II. Composition of the
Council. III. Position of the “Minor Barons.” IV.
Representation. V. Powers and Functions of the
Council. VI. Rights of Majorities and Minorities,

CHAPTER FIFTEEN.

Restrictions on Mesne Lords taking Aids. I. Points of 301
difference between tenants-in-chief and under-tenants.
II. The influence of Magna Carta upon later practice,

CHAPTER SIXTEEN.

No one to perform greater service for a tenement than is 306
due,

CHAPTER SEVENTEEN.

Common Pleas. I. The Curia Regis as a Court of Law. II. 308
Common Pleas and Royal Pleas. III. Effects of Magna
Carta on the Genesis of the three Courts of Common
Law. IV. Evolution of the Court of Common Pleas. V.
Erroneous Views,

CHAPTER EIGHTEEN.

Petty Assizes. I. The Curia Regis and the Travelling 317
Justices. II. The Nature and Origin of the three Petty
Assizes. III. The Assizes in 1215. IV. An Erroneous
View. V. Later History of the Justices of Assize,

CHAPTER NINETEEN.

Procedure at Petty Assizes, 331

CHAPTER TWENTY.

Amercement. I. Three Stages of Criminal Law: (1) The 334
blood-feud; (2) Fixed money-payments; (3) Amercements.
II. Magna Carta and Amercements: (1) Of the
Freeholder; (2) Of the Merchant; (3) Of the Villein;
(4) Fines and Amercements; (5) Contenement,

CHAPTER TWENTY-ONE.

Amercement of Earls and Barons, 346

CHAPTER TWENTY-TWO.

Amercement of the Clergy, 349

CHAPTER TWENTY-THREE.

I. Origin of the Obligation to make Bridges. II. The 352
King’s Rights of Falconry. III. Erroneous
Interpretations,

CHAPTER TWENTY-FOUR.

I. Pleas of the Crown. II. Keeping and Trying Criminal 358
Pleas. III. The Intention of Magna Carta. IV. An
Erroneous View. V. Local Magistrates under John: (1)
The Sheriff; (2) The Constable; (3) The Coroner; (4)
The Bailiff,

CHAPTER TWENTY-FIVE.

Farms of Counties and Hundreds, 372

CHAPTER TWENTY-SIX.

Crown Debtors. I. Nature of the Grievance. II. The Right 376
to Bequeath,

CHAPTER TWENTY-SEVEN.

Intestate Succession, 382

CHAPTER TWENTY-EIGHT.

I. Purveyance in General. II. Branches of it restricted 385
by Magna Carta. III. Its other Branches,

CHAPTER TWENTY-NINE.

Castle-Guard, 390

CHAPTER THIRTY.

Purveyance of Horses and Carts, 392

CHAPTER THIRTY-ONE.

Purveyance of Timber, 393

CHAPTER THIRTY-TWO.

I. The Crown’s Claim to Felons’ Property: (1) Lands; (2) 394
Chattels. II. Indictment, Conviction, and Attainder,

CHAPTER THIRTY-THREE.

Obstructions to be removed from Rivers, 402

CHAPTER THIRTY-FOUR.

The Writ “_Praecipe_.” I. Royal Writs and the Feudal 405
Jurisdictions. II. Influence of this provision on
later legal Development,

CHAPTER THIRTY-FIVE.

Standards of Weights and Measures, 414

CHAPTER THIRTY-SIX.

Writ _de Odio et Atia_. I. Trial by Combat prior to 417
John’s Reign. II. The Writ of Life and Limbs. III. Its
Subsidiary Uses. IV. Later History of Appeal and
Battle,

CHAPTER THIRTY-SEVEN.

Prerogative Wardship, 427

CHAPTER THIRTY-EIGHT.

No Bailiff to put anyone to his “law” without Witnesses. 430
I. Probable Object of this Chapter. II. Medieval
Interpretations. III. Modern Interpretations,

CHAPTER THIRTY-NINE.

I. Its Main Object: (1) Judgment must precede Execution; 436
(2) _Per judicium parium_; (3) _Per legem terrae_; (4)
Meaning of "_vel_." II. The scope of the Protection
afforded. III. What classes of men enjoyed it. IV.
Reactionary Aspects. V. The Genesis of this Chapter.
VI. Later History of "Judgment of Peers." VII.
Erroneous Interpretations,

CHAPTER FORTY.

Justice not to be Sold, Refused, or Delayed, 459

CHAPTER FORTY-ONE.

Freedom of Trade. I. Magna Carta favours Alien 463
Merchants. II. Customs and Tolls. III. The Motives
prompting this Chapter. IV. English Boroughs and
Merchant Strangers,

CHAPTER FORTY-TWO.

Liberty to leave the Kingdom—Writs _ne exeat regno_, 473

CHAPTER FORTY-THREE.

Tenants of Escheated Baronies, 478

CHAPTER FORTY-FOUR.

I. The Royal Forests. II. Their Origin. III. Forest 482
Officials. IV. Forest Courts. V. Chases, Parks, and
Warrens. VI. Forest Rights and Forest Grievances. VII.
Later History of Forests and Forest Laws,

CHAPTER FORTY-FIVE.

Justices, Castellans, Sheriffs, and Bailiffs to be 502
law-abiding men,

CHAPTER FORTY-SIX.

Wardship over Vacant Abbeys, 505

CHAPTER FORTY-SEVEN.

Forests and River-banks encroached upon by John, 507

CHAPTER FORTY-EIGHT.

Procedure for abolishing Evil Customs of Forests and 511
elsewhere,

CHAPTER FORTY-NINE.

Hostages and Charters to be restored, 514

CHAPTER FIFTY.

List of those excluded from offices of trust in future, 518

CHAPTER FIFTY-ONE.

Expulsion of Foreign Mercenaries, 522

CHAPTER FIFTY-TWO.

Procedure for redressing wrongful Disseisins, 523

CHAPTER FIFTY-THREE.

A Crusader’s Respite allowed to John, 525

CHAPTER FIFTY-FOUR.

Right of Appeal by Women, 527

CHAPTER FIFTY-FIVE.

Remission of Unjust Fines and Amercements, 530

CHAPTER FIFTY-SIX.

Redress for Welshmen wrongfully disseised by John, 533

CHAPTER FIFTY-SEVEN.

Redress for Welshmen wrongfully disseised by Henry II. 534
or Richard I.,

CHAPTER FIFTY-EIGHT.

Welsh Hostages and Charters to be restored, 536

CHAPTER FIFTY-NINE.

Justice to be done to Alexander, King of Scots; 537
Relations of England and Scotland,

CHAPTER SIXTY.

Extension of Provisions of Charter to Tenants of Mesne 543
Lords,

CHAPTER SIXTY-ONE.

The _Forma Securitatis_ or Legal Sanction of the 545
Charter. I. Nature of the Security. II. Minor Details
of the Scheme: (1) Twenty-five Executors; (2) A quorum
may act; (3) Sub-committee of four; (4) Local Agents;
(5) The Co-operation of the Public. III. Criticism of
the Scheme. IV. Dr. Gneist’s Opinion. V. Failure of
the Scheme,

CHAPTER SIXTY-TWO.

Prelates to issue Letters Testimonial, 562

CHAPTER SIXTY-THREE.
Formal Clauses, 563

APPENDIX.
DOCUMENTS RELATIVE TO, OR ILLUSTRATIVE OF, JOHN’S MAGNA
CARTA:

I. The Charter of Liberties of Henry I. (1100), 565

II. The Second or Oxford Charter of Stephen (1136), 567

III. Charter of Henry II. (_circa_ 1154), 568

IV. The so-called “Unknown Charter of Liberties,” 569

V. The Articles of the Barons (1215), 570

VI. Writs Supplementary of John’s Great Charter, 576

VII. The Great Charter of Henry III. (Second Re-issue, 580
6th November, 1217),

VIII. Carta de Foresta, 586

SELECT BIBLIOGRAPHY AND LIST OF AUTHORITIES REFERRED TO, 590

INDEX TO STATUTES, 597

GENERAL INDEX 599

HISTORICAL INTRODUCTION.

PART I.
EVENTS LEADING TO MAGNA CARTA.

The Great Charter is too often treated as the outcome of purely
accidental causes. Students of its origin are sometimes content to
explain it as a mere tangible product of the successful resistance
called forth by the tyrannies of King John. That monarch’s personal
misdeeds, it is maintained, goaded into determined action a fierce
unflinching opposition which never rested until it had achieved success;
and the outcome of this success was the winning of the Great Charter of
Liberties. The moving causes of events of such tremendous moment are
thus sought in the characteristics and vices of one man. If John had
never lived and sinned, so it would appear, the foundations of English
freedom would never have been laid.

Such shallow views of history unnecessarily belittle the magnitude and
inevitable nature of the sequence of causes and effects upon which great
issues really depend. The compelling logic of events forces a way for
its own fulfilment, independent of the caprices, aims and ambitions of
individual men. The incidents of John’s career are the occasions, not
the causes, of the great national movement which laid the foundations of
English liberties. The origin of Magna Carta lies too deep to be
determined by any purely contingent or accidental phenomena. It is as
unwise as it is unnecessary to suppose that the course of constitutional
development in England was suddenly and violently wrested into a
completely new channel, merely because of the incapacity or misdeeds of
the temporary occupant of the throne. The source of the discontent
fanned to flame by John’s oppressions must be sought in earlier reigns.
The genesis of the Charter cannot be understood apart from its
historical antecedents, and these are inextricably bound up with the
whole story how England grew to be a nation.

In expounding the origin of the Charter, it is necessary briefly to
narrate how the scattered Anglo-Saxon and Danish tribes and territories,
originally unconnected, were gradually welded together and grew into
England; how this fusion was made permanent by the growth of a strong
form of centralized monarchical government which crushed out all
attempts at local independence, and threatened to become the most
absolute despotism in Europe; and how, finally, the Crown, because of
the very plenitude of its power, challenged opposition and called into
play forces which set limits to royal prerogatives and royal
aggressions, and at the same time laid the foundations of the reign of
law. A short survey of the early history of England forms a necessary
preliminary to a right understanding of Magna Carta. Such a survey makes
prominent two leading movements, one of which succeeds the other;
namely, the establishment of a strong monarchy able to bring order out
of anarchy, and the subsequent establishment of safeguards to prevent
this source of order degenerating into an unrestrained tyranny, and so
crushing out not merely anarchy but legitimate freedom as well. The
later movement, in favour of liberty and the Great Charter, was the
natural complement, and, in part, the consequence of the earlier
movement in the direction of a strong government able to enforce peace.
In historical sequence, order precedes freedom.

These two problems, each forming the counterpart of the other,
necessarily arise in the history of every nation, and in every age; the
problem of _order_, or how to found a central government strong enough
to suppress anarchy, and the problem of _freedom_, or how to set limits
to an autocracy threatening to overshadow individual liberty. Neither of
these problems can ever be ignored, not even in the twentieth century;
although to-day the accumulated political experience of ages has enabled
modern nations, such at least as are sufficiently educated in
self-government, to thrust them into the background, out of view. Deep
political insight may still be acknowledged in Æsop’s fable of Jupiter
and the frogs. King Log proves as ineffective against foreign invasion
as he is void of offence to domestic freedom; King Stork secures the
triumph of his subjects in time of war, but devours them in time of
peace. All nations in their early efforts to obtain an efficient
government have to choose between these two types of ruler—between an
executive, harmless but weak; and one powerful enough effectively to
direct the business of government at home and abroad, but ready to turn
the powers entrusted to him for the good of all, to his own selfish uses
and the trampling out of his subjects’ liberties.

On the whole, the miseries of the long centuries of Anglo-Saxon rule
were mainly the outcome of the Crown’s weakness; while, at the Norman
Conquest, England escaped from the mild sceptre of inefficiency, only to
fall under the cruel sceptre of selfish strength. Yet the able kings of
the new dynasty, powerful as they were, had to struggle in order to
maintain their supremacy; for, although the conquered English races were
incapable of concerted resistance against their Norman masters, the
unruly alien barons fought vigorously to shake off the royal control.

During a century of Norman rule, constant warfare was waged between two
great principles—the monarchic standing on the whole for order, seeking
to crush anarchy, and the oligarchic or baronial, standing on the whole
for liberty, protesting against the tyranny of autocratic power.
Sometimes one of these was in the ascendant; sometimes the other. The
history of medieval England is the swing of the pendulum between these
two extremes.

The main plot, then, of early English history, centres round the attempt
to found a strong monarchy, and yet to set limits to its strength. With
this main plot subordinate plots are interwoven. Chief among these must
be reckoned the necessity of defining the relations of the central to
the local government, and the need of an acknowledged frontier between
the domains of Church and State. On the other hand, all that interesting
group of problems connected with the _ideal form_ of government, much
discussed in the days of Aristotle as in our own, is notably absent,
never having been forced by the logic of events upon the mind of
medieval Europe. Monarchy was apparently assumed as the only possible
scheme of government; while the relative merits of aristocracy and
democracy, or of the much-vaunted constitution known as “mixed,” were
not canvassed, since these forms of constitution were not within the
sphere of practical politics.

The student of history will do well to concentrate his attention at
first on the main problem, while viewing the subsidiary ones in their
relations to the central current.

I. William I. to Henry II.—Main Problem: the Monarchy.

The attention of the most casual student is arrested by the
consideration of the difficulties which surrounded the English nation in
its early struggles for bare existence. The great problem was, first,
how to get itself into being, and thereafter how to guard against the
forces of disintegration, which strove without rest to tear it to pieces
again. The dawn of English history shows the beginning of that long slow
process of consolidation in which unconscious reason played a deeper
part than human will, whereby many discordant tribes and races, many
independent provinces, were crushed together into something bearing a
rude likeness to a united nation. Many forces converged in achieving
this result. The coercion of strong tribes over their weaker neighbours,
the pressure of outside foes, the growth of a body of law, and of public
opinion, the influence of religion in the direction of peace, all helped
to weld a chaos of incongruous and warring elements together.

It is notable that each of the three influences, destined ultimately to
aid most materially in this process of unification, threatened at one
time to have a contrary effect. Thus the rivalries of the smaller
kingdoms tended at first towards a complete disruption, before Wessex
succeeded in asserting an undisputed supremacy; the Christianizing of
England partly by Celtic missionaries from the north and partly by
emissaries from Rome threatened to split the country into two, until
their mutual rivalries were stilled after the Synod of Whitby in 664;
and one effect of the incursion of the Danes was to create an absolute
barrier between the lands that lay on either side of Watling Street,
before the whole country succumbed to the unifying pressure of Cnut and
his sons.

The stern discipline of foreign conquest was required to make national
unity possible; and, with the restoration of the old Wessex dynasty in
the person of Edward Confessor, the forces of disintegration again made
headway. England threatened once more to fall to pieces, but at the
critical and appointed time the iron rule of the Normans came to
complete what the Danes had begun half a century earlier. As the
weakness of the Anglo-Saxon kings and the disruption of the country had
gone hand in hand, so the process which, after the Conquest, made
England one, was identical with the process which established the throne
of the new dynasty on a strong, enduring basis. The complete unification
of England was the result of the Norman despotism.

Thereafter, the strength of its monarchy was what rendered England
unique in medieval Europe. Three great kings in especial contributed, by
their ability and indomitable power of will, to this result—William the
Conqueror, Henry Beauclerk, and Henry Plantagenet. In a sense, the work
of all three was the same, namely, to build up the central authority
against the disintegrating effects of feudal anarchy; but the policy of
each was necessarily modified by changing times and needs. The
foundations of the whole were laid by the Conqueror, whose character and
circumstances combined to afford him an opportunity unparalleled in
history. The difficulties of his task, and the methods by which he
carried it to a successful issue, are best understood in relation to the
nature of the opposition he had to dread. Feudalism was the great
current of the age—a tide formed by many converging streams, all flowing
in the same direction, unreasoning like the blind powers of Nature,
carrying away and submerging every obstacle in its path. In other parts
of Europe—in Germany, France, and Italy, as in Scotland—the ablest
monarchs found their thrones undermined by this feudal current. In
England alone the monarchy made headway against the flood. William I.
wisely refrained from any mad attempt to stay the torrent; but, while
accepting it, he quietly subjected it to his own purposes. He carefully
watched and modified the tendencies making for feudalism, which he found
in England on his arrival, and he profoundly altered the feudal usages
and rights which his followers transplanted from the Norman soil. The
special expedients used by him for this purpose are well known, and are
all closely connected with his crafty policy of balancing the
Anglo-Saxon basis of his rule against the imported Norman
superstructure, and of selecting at his own discretion such elements as
suited him in either. He encouraged the adoption or intensification in
England of feudalism, considered as a system of land tenure and as a
system of social distinctions based on the possession of land; but he
successfully endeavoured to check the evils of its unrestrained growth
in its other equally important aspects, namely, as a system of local
government seeking to be independent of the Crown, and as a system of
jurisdiction. As a political system, it was always a subject of
suspicion to William, for he viewed it in the light of his double
experience in Normandy as feudal lord and feudal vassal.

William’s policy was one of balancing. His whole career in England was
characteristically inaugurated by his care to support his claim to the
throne on a double basis. Not content to depend merely on the right of
conquest, he insisted on having his title confirmed by a body claiming
to represent the old Witenagemot of England, and he further alleged that
he had been formally named as successor by his kinsman, Edward
Confessor, a nomination strengthened by the renunciation of Harold in
his favour. Thus, to his Norman followers claiming to have set him by
force of arms on his throne, William might point to the form of election
by the Witan, while for his English subjects, claiming to have elected
him, the presence of the foreign troops was an even more effective
argument. Throughout his reign, his plan was to balance the old English
laws and institutions against the new Norman ones, with himself as
umpire over all. Thus he retained whatever suited him in Anglo-Saxon
customs. Roger of Hoveden tells us how, in the fourth year of his reign,
twelve of the subject English from each county—noble, wise, and learned
in the laws—were summoned to recite on oath the old customs of the
land.[1] He retained, too, the old popular moots or meetings of the
shire and hundred as a counterpoise to the feudal jurisdictions; the
fyrd or militia of all free men as a set-off to the feudal levy; and
such of the incidents of the old Anglo-Saxon tenures of land as met his
requirements.

-----

Footnote 1:

R. Hoveden, _Chronica_, II. 218.

-----

Thus the subject English, with their customs and ancient institutions,
were used as expedients for modifying the excesses of feudalism.
William, however, did not shrink from innovations where these suited his
purpose. The great earldoms into which England had been divided, even
down to the Norman Conquest, were abolished. New earldoms were indeed
created, but on an entirely different basis. Even the great officers,
subsequently known as Earls Palatine, always few in number, never
attained either to the extent of territory or to the independence of the
Anglo-Saxon ealdormen. William was chary of creating even ordinary
earls, and such as he did create soon became mere holders of empty
titles of honour, while they found themselves ousted from all real power
by the Norman _vicecomites_ or sheriffs. No English earl was a “count”
in the continental sense (that is, a real ruler of a “county”). Further,
no earl was allowed to hold too large an estate within his titular
shire; and William, while compelled to reward his followers’ services
with great possessions, was careful that these should be split up in
widely scattered districts of his Kingdom. Thus the great feudatories
were prevented from consolidating their resources against the Crown.

Various ingenious devices were used for checking the feudal excesses so
prevalent on the continent. Rights of private war, coinage, and
castle-building, were jealously watched and circumscribed; while private
jurisdictions, although tolerated as a necessary evil, were kept within
bounds. The manor was in England the normal unit of seignorial
jurisdiction, and higher courts of Honours were so exceptional as to be
a negligible quantity. No feudal appeal lay from the manorial court of
one magnate to that of his over-lord, while, in later reigns at least,
appeals were encouraged to the _Curia Regis_. Almost at the close of
William’s reign a new encroachment upon the feudal spirit was
accomplished, when the Conqueror on Salisbury Plain compelled all
freeholders to take an oath of homage and fealty personally to the king.

The results of this policy have been well summarized as “a strong
monarchy, a relatively weak baronage, and a homogeneous people.”

During the reign of William II. (1087-1100) the constitution made no
conspicuous advance. The foundations had been laid; but Rufus was more
intent on his hunting and enjoyments, than on the deeper matters of
statecraft. Some minor details of feudal organization were doubtless
settled and defined in these thirteen years by the King’s Treasurer,
Ralph Flambard; but the extent to which he innovated on the practice of
the elder William is matter of dispute. On the whole, the reign must be
considered as a time of rest between two periods of advance.

Henry I. (1100-35) took up, with far-seeing statesman’s eye and much
vigour, the work of consolidation. His policy shows an advance upon that
of his father. William had contented himself with controlling and
curbing the main vices of feudalism, while he played off against it the
English native institutions. Henry went further, and introduced within
the _Curia Regis_ itself a new class of men representing a new principle
of government. The great offices of state, previously held by men of
baronial rank, were now filled with creatures of Henry’s own, men of
humble birth, whose merit had raised them to his favour, and whose only
title to power lay in his goodwill. The employment of this strictly
professional class of administrators was one of the chief contributions
made by Henry to the growth of the constitution. His other great
achievement was the organization of the Exchequer, primarily as a source
of royal revenue, but soon found useful as a means of making his will
felt in every corner of England. For this great work he was fortunate to
secure in Roger, Bishop of Salisbury, the help of a man who combined
genius with painstaking ability. At the Exchequer, as organized by the
King and his minister, the sheriff of each county twice a year, at
Easter and at Michaelmas, rendered account of every payment that had
passed through his hands. His balance was adjusted before all the great
officers of the King’s household, who subjected his accounts to close
scrutiny and criticism. Official records were drawn up, one of which—the
famous Pipe Roll of 1130,—is extant at the present day. As the sums
received by the sheriff affected every class of society in town and
country, these half-yearly audits enabled the King’s advisers to
scrutinize the lives and conduct of every one of importance in the land.
These half-yearly investigations were rendered more effective by the
existence at the Exchequer of a great record of every landed estate in
England. With this the sheriffs’ returns could be checked and compared.
Henry’s Exchequer thus found one of its most powerful weapons in the
great Domesday Survey, the most enduring proof of the statesmanship of
the Conqueror, by whose orders and under whose direction it had been
compiled.

The central scrutiny conducted within the two chambers of the Exchequer
was supplemented by occasional inspections conducted in each county. The
King’s representatives, including among them usually some of the
officers whose duty it was to preside over the half-yearly audit,
visited, at intervals still irregular, the various shires. These Eyres,
as they were called, were at first chiefly undertaken for financial
purposes. The main object was to check, on the scene of their labours,
the statements made at Westminster by the various sheriffs. From the
first, such financial investigations necessarily involved the trial of
pleas. Complaints of oppression at the hands of the local tyrant of the
county were naturally made and determined on the spot; gradually, but
not until a later reign, the judicial business became equally important
with the financial, and ultimately even more important.

Henry at his death in 1135 seemed to have carried nearly to completion
his congenial task of building a strong monarchy on the foundations laid
by William I. Much of his work was, however, for a time undone, while
all of it seemed in imminent danger of perishing for ever, because he
left no male heir of his body to succeed him on the throne. His
daughter’s claims were set aside by Stephen, the son of the Conqueror’s
daughter, and a cadet of the House of Blois, to whom Henry had played
the indulgent uncle, and who repaid his benefactor’s generosity by
constituting himself his heir. From the first moment of his reign,
Stephen proved unequal to the task of preserving the monarchy intact
from the wild forces that beat around the throne. His failure is
attributed by some to his personal characteristics, and by others to the
defective nature of his title, combined with the presence of a rival in
the field in the person of his cousin, Henry’s daughter, the ex-Empress
Matilda. The nineteen years of anarchy which nominally formed his reign
did nothing—and worse than nothing—to continue the work of his great
ancestors. The power of the Crown was humbled, and England was almost
torn in fragments by the selfish claims of rival feudal magnates to
local independence.

With the accession of Henry II. (1154) the tide quickly turned, and
turned for good.

Of the numerous steps taken by Henry Plantagenet to complete the work of
the earlier master-builders of the English monarchy, only a few need
here be mentioned. Ascending the throne in early manhood, he brought
with him a statesman’s instinct peculiar to himself, together with the
unconquerable energy common to his race. He rapidly overhauled every
existing institution and every branch of administration. The permanent
_Curia Regis_ was not only restored to efficient working order, but was
improved in each one of its many aspects—as the King’s household, as a
financial bureau, as the administrative centre of the entire kingdom,
and as the special vehicle of royal justice. The Exchequer, which was
indeed originally merely the _Curia_ in its financial aspect, received
the re-organization so urgently needed after the terrible strains to
which it had been subjected amid the quarrels of Stephen and Matilda.
The Pipe Rolls were revived and various minor reforms in financial
matters effected. All local courts (both the old popular courts of
hundred and county, and also the feudal jurisdictions) were brought
under the more effective control of the central government by various
expedients. Chief among these was the restoration of the system of Eyres
with their travelling justices (a natural supplement to the restoration
of the Exchequer), whose visits were now placed on a more regular and
systematic basis. Equally important were the King’s personal care in the
selection of fit men for the duties of sheriff, the frequent punishments
and removal from office of offenders, and the rigid insistence upon
efficient training and uprightness in all who enjoyed places of
authority under the Crown. Henry was strong enough to employ more
substantial men than the _novi homines_ of his grandfather without
suffering them to be less devoted to the interests of their Prince. Yet
another expedient for controlling local courts was the calling up of
cases to his own central feudal _Curia_, or before those benches of
professional judges, the future King’s Bench and Common Pleas, forming
as yet merely committees of the _Curia_ as a whole.

Closely connected with the control thus established over the local
courts was the new system of procedure instituted by Henry. The chief
feature was that each litigation must commence with an appropriate royal
writ issued from the Chancery. Soon for each class of action was devised
a special writ appropriate to itself, and the entire procedure came to
be known as "the writ process"—an important system to which English
jurisprudence owes both its form and the direction of its growth. Many
reforms which at first sight seem connected merely with minute points of
legal procedure were really fraught with immense purport to the
subsequent development of English law and English liberties. A great
future was reserved for certain expedients adopted by Henry for the
settlement of disputes as to the possession or ownership of land, and
also for certain expedients for reforming criminal justice instituted or
systematized by a great ordinance, issued in 1166, known as the Assize
of Clarendon.[2] A striking feature of Henry’s policy was the bold
manner in which he threw open the doors of his royal Courts of Law to
all-comers, and provided there—always in return for hard cash, be it
said—a better article in name of justice than could be procured
elsewhere in England, or for that matter, elsewhere in Europe. Thus, not
only was the Exchequer filled with fines and fees, but, insidiously and
without the danger involved in a frontal attack, Henry sapped the
strength of the great feudal magnates, and diverted the stream of
litigants from the manorial courts to his own. The same policy had still
another result in facilitating the growth of a body of common law,
uniform throughout the length and breadth of England, and opposed to the
varying usages of localities or even of individual baronial courts.

-----

Footnote 2:

The details of these reforms are fully discussed _infra_ under the
head of “Royal Justice and Feudal Justice,” and some of their ultimate
effects under the head of “Trial by Jury.”

-----

These reforms, besides influencing the current of events in England in
numerous ways, both direct and indirect, all helped to strengthen the
throne of Henry and his sons. Another class of reforms contributed
greatly to the same result, namely, the reorganization of the army. This
was effected in various ways: partly by the revival and more strict
enforcement of the obligations connected with the old Anglo-Saxon fyrd
or militia, under the Assize of Arms in 1181, which compelled every
freeman to maintain at his own expense weapons and warlike equipment
suited to his station in life; partly by the ingenious method of
increasing the amount of feudal service due from Crown tenants, based
upon an investigation instituted by the Crown and upon the written
replies returned by the barons, known to historians as “the _Cartae_ of
1166”; and partly by the development (not, as is usually supposed, the
_invention_) of the principle of scutage, a means whereby unwilling
military service, limited as it was by annoying restrictions as to time
and place, might be exchanged at the option of the Crown for money, with
which a more flexible army of mercenaries might be hired.

By these expedients, along with many others, Henry raised the English
monarchy, always in the ascendant since the Conquest, to the very zenith
of its power, and left to his sons the entire machinery of government in
perfect working order, combining high administrative efficiency with
great strength. Full of bitter strifes and troubles as his reign of
thirty-five years had been, nothing had interfered with the vigour and
success of the policy whereby he tightened his hold on England. Neither
the long bitter struggle with Becket and the Church, ending as it did in
Henry’s personal humiliation, nor the unnatural warfare with his sons,
which involved the depths of personal suffering to the King and hastened
his death in 1189, was allowed to interfere with his projects of reform
in England.

The last twenty years of his life had been darkened for him, and proved
troubled and anarchic in the extreme to his continental dominions; but
in England profound peace reigned. The last serious revolt of the powers
of feudal anarchy had been suppressed in 1173 with characteristic
thoroughness and moderation. After that date, the English monarchy
retained its supremacy almost without an effort.

II. William I. to Henry II.—Problem of Local Government.

It is necessary to leave for a time the English monarchy at its zenith,
still enjoying in 1189 the powers and reputation gained for it by Henry
of Anjou, and to retrace our steps, in order to consider two subsidiary
problems, each of which requires separate treatment—the problem of local
government, and that of the relations between Church and State. The
failure of the Princes of the House of Wessex to devise adequate
machinery for keeping the Danish and Anglian provinces in subjection to
their will was one main source of the weakness of their monarchy. When
Duke William solved this problem he took an enormous stride towards
establishing his throne on a securer basis.

Every age has to face, in its own way, a group of difficulties
essentially the same, although assuming such different names as Home
Rule, Local Government, or Federation. Problems as to the proper nature
of the local authority, the extent of the powers with which it may be
safely entrusted, and its relation to the central government, require
constantly to be solved. The difficulties involved, always great, were
unspeakably greater in an age when practically no administrative
machinery existed, and when rapid communication and serviceable roads
were unknown. A lively sympathy is excited by a consideration of the
almost insuperable difficulties that beset the path of King Edgar or
King Ethelred, endeavouring to rule from Winchester the distant tribes
of alien races inhabiting Northumbria, Mercia, and East Anglia. If such
a king placed a weakling as ruler over any distant province, anarchy
would result and his own authority might be endangered along with that
of his inefficient representative. Yet, if he entrusted the rule of that
province to too strong a man, he might find his suzerainty shaken off by
a viceroy who had consolidated his position and then defied his king.
Here, then, are the two horns of a dilemma, both of which are
illustrated by the course of early English history. When Wessex had
established some measure of authority over rival states, and was fast
growing into England, the policy at first followed was simply to leave
each province under its old native line of rulers, who now admitted a
nominal dependence on the King who ruled at Winchester. The early
West-Saxon Princes vacillated between two opposite lines of policy.
Spasmodic attempts at centralization alternated with the reverse policy
of local autonomy. In the days when Dunstan united the spiritual duties
of the See of Canterbury to the temporal duties of chief adviser to King
Edgar, the problem of local government became urgent. Dunstan’s scheme
has sometimes been described as a federal or home-rule policy—as a frank
surrender of the attempt to control exclusively from one centre the
mixed populations of Northern and Midland England. His attempted
solution was to loosen rather than to tighten further the bond; to
entrust with wide powers and franchises the local viceroy or ealdorman
in each district, and so to be content with a loose federal empire—a
union of hearts rather than a centralized despotism founded on coercion.
The dangers of such a system are the more obvious when it is remembered
that each ealdorman commanded the troops of his own province.

Cnut’s policy has been the subject of much discussion, and has sometimes
apparently been misunderstood. The better opinion is that, with his
Danish troops behind him, he felt strong enough to reverse Dunstan’s
tactics and to take a decisive step in the direction of centralization
or unity. His provincial viceroys (jarls or earls, as they were now
called, rather than by their old vague title of ealdormen), were
appointed on an entirely new basis. England was to be mapped out into
new administrative districts in the hope of obliterating the old tribal
divisions. Each of these was to be placed under a viceroy having no
hereditary or dynastic connection with the province he governed. In this
way, Cnut sought to avert the process by which the country was slowly
breaking up into a number of petty kingdoms.

If these viceroys were a source of strength to the powerful Cnut, they
were a source of weakness to the saintly Confessor, who was forced to
submit to the control of his provincial rulers, such as Godwin and
Leofric, as each in turn gained the upper hand in the field or in the
Witan. This process of disintegration continued until the coming of the
Conqueror utterly changed the relations of the monarchy to every other
factor in the national life.

Among the expedients adopted by the Norman Duke for reducing his
feudatories in England into subjection to the Crown, one of the most
important was the total abolition of the old provinces formerly governed
by separate ealdormen or jarls. Leaving out of account the exceptional
franchises, afterwards known as palatine earldoms, the real
representative of the King in each group of counties was now the sheriff
or _vicecomes_, not the earl. This Latin name of _vicecomes_ is
misleading, since the officer so-called in no sense represented the earl
or _comes_, but acted as the direct agent of the Crown. The name,
“viceroy,” more accurately describes his actual position and functions,
since he was directly responsible to the Crown, and independent of the
earl. The problem of local government, however, was not eradicated by
the substitution of the sheriff for the earl as chief magistrate in the
county; it only took a different form. The sheriffs themselves, when
relieved from the earl’s rivalry and control, tended to become too
powerful. If they never dreamed of openly defying the royal power, they
at least thwarted its exercise indirectly, appropriated to their private
uses items of revenue, pushed their own interests, and punished their
own enemies, while acting in the name of the King. The office threatened
to become territorial and hereditary,[3] and its holders aimed at
independence. New checks had to be devised to prevent this new local
authority from again defying the central power. New safeguards were
found, partly in the organization of the Exchequer and partly in the
device of sending periodically on circuit itinerant justices, who took
precedence of the sheriff, heard complaints against his misdeeds in his
own county, and thus enabled the Crown to keep a watchful eye on its
representatives. By such measures, Henry I. seemed almost to have solved
these problems before his death; but his success was apparent rather
than real.

-----

Footnote 3:

In one county, Westmoreland, the office did become hereditary.

-----

The incompleteness of Henry’s solution of the difficulty became evident
under Stephen, when the leading noble of each locality tried, generally
with success, to capture _both_ offices for himself; great earls like
Ralph of Chester and Geoffrey of Essex compelled the King not only to
confirm them as sheriffs in their own titular counties, but also to
confer on them exclusive right to act as justices therein.

With the accession of Henry II. the problem was, thanks to his energy
and genius, more satisfactorily solved, or at least forced once more
into the background. That great ruler was strong enough to prevent the
growth of the hereditary principle as applied to offices either of the
Household or of local magistrates. The sheriffs were frequently changed,
not only by the drastic and unique measure known as the Inquest of
Sheriffs, but systematically, and as a normal expedient of
administration. For the time being, the local government was kept in
proper subjection to the Crown; and gradually the problem solved itself.
The power of the sheriffs tended in the thirteenth century to decrease,
chiefly because they found important rivals not only in the itinerant
judges, but also in two new officers first heard of in the reign of
Richard I., the forerunners of the modern Coroner and Justice of the
Peace respectively. All fear that the sheriffs as administrative heads
of districts would assert practical independence of the Crown was thus
at an end. Yet each of them still remained a petty tyrant over the
inhabitants of his own bailiwick. While the Crown was able and willing
to avenge any direct neglect of its own interests, it was not always
sufficiently alert to avenge wrongs inflicted upon its humble subjects.
The problem of local government, then, was fast losing its pressing
importance as regards the Crown, and taking a new form, namely, the
necessity of protecting the weak from unjust fines and oppressions
inflicted on them by local magistrates. The sheriff’s local power was no
longer a source of weakness to the monarch, but had become an effective
part of the machinery which enabled the Crown to levy with impunity its
always increasing taxation.

III. William I. to Henry II.—Problem of Church and State.

The national Church had been, from an early date, in tacit alliance with
the Crown. The friendly aid of a long line of statesman-prelates from
Dunstan downwards had given to the Anglo-Saxon monarchy much of the
little strength it possessed. Before the Conquest the connection between
Church and State had been exceedingly close, so much so that no one
thought of drawing a sharp dividing line between. What afterwards became
two separate entities, drifting more and more into active opposition,
were at first merely two aspects of one whole—a whole which comprehended
all classes of the people, considered both in their spiritual and their
temporal relations. Change necessarily came with the Norman Conquest,
when the English Church was brought into closer contact with Rome, and
with the ecclesiastical ideals prevailing on the Continent. Yet no
fundamental alteration resulted; the friendly relations which bound the
English prelates to the English throne remained intact, while English
churchmen continued to look to Canterbury, rather than to Rome, for
guidance. The Church, in William the Conqueror’s new realm, retained
more of a national character than could be found in any other nation of
Europe.

Gratitude to the Pope for his moral support in the work of the Conquest
never modified William’s determination to allow no unwarranted papal
interference in his new domains. His letter, both outspoken and
courteous, in reply to papal demands is still extant. “I refuse to do
fealty nor will I, because neither have I promised it, nor do I find
that my predecessors did it to your predecessors.” Peter’s pence he was
willing to pay at the rate recognized by his Saxon predecessors; but all
encroachments would be politely repelled.

In settling the country newly reduced to his domination, the Duke of
Normandy found his most valuable adviser in a former Abbot of the Norman
Abbey of Bec, whom he raised to be Primate of all England. No record has
come down to us of any serious dispute between William and Lanfranc.

Substantially friendly relations between their successors in the offices
of King and Archbishop remained, notwithstanding Anselm’s condemnation
of the evil deeds of Rufus. Anselm warmly supported that King’s
authority over the Norman magnates, even while he resented his evil
practices towards the Church. He contented himself with a dignified
protest (made emphatic by a withdrawal of his presence from England)
against the new exactions upon the English prelates, and against the
long intervals during which vacancies remained unfilled. Returning at
Rufus’s death from a sort of honourable banishment at Rome, to aid Henry
in maintaining order and gaining peaceable accession to the throne,
Anselm found himself compelled by his conscience and the recent decrees
of a Lateran Council, to enter on the great struggle of the
investitures. Church and State were gradually disentangling themselves
from each other; but in many respects the spiritual and temporal powers
were still indissolubly locked together. In particular, every bishop was
a vassal of the king, holder of a Crown barony, as well as a prelate of
Holy Church. By whom, then, should a bishop be appointed, by the
spiritual or by the temporal power? Could he without sin perform homage
for the estates of his See? Who ought to invest him with ring and
crozier, the symbols of his office as a shepherd of souls? Anselm
adopted one view, Henry the other. A happy compromise, suggested by the
King’s statesmanship, healed the breach for the time being. The ring and
crozier, as badges of spiritual authority, were to be conferred only by
the Church, but each prelate must perform fealty to the King before
receiving these symbols, and must do homage thereafter, but before he
was actually anointed as bishop. Canonical election was nominally
conceded by the King; but here again a practical check was devised for
rendering this power innocuous. The members of the cathedral chapter
were confirmed in the theoretic right to appoint whom they pleased, but
such appointment must be made in the King’s Court or Chapel, thus
affording the powerful monarch full knowledge of the proceedings, and an
opportunity of being present and of practically forcing the selection of
his own candidate.

The Church gained much in power during Stephen’s reign, and deserved the
power it gained, since it remained the only stable centre of good
government, while all other institutions crumbled around it. It was not
unnatural that churchmen should advance new claims, and we find them
adopting the watchword, afterwards so famous, “that the Church should be
free,” a vague phrase doubtless, destined to be embodied in Magna Carta.
The extent of immunity thus claimed was never clearly defined, and this
vagueness was probably intentional, since an elastic phrase might be
expanded to keep pace with the ever-growing pretensions of the Church.
Churchmen made it clear, however, that they meant it to include at the
least two principles—those rights afterwards known as “benefit of
clergy,” and “canonical election” respectively.

Henry II.’s attempt to force a clear definition, embodied in the
Constitutions of Clarendon in 1164, signally failed, chiefly through the
miscarriage of his plans consequent on the murder of Becket. Yet the
rights of the Church, although remaining theoretically unaltered from
the days of Stephen, felt the pressure directed by Henry’s energetic arm
against all claims of privilege. Rights, theoretically the same, shrank
to smaller practical limits when measured against the strength of Henry
as compared with the weakness of Stephen. Canonical election thus
remained at the close of the reign of Henry II. the same farce it had
been in the days of Henry I. The “election” lay with the chapter of the
vacant See; but the king told them plainly whom to elect. The other
rights of the Church as actually enjoyed at the close of the reign of
Henry Plantagenet were not far different from what had been set down in
the Constitutions of Clarendon, although these never received formal
recognition by Canterbury or by Rome. So matters stood between Church
and State when the throne of England was bequeathed by Henry to his
sons. It remained for John’s rash provocation, followed by his quick and
cowardly retreat, to compel a new definition of the frontier between the
spiritual and the temporal powers.

IV. Richard I. and John.

Henry II. before his death had fulfilled the task of restoring order, to
which destiny had called him. To effect this, he had brought to
perfection machinery of government of rare excellence, and equally well
adapted for purposes of taxation, of dispensing justice, and of general
administration. Great as was the power for good of this new instrument
in the hands of a wise and justice-loving king, it was equally powerful
for evil in the hands of an arrogant and unjust, or even of a careless
monarch. All the old enemies of the Crown had been crushed. Local
government, as now systematized, formed a source of strength, not of
weakness; while the Church, whose highest offices were now filled with
officials trained in Henry’s own Household and Exchequer (ecclesiastics
in name only, differing widely from saintly monks like Anselm), still
remained the fast friend of the Crown. The monarchy was strong enough to
defy any one section of the nation, and no inclination was yet apparent
among the estates of the realm to make common cause against the throne.

The very thoroughness with which the Crown had surmounted all its early
difficulties, induced in Henry’s successors, men born in the purple, an
exaggerated feeling of security, and a tendency to overreach themselves
by excessive arrogance. At the same time, the very abjectness of the
various factors of the nation, now prostrate beneath the heel of the
Crown, prepared them to sink their mutual suspicions and to form a tacit
alliance in order to join issue with their common oppressor. Powers used
moderately and on the whole for national ends by Henry, were abused for
purely selfish ends by his sons in succession. Richard’s heavy taxation
and contemptuous indifference to English interests gradually reconciled
men’s minds to thoughts of change, and prepared the basis of a combined
opposition to a power which threatened to grind all other powers to
powder.

In no direction were these abuses felt so severely as in taxation.
Financial machinery had been elaborated to perfection, and large
additional sums could be squeezed from every class in the nation by an
extra turn of the screw. Richard did not even require to incur the odium
of this, since the ministers, who were his instruments, shielded him
from the unpopularity of his measures, while he pursued his own good
pleasure abroad in war and tournament without even condescending to
visit the subjects he oppressed. Twice only, for a few months in each
case, did Richard visit England during a reign of ten years.

In his absence new methods of taxation were devised, and new classes of
property subjected to it; in especial, personal effects—merchandise and
other chattels—only once before (in 1187 for the Saladin tithe) placed
under contribution, were now made a regular source of royal revenue. The
isolated precedent of Henry’s reign was gladly followed when an
extraordinarily heavy burden had to be borne by the nation to produce
the ransom exacted for Richard’s release from prison. The very
heartiness with which England made sacrifices to succour the Monarch in
his hour of need, was turned against the tax-payers. Richard showed no
gratitude; and, being devoid of all kindly interest in his subjects, he
argued that what had been paid once might equally well be paid again.
Thus he formed exaggerated notions of the revenue to be extracted from
England. From abroad he sent demand after demand to his overworked
justiciars for ever-increasing sums of money. The chief lessons of the
reign are connected with this excessive taxation, and the consequent
discontent which prepared the way for the new grouping of political
forces under John.

Some minor lessons may be noted:

(1) In Richard’s absence the odium for his exactions fell upon his
ministers at home, who thus bore the burden meet for his own callous
shoulders, while he enjoyed an undeserved popularity by reason of his
bravery and achievements, exaggerated as these were by the halo of
romance which surrounds a distant hero. Thus may be traced some dim
foreshadowing of the doctrine of ministerial responsibility, although
such analogies with modern politics must not be pushed too far.

(2) Throughout the reign, many parts of Henry’s system, technical
details of taxation and reforms in the administration of justice, were
elaborated by Archbishop Hubert Walter. Principles closely connected
with trial by jury on the one hand and with election and representation
on the other were being quietly developed—destined to play an important
rôle in other ages.

(3) Richard is sometimes said to have inaugurated the golden age of
municipalities. Undoubtedly many charters still extant bear witness to
the lavish hand with which he granted, on paper at least, franchises and
privileges to the nascent towns. John Richard Green finds the true
interest of the reign not in the King’s Crusades and French wars, so
much as in his fostering care over the growth of municipal enterprise.
The importance of the consequences of such a policy is not diminished by
the fact that Richard acted from sordid motives—selling privileges, too
often of a purely nominal character, as he sold everything else which
would fetch a price.

The death of Richard on 6th April, 1199, brought with it at least one
important change; England was no longer to be governed by an absentee.
John, as impatient of control as he was incompetent, endeavoured to
shake himself free from the restraints of powerful ministers, and
determined to conduct the work of government in his own way. The result
was an abrupt end to the progress made in the previous reign towards
ministerial responsibility. The odium formerly exhausting itself on the
justiciars of Richard was now expended on John. While, previously, men
had sought redress in a change of minister, such vain expectations could
no longer deceive. A new element of bitterness was added to injuries
long resented, and the nobles who felt the pinch of heavy taxation were
compelled to seek redress in an entirely new direction. All the forces
of discontent played openly around the throne.

As is usual at the opening of a new reign, the discontented hoped that a
change of sovereign would bring some relief. The excessive taxation of
the late reign had been the result of exceptional circumstances. It was
expected that the new King would revert to the less burdensome scale of
his father’s financial measures. Such hopes were quickly disappointed.
John’s needs proved as great as Richard’s, and the money he obtained was
used for purposes that appealed to no one but himself. The excessive
exactions demanded both in money and in service, coupled with the
unpopular uses to which these were put, form the keynote of the whole
reign. They form also the background of Magna Carta.

The reign falls naturally into three periods; the years in which John
waged a losing war with the King of France (1199-1206), the quarrel with
the Pope (1206-13), the great struggle of John with the barons
(1213-16).

The first seven years were for England comparatively uneventful, except
in the gradual deepening of disgust with John and all his ways. The
continental dominions were ripe for losing, and John precipitated the
catastrophe by his injustice and dilatoriness. The ease with which
Normandy was lost shows something more than the incapacity of the King
as a ruler and leader—John Softsword as contemporary writers
contemptuously call him. It shows that the feudal army of Normandy had
come to regard the English Sovereign as an alien monarch, and refused to
fight in support of the rule of a foreigner. The unwillingness of the
English nobles to succour John actively has also its significance. The
descendants of the men who helped William I. to conquer England had now
lost all interest in the land from which they came. They were now purely
English landowners, and very different from the original Norman baronage
whose interests, like their estates, had been equally divided on both
sides of the Channel.

The death of Archbishop Hubert Walter in July, 1205, deprived King John
of the services of the most experienced statesman in England. It did
more, for it marked the termination of the long friendship between the
English Crown and the National Church. Its immediate effect was to
create a vacancy, the filling of which led to a bitter quarrel with
Rome.

John failed, as usual, to recognize the merits of abler men, and saw in
the death of his great Justiciar and Archbishop only the removal of an
unwelcome restraint, and the opening to the Crown of a desirable piece
of patronage. He prepared to strain to the utmost his rights in the
election of a successor to the See of Canterbury, in favour of one of
his own creatures, a certain John de Grey, already by royal influence
Bishop of Norwich. Unexpected opposition to his will was offered by the
canons of the Cathedral Church, who determined on a bold policy, namely,
to turn their nominal right of canonical election into a reality, and to
appoint their own nominee, without waiting either for the King’s
approval or the co-operation of the suffragan bishops of the Province,
who, during the last three vacancies, had put forth a claim to
participate in the election, and had invariably used their influence on
behalf of the King’s nominee. Reginald, the sub-prior, was secretly
elected by the monks, and hurried abroad to obtain confirmation at Rome
before the appointment was made public. Reginald’s vanity prevented his
keeping his pledge of secrecy, and a rumour reached the ear of John, who
brought pressure to bear on the monks, now frightened at their own
temerity, and secured de Grey’s appointment in a second election. The
Bishop of Norwich was actually enthroned at Canterbury, and invested by
the King with the temporalities of the See. All parties now sent
representatives to Rome. This somewhat petty squabble benefited none of
the original disputants; for the astute Innocent III. was quick to see
an opportunity for papal aggrandisement. Both elections were set aside
by decree of the Papal Curia, and the emissaries of the various parties
were coerced or persuaded to appoint there and then in the Pope’s
presence the Pope’s own nominee, a certain Cardinal, English-born, but
hitherto little known in England, Stephen Langton by name, destined to
play an important part in the future history of the land of his birth.

John refused to view this triumph of papal arrogance in the light of a
compromise—the view diplomatically suggested by Innocent. The King, with
the hot blood common to his race, and the bad judgment peculiar to
himself, rushed headlong into a quarrel with Rome which he was incapable
of carrying to a successful issue. The details of the struggle, the
interdicts and excommunications hurled by the Pope, and John’s measures
of retaliation against the unfortunate English clergy, need not be
discussed, since they do not directly affect the main plot which
culminated at Runnymede.

John was not without some measure of sagacity of a selfish and
short-sighted sort, but was completely devoid of far-seeing statecraft.
One day he was to reap the fruits of this quarrel in bitter humiliation
and in the defeat of his most cherished aims; but, for the moment, the
breach with Rome seemed to lead to a triumph for the King. The papal
encroachments furnished him with a suitable pretext for confiscating the
property of the clergy. Thus his Exchequer was amply replenished, while
he was able for a time to conciliate his most inveterate opponents, the
Northern barons, by remitting during several years the hated burden of a
scutage, which, in other periods of his reign, tended to become a yearly
imposition. John had no intention, however, to forego his right to
resume the practice of annual scutages whenever it suited him to do so.
On the contrary, he executed a measure intended to make them more
remunerative in the future. This was the great Inquest of Service
ordered on 1st June, 1212.[4]

-----

Footnote 4:

See Round, _Commune of London_, 273. This measure is discussed _infra_
pp. 91-2.

-----

During these years, however, John temporarily relaxed the pressure on
his feudal tenants. His doing so failed to gain back any of their
goodwill, while he broadened the basis of future resistance by shifting
his oppressions to the clergy and through them to the poor.

Some incidents of the autumn of 1212 require brief notice, as well from
their own inherent interest as because they find an echo in the words of
Magna Carta. Serious trouble had arisen with Wales. Llywelyn (who had
married John’s natural daughter Joan, and had consolidated his power
under protection of the English King) now seized the occasion to cross
the border, while John was preparing his schemes for a new continental
expedition. The King changed his plans, and prepared to lead his troops
to Wales instead of France. A muster was summoned for September at
Nottingham, and John went thither to meet them. Before tasting meat, as
we are told in Roger of Wendover’s graphic narrative, he hanged
twenty-eight Welsh hostages, boys of noble family, whom he held as
sureties that Llywelyn would keep the peace.[5]

-----

Footnote 5:

R. Wendover, III. 239.

-----

Almost immediately thereafter, two messengers arrived simultaneously
from Scotland and from Wales with unexpected tidings. John’s daughter,
Joan, and the King of Scots, each independently warned him that his
English barons were prepared to revolt, under shelter of the Pope’s
absolution from their allegiance, and either to slay him or betray him
to the Welsh. The King dared not afford them so good an opportunity. In
a panic he disbanded the feudal levies; and, accompanied only by his
mercenaries, moved slowly back to London.[6]

-----

Footnote 6:

W. Coventry, II. 207; R. Wendover, III. 239.

-----

Two of the barons, Robert Fitz-Walter, afterwards the Marshal of the
army which, later on, opposed John at Runnymede, and Eustace de Vesci,
showed their knowledge of John’s suspicions (if they did not justify
them) by withdrawing secretly from his Court and taking to flight. The
King caused them to be outlawed in their absence, and thereafter seized
their estates and demolished their castles.[7]

-----

Footnote 7:

From their possible connection with the wording of the famous chapter
39 of Magna Carta, it may be worth while to quote the exact words in
which Ralph de Coggeshall, _Chronicon Anglicanum_, p. 165, describes
this event, which he places (probably wrongly) in the year 1213.—“Rex
Eustachium de Vesci et Robertum filium Walteri, in comitatibus tertio
requisitos, cum eorum fautoribus utlaghiari fecit, castra eorum
subvertit, praedia occupavit.”

-----

These events of September, 1212, rudely shook John out of the false
sense of security in which he had wrapped himself a few months earlier.
In the Spring of the same year, he had still seemed to enjoy the full
tide of prosperity; and he must have been a bold prophet who dared to
foretell, as Peter of Wakefield did foretell, the speedy downfall of the
King—a prophecy the main purport of which (although not the details),
was actually accomplished.[8]

-----

Footnote 8:

See Miss Norgate, _John Lackland_, 170, and authorities there cited.

-----

John’s apparent security was deceptive; he had underestimated the powers
arrayed against him. Before the end of that year he had realized, in a
sudden flash of illumination, that the Pope was too strong for him,
circumstanced as he then was. It may well be that, if John’s throne had
rested on a solid basis of his subjects’ love, he might have defied with
impunity the thunders of Rome; but, although he was still an
unrestrained despot, his despotism now rested on a hollow foundation.
His barons, particularly the eager spirits of the north, refrained from
open rebellion merely until a fit opportunity should be offered them.
The papal excommunication of a King relieved his subjects of their oaths
of allegiance, and this might render their deliberate revolt dangerous
and perhaps fatal. At this critical juncture Innocent played his leading
card, inviting the King of France to act as the executor of the sentence
of excommunication against his brother King. John at once realized that
the time had come to make his peace with Rome.

Perhaps we should admire the sudden inspiration which showed the King
that his game had been played and lost, while we regret the humiliation
of his surrender, and the former blindness which could not see a little
way ahead.

On 13th May, 1213, John met Pandulf, the papal legate, and accepted
unconditionally his demands, the same which he had refused
contemptuously some months before. Full reparation was to be made to the
Church. Stephen Langton was to be received as archbishop in all honour
with his banished bishops, friends and kinsmen. All church property was
to be restored, with compensation for damage done. One of the minor
conditions of John’s absolution was the restoration to Eustace de Vesci
and Robert Fitz-Walter of the estates which they persuaded Innocent had
been forfeited because of their loyalty to Rome.[9]

-----

Footnote 9:

_Ibid._, 292–3.

-----

John’s humiliation did not stop even here. Two days later he resigned
the Crowns of England and Ireland, and received them again as the Pope’s
feudatory, promising to perform personal homage should occasion allow.
Such was the price which the King was now ready to pay for the Pope’s
active alliance against his enemies at home and abroad, the former
submission having merely bought off the excommunication. John hoped thus
to disentangle himself from his growing difficulties, and so to be free
to avenge himself on his baronial enemies. The surrender of the Crown
was embodied in a formal legal document which bears to be made by John,
“with the common council of our barons.” Were these merely words of
form? They may have been so when first used; yet two years later the
envoys of the insurgent barons claimed at Rome that the credit (so they
now represented it) for the whole transaction lay with them. Perhaps the
barons did consent to the surrender, thinking that to make the Pope lord
paramount of England would protect the inhabitants from the
irresponsible tyranny of John; while John hoped (with better reason as
events proved) that the Pope’s friendship would increase his ability to
work his evil will upon his enemies. In any case, no active opposition
or protest seems to have been raised by any one at the time of the
surrender. This step, so repugnant to later writers, seems not to have
been regarded by contemporaries as a disgrace. Matthew Paris, indeed,
writing in the next generation, describes it as “a thing to be detested
for all time”; but then events had ripened in Matthew’s day, and he was
a keen politician rather than an impartial onlooker.[10]

-----

Footnote 10:

The late Cardinal Manning in an article in the _Contemporary Review_
for December, 1875 (since published in book form), on the Pope and
Magna Carta, insists, probably with reason, that contemporary opinion
saw nothing disgraceful in the surrender, rather the reverse.

-----

Stephen Langton, now assured of a welcome to the high office into which
he had been thrust against John’s will, landed at Dover and was received
by the King at Winchester on 20th July, 1213. John swore on the Gospels
to cherish and defend Holy Church, to restore the good laws of Edward,
and to render to all men their rights, repeating practically the words
of the coronation oath. In addition, he promised to make reparation for
all property taken from the Church or churchmen. This oath, with its
accompanying promise, was the condition on which he was to be absolved,
provisionally by Langton, and more formally by a legate, to be sent from
Rome specially for that purpose.

V. The Years of Crisis, 1213–15.

For a brief season after John had made his peace with Rome, he seemed to
enjoy substantial fruits of his diplomacy. Once more the short-sighted
character of his abilities was illustrated; a brief triumph led to a
deeper fall. The King for the moment considered, with some show of
reason, that he had regained the mastery of his enemies at home and
abroad. Philip’s threatened invasion had to be abandoned; the people
renewed their allegiance on the removal of the papal sentence; the
barons had to reconcile themselves as best they could, awaiting a better
opportunity to rebel. If John had confined himself to home affairs, he
might have postponed the final explosion: he could not, however,
reconcile himself to the loss of the great continental heritage of his
ancestors. His attempts to recover Normandy and Anjou, partly by force
of arms and partly by a great coalition, led to new exactions and new
murmurings, while they ended in complete failure, which left him,
discredited and penniless, at the mercy of the malcontents at home.

His projected campaign in Poitou would require all the levies he could
raise. More than once John demanded, and his barons refused, their
feudal service. Many excuses were put forward. At first they declined to
follow a King who had not yet been fully absolved. Yet when Archbishop
Stephen, on 20th July, 1213, removed the papal censure from John at
Winchester, after exacting promises of good government, the northern
barons still refused. Their new plea was that the tenure on which they
held their lands did not compel them to serve abroad. They added that
they were already exhausted by expeditions within England.[11]

-----

Footnote 11:

R. Coggeshall, p. 167.

-----

John took this as open defiance, and determined, with troops at his back
(_per vim et arma_), to compel obedience.

Before his preparations were completed, an important assembly had met at
St. Albans (on 4th August) to make sworn inquest as to the extent of
damage done to churchmen during the years of John’s quarrel with Rome.
The meeting is notable, not merely because of the reason of its summons,
but also because of its composition. It is the earliest national council
in which the principle of representation received recognition (so far as
our records go).[12] Four lawful men, with the reeve, from each village
or manor on the royal demesne, were present, but only, it must be
remembered, in a very mean capacity—only to make a sworn inquest as to
the amount of damage done. Such inquests by the humble representatives
of the villages were quite common locally; the innovation lies in this,
that their verdict was now given in a national assembly. Directions were
issued in the King’s name from the same meeting, commanding sheriffs,
foresters, and others to observe the laws of Henry I. and to abstain
from unjust exactions, as they valued their limbs and lives.[13]

-----

Footnote 12:

Stubbs, _Const. Hist._, I. 566.

Footnote 13:

R. Wendover, III. 261-2.

-----

On 25th August, after John had set out with his mercenaries to punish by
force of arms the refusal of his northern magnates to follow him to the
Continent, as he held them bound to do in terms of their feudal
obligations, Stephen Langton held a meeting with the great men of the
south. Many bishops, abbots, priors and deans, together with some lay
magnates of the southern counties, met him at St. Paul’s, London. The
ostensible object of this assembly was to determine what use the
Archbishop should make of his power to grant partial relaxation of the
interdict still casting its blight over England—which could not be
finally lifted until the legate arrived with fuller powers. If we may
believe Roger of Wendover, more important business was transacted in the
King’s absence. Stephen reminded the magnates that John’s absolution had
been conditional on a promise of good government, and as a standard to
guide them in judging what such government implied, he produced a copy
of Henry I.’s Charter of Liberties. All present swore to “fight for
those liberties, if it were needful, even unto death.” The Archbishop
promised his help, “and a confederacy being thus made between them, the
conference was dissolved.”[14]

-----

Footnote 14:

Roger of Wendover, III. 263-6. Blackstone (_Great Charter_,
Introduction, p. vi.), makes the apposite comment that it seems
unlikely that the discovery by the Archbishop of a charter probably
already well known “should be a matter of such novelty and triumph.”

-----

Stephen Langton, however, desired a peaceable solution if possible, and
three days later we find him, after a somewhat hurried journey, at
Northampton, on the 28th of August, striving earnestly, and with
success, to avert civil war between John and the recalcitrant Crown
tenants in the north.

His line of argument is worthy of especial note. The King, he urged,
must not levy war on his subjects before he had obtained a legal
judgment against them. The substance of this advice should be compared
with the terms of chapter 39 of Magna Carta. John resented the
interference of Stephen in lay matters, and continued his march to
Nottingham; but threats of fresh excommunications caused him at length
to consent to substitute legal process for violence, and to appoint a
day for the trial of the defaulters before the _Curia Regis_—a trial
which never took place.[15]

-----

Footnote 15:

R. Wendover, III. 262-3.

-----

John apparently continued his journey as far north as Durham, but
returned to meet the new papal legate Nicholas, to whom he performed the
promised homage and repeated the formal act of surrender in St. Paul’s
on 3rd October.[16] Having thus completed his alliance with the Pope, he
was confident of worsting his enemies in France and England. As most, if
not all, of the great magnates were against him, he saw that it would be
well to strengthen his position by support of the class beneath them in
the feudal scheme of society. Perhaps it was this that led John to
broaden the basis of the national assembly. The great Council which met
at Oxford on 15th November, 1213, was made notable by the presence, in
addition to the Crown tenants, of representatives of the various
counties. The sheriffs, in the words of the King’s writs, were to cause
to assemble all knights already summoned (that is, the Crown tenants)
and four discreet men of each county “_ad loquendum nobiscum de negotiis
regni nostri_.” Miss Norgate[17] lays stress on the fact that these
writs were issued after the death of the great Justiciar Geoffrey
Fitz-Peter, and before any successor had been appointed. John, she
argues, acted on his own initiative, and is thus entitled to the credit
of being the first statesman to introduce representatives of the
counties into the national assembly. The importance of this precedent
need not be obscured by the selfish nature of the motives to which it
was due. Knights who were tenants of mesne lords (Miss Norgate says
“yeomen”) were invited to act as a counterpoise to the barons. This
innovation anticipated the line of progress afterwards followed by de
Montfort and Edward I. Compared with it, the often-praised provisions of
chapter 14 of Magna Carta must be regarded as antiquated and even
reactionary.

-----

Footnote 16:

The charter recording this act may be read in _New Rymer_, I. 115. It
was sealed not in perishable wax, but in solid gold.

Footnote 17:

_John Lackland_, 195.

-----

In the early spring of 1214, John considered his home troubles ended,
and that he was now free to use against France the coalition formed by
his diplomacy. He went abroad early in February, leaving Peter des
Roches, the unpopular Bishop of Winchester, to keep the peace as
Justiciar, and to guard his interests, in concert with the papal legate.
Although deserted by the northern barons, John relied partly on his
mercenaries, but chiefly on the Emperor Otto and his other powerful
allies. Fortune, always fickle, favoured him at first, only to ruin all
his schemes more completely in the end. The crash came on Sunday, 27th
July, 1214, when the King of France triumphed over the allies at the
decisive battle of Bouvines. Three months later, John was compelled to
sign a five years’ truce with Philip, abandoning all pretensions to
recover his continental dominions.

He had left enemies at home more dangerous than those who conquered him
at Bouvines—enemies who had been watching with trembling eagerness the
vicissitudes of his fortunes abroad. His earlier successes struck dismay
into the malcontents in England, apprehensive of the probable sequel to
his triumphant return home. They waited with anxiety, but not in
idleness, the culmination of his campaign, wisely refraining from open
rebellion until news reached them of his failure or success. Meanwhile,
they quietly organized their programme of reform and their measures of
resistance. John’s strenuous endeavours to exact money and service,
while failing to fill his Exchequer as he hoped, had ripened dormant
hostility into an active confederacy organized for resistance. When
England learned the result of the battle, the barons felt that the
moment for action had arrived.

Even while abroad, John had not relaxed his efforts to wring exactions
from England. Without consent or warning, he had imposed a scutage at
the unprecedented rate of three marks on the knight’s fee. Writs for its
collection had been issued on 26th May, 1214, an exception being indeed
allowed for tenants personally present in the King’s army in Poitou. The
northern barons, who had already refused to serve in person, now refused
likewise to pay the scutage. This repudiation was couched in words
particularly bold and sweeping; they denied liability to follow the King
not merely to Poitou, but to any part of the Continent.[18]

-----

Footnote 18:

See W. Coventry, II. 217, _dicentes se propter terras quas in Anglia
tenent non debere regem extra regnum sequi nec ipsum euntem scutagio
juvare_. The legality of this contention is discussed _infra_, pp.
83-6.

-----

When John returned, in the middle of October, 1214, he found himself
confronted with a crisis unique in English history. During his absence,
the opponents of his misrule had drawn together, formulated their
grievances, and matured their plans. The embarrassments on the Continent
which weakened the King, heartened the opposition. The northern barons
took the lead. Their cup of wrath, which had long been filling,
overflowed when the scutage of three marks was imposed. Within a
fortnight of his landing, John held an interview with the malcontents at
Bury St. Edmunds (on 4th November, 1214).[19] No compromise was arrived
at. John pressed for payment of the scutage, and the barons refused.

-----

Footnote 19:

See Miss Norgate, _John Lackland_, p. 221.

-----

It seems probable that, after John’s retiral, a conference of a more
private nature was held at which, under cloak of attending the Abbey for
prayer, a conspiracy against John was sworn. Roger of Wendover gives a
graphic account of what happened. The magnates came together “as if for
prayers; but there was something else in the matter, for after they had
held much secret discourse, there was brought forth in their midst the
charter of King Henry I., which the same barons had received in London
... from Archbishop Stephen of Canterbury.”[20] A solemn oath was taken
to withdraw their fealty (a threat actually carried into effect on 5th
May of the following year), and to wage war on the King, unless he
granted their liberties; and a date—soon after Christmas—was fixed for
making their formal demands. Meanwhile they separated to prepare for
war. The King also realized that a resort to arms was imminent. While
endeavouring to collect mercenaries, he tried unsuccessfully to sow
dissension among his opponents. In especial, he hoped to buy off the
hostility of the Church by a separate charter which he issued on 21st
November. This professes to be granted “of the common consent of our
barons.” Its object was to gratify the Church by turning canonical
election from a sham into a reality. The election of prelates, great and
small, should henceforward be really free in all cathedral and
conventual churches and monasteries, saving to the Crown the right of
wardship during vacancies. John promised never to deny or delay his
consent to an election, and conferred powers on the electors, if he
should do so, to proceed without him. The King was bitterly disappointed
in his hope that by this bribe he would bring over the national Church
from the barons’ side to his own.

-----

Footnote 20:

R. Wendover, III. 293.

-----

John was probably well aware of what took place at St. Edmunds after he
had left, and he also knew that the close of the year was the time fixed
for the making of demands. He held what must have been an anxious
Christmas at Worcester (always a favourite resting-place of this King),
but tarried only for a day, hastening to the Temple, London, where the
proximity of the Tower would give him a feeling of security. There, on
6th January, 1215, a deputation from the insurgents met him without
disguising that their demands were backed by force. These demands, they
told him, included the confirmation of the laws of King Edward, with the
liberties set forth in Henry’s Charter.

On the advice of the Archbishop and the Marshal, who acted as mediators,
John asked a truce till Easter, which was granted in return for the
promise that he would then give reasonable satisfaction. The Archbishop,
the Marshal, and the Bishop of Ely were named as the King’s securities.

On 15th January, John re-issued the Charter to the Church, and demanded
a renewal of homage from all his subjects. The sheriffs in each county
were instructed to administer the oath in a specially stringent form;
all Englishmen must now swear to “stand by him against all men.”
Meanwhile emissaries were dispatched by both sides to Rome. Eustace de
Vesci, as spokesman of the malcontents, asked Innocent, as overlord of
England, to compel John to restore the ancient liberties, and claimed
consideration on the ground that John’s surrender to the Pope had been
made under pressure put on the King by them—all to no effect. John
thought to propitiate the Pope by taking the cross, a politic measure
(the date of which is given by one authority as 2nd February, and by
another as 4th March), which would also serve to protect him against
personal violence, and which afforded him, as is well illustrated by
several chapters of Magna Carta, a fertile excuse for delay in remedying
abuses. In April, the northern barons, convinced that the moment for
action had arrived, met in arms at Stamford, and after Easter (when the
truce had expired) marched southward to Brackley, in Northampton. There
they were met, on 27th April, by the Archbishop and the Marshal, as
emissaries from the King, who demanded what they wanted. They received
in reply, and took back with them to John, a certain schedule, which
consisted for the most part of ancient laws and customs of the realm,
with an added threat that if the King did not immediately adhibit his
seal the rebels would constrain him by seizing his castles, lands, and
goods.[21]

-----

Footnote 21:

R. Wendover, III. 298.

-----

This schedule may be regarded as a rough draft of the document more
fully drawn out six weeks later, commonly known as the Articles of the
Barons.[22]

-----

Footnote 22:

Is it not possible that the so-called “unknown charter of Liberties”
(see _infra_ under Part V. and Appendix) was the very schedule
mentioned by Wendover? It was drawn up in the form of a charter, so as
to be ready for the immediate imprint of the seal they demanded.

-----

John’s answer, when he read these demands, was emphatic. “Why do not the
barons, with these unjust exactions, ask my kingdom?” Then furious, he
declared with an oath that he would never grant them such liberties,
whereby he would make himself a slave.[23]

-----

Footnote 23:

R. Wendover, III. 298.

-----

On 5th May the barons formally renounced allegiance[24] and chose as
commander, Robert Fitz-Walter, who styled himself piously and
grandiloquently, “Marshal of the army of God and Holy Church.”

-----

Footnote 24:

Blackstone, _Great Charter_, p. xiii., citing the _Annals of
Dunstable_ (p. 43), says they were absolved at Wallingford by a Canon
of Durham.

-----

The insurgents, still shivering on the brink of civil war, delayed to
march southwards. Much would depend on the attitude of London, with its
wealth and central position; and John bade high for the support of its
citizens. On 9th May a new charter[25] was granted to the Londoners, who
now received a long-coveted privilege, the right to elect their mayor
annually and to remove him at the year’s end. This marked the
culmination of a long series of progressive grants in their favour.
Previously the mayor had held office for life, and Henry Fitz-Aylwin,
the earliest holder of the office (appointed perhaps in 1191), had died
in 1213.

-----

Footnote 25:

The Charter appears _Rot. Chart._, p. 207. _Cf._ under chapter 13
_infra_, where the rights of the Londoners are discussed.

-----

Apparently no price was paid for this charter; but John doubtless
expected in return the grateful support of the Londoners, exactly as he
had expected the support of churchmen when he twice granted a charter in
their favour. In both instances he was disappointed. Next day he made,
probably as a measure of delay, an offer of arbitration to the barons.
In the full tide of military preparations, he issued a writ in these
words: "Know that we have conceded to our barons who are against us that
we shall not take or disseise them or their men, nor go against them
_per vim vel per arma_, unless by the law of our land, or by the
judgment of their peers _in curia nostra_, until consideration shall
have been made by four whom we shall choose on our part and four whom
they shall choose on their part, and the lord Pope who shall be oversman
over them"—words worthy of careful comparison with those used in chapter
39 of Magna Carta. The offer could not be taken seriously, since it left
the decision of every vital issue virtually to the Pope, whom the barons
distrusted.[26]

-----

Footnote 26:

The writ is given in _Rot. Pat._, 1. 141, and also in _New Rymer_, I.
128.

-----

Another royal writ, of two days later date, shows a rapid change of
policy, doubtless due to the contemptuous rejection of arbitration. On
12th May, John ordered the sheriffs to do precisely what he had offered
not to do. They were told to take violent measures against the rebels
without waiting for a “judgment of peers” or other formality. Lands,
goods, and chattels of the King’s enemies were to be seized and applied
to his benefit.[27]

-----

Footnote 27:

For writ, see _Rot. Claus._, 204.

-----

The barons, rejecting all offers, marched by Northampton, Bedford, and
Ware, towards the capital. London, in spite of the charter received
eight days earlier, boldly threw in its lot with the insurgents, to whom
it opened its gates on 17th May.[28] The example of London was quickly
followed by other towns and by many hesitating nobles. The confederates
felt strong enough to issue letters to all who still adhered to the
King, bidding them forsake him on pain of forfeiture.

-----

Footnote 28:

Some authorities give 24th May as the date. It must have been the
17th; since _New Rymer_, p. 121, under the date of 18th May, prints a
writ of John, informing Rowland Blaot of the surrender of London to
the barons. This was followed on 20th May (_N.R._, p. 121) by another
royal writ, ordering all bailiffs and other faithful, to molest the
Londoners in every way possible.

-----

John found himself, for the moment, without power of effective
resistance; and, probably with the view of gaining time rather than of
committing himself irretrievably to any abatement of his prerogatives,
agreed to meet his opponents. As a preliminary to this, on 8th June he
issued a safe-conduct for the barons’ representatives to meet him at
Staines within the three days following. This was apparently too short
notice, as on 10th June, John, now at Windsor, granted an extension of
the time and safe-conduct till Monday, 15th June. William the Marshal
and other envoys were dispatched from Windsor to the barons in London
with what was practically a message of surrender. The barons were told
that John “would freely accede to the laws and liberties which they
asked,” if they would appoint a place and day for a meeting. The
intermediaries, in the words of Roger of Wendover,[29] "without guile
carried back to the barons the message which had been guilefully imposed
on them"—implying that John meant to make no promises, except such as
were insincere. Yet the barons, _immenso fluctuantes gaudio_, fixed as
the time of meeting the last day of the extended truce, Monday, 15th
June, at a certain meadow between Staines and Windsor, known as
Runnymede.

-----

Footnote 29:

III. 301.

-----

VI. Runnymede, and after.

On 15th June the King and the Barons met. On the side of the insurgents
appeared a great host; on the monarch’s, merely a small band of
magnates, loyal to the person of the King, but only half-hearted, at the
best, in his support. Their names may be read in the preamble to the
Charter: the chief among them, Stephen Langton, still nominally neutral,
was known to be in full sympathy with the rebels.

Dr. Stubbs,[30] maintaining that the whole baronage of England was
implicated in these stirring events, gives a masterly analysis of its
more conspicuous members into four great groups: (1) the Northumbrani or
Norenses of the chroniclers, names famous in the northern counties, who
had been the first to raise the standard of open revolt, and retained
the lead throughout; (2) the other nobles from all parts of England, who
had shown themselves ready from an early date to co-operate with the
Northerners—“the great baronial families that had been wise enough to
cast away the feudal aspirations of their forefathers, and the rising
houses which had sprung from the ministerial nobility”; (3) the moderate
party who, ready to worship the rising sun, deserted John after London
had joined the rebels, including even the King’s half-brother (the Earl
of Salisbury), the loyal Marshal, Hubert de Burgh, and other ministers
of the Crown, whose names may be read in the preamble to the Charter;
and (4) the tools of John’s misgovernment, mostly men of foreign birth,
tied to John by motives of interest as well as by personal loyalty,
since their differences with the baronial leaders lay too deep for
reconciliation, most of whom are branded by name in Magna Carta as for
ever incapable of holding office in the realm. These men of desperate
fortunes alone remained whole-hearted on John’s side when the crisis
came.[31]

-----

Footnote 30:

_Const. Hist._, I. 581-3.

Footnote 31:

The individual names may be read in Stubbs, _Ibid._; and readers in
search of biographical knowledge are referred to Bémont, _Chartes_,
39–40, and for fuller, though less reliable information, to Thomson,
_Magna Charta_, 270–322.

-----

When the conference began, the fourth group was not near John, being
otherwise occupied in the command of castle garrisons or of troops
actually in the field; the third group, a small one, was with him; and
the first and second groups were, in their imposing strength, arrayed
against him.

Unfortunately, the vagueness of contemporary accounts prevents us from
reproducing with certainty the progress of negotiations on that eventful
15th of June and the few days following. Some inferences, however, may
be drawn from the words of the completed Charter itself and from those
of several closely related documents. One of these, the Articles of the
Barons,[32] is sometimes supposed to be identical in its terms with the
Schedule which had been already presented to the King’s emissaries, at
Brackley, on the 27th of April.[33] It is more probable, however, that
during the seven eventful weeks which had since elapsed, the original
demands had been somewhat modified. It is not unlikely that the interval
had been employed in making the terms of the suggested agreement more
full and specific. The Schedule of April was probably only a rough draft
of the Articles as we know them, and these formed in their turn the new
draft on which the completed Charter was based. Articles and Charter are
alike authenticated with the impress of the King’s great seal, an
indisputable proof that the terms of each of them actually received his
official consent.

-----

Footnote 32:

See Appendix.

Footnote 33:

See _supra_, p. 40.

-----

This fact affords a strong presumption that an interval must have
elapsed between the King’s acceptance of the first and the final
completion of the second; since it would have been absurd to seal what
was practically a draft at the same time as the principal instrument.
The probability of such an interval must not be lost sight of in any
attempt to reconstruct in chronological sequence the stages of the
negotiations at Runnymede.

A few undoubted facts form a starting-point on which inferences may be
based. John’s headquarters were fixed at Windsor from Monday, 15th June,
to the afternoon of Tuesday the 23rd. On each of these nine days (with
the possible exception of the 16th and 17th) he visited Runnymede to
confer with the barons.[34]

-----

Footnote 34:

So far there can be no doubt. Either on the _Close Rolls_ or on the
_Patent Rolls_ (q.v.) copies of one or more writs are preserved dated
from Windsor on each of these days, and also one or more dated from
Runnymede on 15th, 18th, 19th, 20th, 21st, 22nd, and 23rd June.

-----

Two crucial stages in these negotiations were clearly reached on Monday
the 15th (the date borne by Magna Carta itself) and on Friday the 19th
(the day on which John in more than one writ stated that peace had been
concluded). What happened exactly on each of these two days is, however,
to some extent, matter of conjecture. It is here maintained, with some
confidence, that on Monday the substance of the barons’ demands was
provisionally accepted and that the Articles were then sealed; while on
Friday this arrangement was finally confirmed and Magna Carta itself, in
several duplicates, was sealed.

To justify these inferences, a more detailed examination of the evidence
available will be necessary. The earliest meeting between John and the
baronial leaders, all authorities are agreed, took place on Monday, 15th
June, probably in the early morning. The barons undoubtedly came to the
conference provided with an accurate list of those grievances which they
were determined to have redressed. On the previous 27th of April the
rebels had sent a written Schedule to the King, along with a demand that
he should signify his acceptance by affixing his seal;[35] they are not
likely to have been less fully prepared on 15th June.

-----

Footnote 35:

R. Wendover, III. 298.

-----

John, on his part, would naturally try a policy of evasions and delays;
and, when these were clearly useless, would then endeavour to secure
modifications of the terms offered. These tactics met with no success.
His opponents demanded a plain acceptance of their plainly expressed
demands. Before nightfall, John, overawed by their firmness and by the
numbers of the armed force behind them, was constrained to surrender.
Leaving minor points of detail to be subsequently adjusted, he
provisionally accepted the substance of the long list of reforms put
before him by the barons, on the understanding that they would renew
their allegiance and give him some security that they would keep the
peace. In proof of this bargain, the heads of the agreement were rapidly
engrossed on parchment to the number of forty-nine, and the great seal
was impressed on the wax of the label, where it may still be seen.[36]

-----

Footnote 36:

In the British Museum. See _infra_ under Part V.

-----

The parchment containing these Articles of the Barons may have been the
identical Schedule actually prepared by the rebel leaders previous to
the meeting; but, more probably, it was written out at Runnymede during
the conference on the 15th (or between two conferences on that day) by
one of the clerks of the royal Chancery. This is more in keeping with
its heading (written in the same hand, and apparently at the same time
as the body of the deed), _Ista sunt capitula quae barones petunt et
dominus rex concedit_.

Likely enough, it followed closely the words of the baronial Schedule;
but it may have contained some slight modifications in favour of the
Crown. One such, at least, was inserted, apparently as an afterthought
(on the intervention of the King perhaps, or one of his friends);
articles 45 and 46, as originally conceived, have been subsequently
connected by a rude bracket, and a qualifying proviso added which
practically bestowed on the Archbishop the powers of an arbitrator to
determine whether both articles should be altered in favour of the Crown
or no.[37] The entire document is in a running hand, and appears to have
been rapidly though carefully written. Its engrossment upon parchment
with a quill pen must have occupied several hours; but a diligent
copyist would not find it beyond his powers to complete the task in one
day.

-----

Footnote 37:

Cf. Blackstone, _Great Charter_, xvii.: "subjoined in a more hasty
hand, ... as if added at the instance of the King’s commissioners upon
more mature deliberation."

-----

Tuesday, Wednesday and Thursday were consumed in further negotiations as
to matters of detail; in reducing the heads of agreement already
accepted to the more binding form of a feudal charter; and in engrossing
several copies for greater security. Everything was, however, ready for
a final settlement on Friday the 19th. At the conference held on that
day the conclusion of the final concord probably included several steps;
among others, the nomination by the opposition, with the King’s tacit
acquiescence, of twenty-five barons to act as Executors under chapter
61,[38] the solemn sealing and delivery of several original copies of
the Great Charter in its final form, the taking of an oath by all
parties to abide by its provisions, and the issue of the first batch of
writs of instructions to the sheriffs.

-----

Footnote 38:

See _infra_ under that chapter.

-----

Blackstone[39] thinks that the barons on that day renewed their oaths of
fealty and homage. It is more probable that, until John had actually
carried out the more pressing reforms promised in Magna Carta, they
refused formally to swear allegiance, undertaking, however, in the
hearing of the two archbishops and other prelates, that they would keep
the peace and furnish security to that effect in any form that John
might name, except only by delivery of their castles or of hostages.[40]

-----

Footnote 39:

_Great Charter_, p. xxiv.

Footnote 40:

See Protest of Archbishops _infra_, p. 52.

-----

The statement that Friday, 19th June, was the day on which peace was
finally concluded rests on unmistakable evidence. On 21st June, John
wrote from Windsor to William of Cantilupe, one of his captains,
instructing him not to enforce payment of any unpaid balances of
“tenseries”[41] demanded since the preceding Friday, “on which day peace
was made between the King and his barons.”[42]

-----

Footnote 41:

Mr. Round explains this word in a learned appendix (_Geoffrey de
Mandeville_, p. 414) to mean “blackmail,” _i.e._ “money extorted under
pretence of protection or defence.”

Footnote 42:

See _Rot. Claus._, p. 225 (17 John membrane 31). The evidence of this
writ does not stand alone. In another writ on the same membrane of the
_Close Rolls_, dated 19th June, John informs his half-brother, the
Earl of Salisbury, that he has concluded peace, and instructs him to
restore certain lands and castles immediately, as this had been made a
condition of peace. See also the writ to Stephen Harengod _infra_, p.
49.

-----

It has been taken for granted by many historians that the peace was
finally concluded, and the Great Charter actually sealed and issued on
the 15th, not on the 19th.[43] The fact that all four copies of Magna
Carta still extant bear this date seems to have been regarded as
absolutely conclusive on this point. Experts in diplomatics, however,
have long been aware that elaborate charters and other documents, which
occupied a considerable time in preparation, usually bore the date, not
of their actual execution, but of the day on which were concluded the
transactions of which they form the record. Legal instruments were thus
commonly ante-dated (as it would be reckoned according to modern legal
practice). Thus it is far from safe to infer from Magna Carta’s mention
of its own date that the great seal was actually adhibited on the 15th
June.

-----

Footnote 43:

Blackstone, however (_Great Charter_, xv.), speaks of a “conference
which lasted for several days, and did not come to a conclusion till
Friday, the 19th June.”

-----

Such presumption as exists points the other way. The Great Charter is a
lengthy and elaborate document, and it is barely possible that any one
of the four originals known to us could have been engrossed (to say
nothing of the adjustment of the substance and form) within one day. Not
only is it much longer than the Articles on which it is founded; but
even the most casual comparison will convince any unbiassed mind of the
slower rate of engrossment of the Charter. All four copies show marks of
great deliberation, while those at Lincoln and Salisbury in particular
are exquisite models of leisurely and elaborate penmanship. The highly
finished initial letters of the first line and other ornamental features
may be instructively compared with the plain, business-like, rapid hand
of the Articles. How many additional copies now lost were once in
existence bearing the same date, it is impossible to say; but each of
those still extant may well have occupied four days in the writing.[44]

-----

Footnote 44:

Miss Norgate, _John Lackland_, p. 234, acquiesces in the view
generally received, fixing Monday as the day on which the final
concord was arrived at, but she relies for evidence on a more than
doubtful interpretation of what is undoubtedly an error in the copy of
a writ by King John appearing on the _Patent Rolls_. This writ, which
as copied in the _Rolls_ bears to be dated 18th June (erroneously as
will immediately be shown), is addressed to Stephen Harengod (in terms
closely resembling those of the writ already cited from the _Close
Rolls_ addressed to William of Cantilupe), announcing _inter alia_
that terms of peace had been agreed upon “last Friday.” Miss Norgate
contends with reason that there must be a mistake somewhere, since on
the Friday preceding the 18th, negotiations had not even begun. She is
confident that "the ‘die Veneris’ which occurs three times in the writ
is in each case an unquestionable, though unaccountable, error for
‘die Lunae.’" Yet, it is unlikely that a scribe writing three days
after so momentous an event could have mistaken the day of the week.
It is infinitely more probable that in writing xxiij. he formed the
second “x” so carelessly that it was mistaken by the enrolling clerk
for a “v.” The correct date is thus the 23rd, and the reference is to
Friday the 19th. This presumption becomes a certainty by comparison
with the words of the writ to William of Cantilupe, dated the 21st (of
the existence of which Miss Norgate was probably not aware).

A comparison between the two documents shows few changes of importance
in the tenor.[45]

-----

Footnote 45:

Blackstone, _Great Charter_, xviii., has given a careful analysis of
the points of difference.

-----

The one outstanding addition is the insertion, in an emphatic form, both
at the beginning and at the end of the Charter, of a general declaration
in favour of the freedom and rights of the Church. The inference seems
to be that a new influence was brought to bear, between the preparation
of the draft and that of the Charter. It was the Archbishop of
Canterbury and his friends who thus converted the original baronial
manifesto into something more nearly resembling a declaration of rights
for the nation at large. One or two minor alterations seem slightly to
benefit the Crown,[46] while several others, rightly viewed, suggest an
influence at work unfavourable to the towns and trading classes.[47]

-----

Footnote 46:

_E.g._ chapters 48 and 52. For alterations directed against the
trading classes, see chapters 12, 13, 35, and 41 _infra_.

Footnote 47:

Miss Norgate, _John Lackland_, 233, takes a different view, holding
that the influence of Stephen Langton dates from an earlier period.
The original articles “are obviously not the composition of the barons
mustered under Robert Fitz-Walter,” who could never have risen to “the
lofty conception embodied in the Charter—the conception of a contract
between King and people which should secure equal rights to every
class and every individual in the nation.” The correctness of this
estimate is discussed _infra_.

-----

In addition to the various originals of the Charter issued under the
great seal, chapter 62 provides that authenticated copies should be made
and certified as correct by “Letters Testimonial,” under the seals of
the two archbishops with the legate and the bishops. This was done, but
the exact date of their issue is unknown.[48]

-----

Footnote 48:

No specimen of these Letters Testimonial is known to exist, but a copy
is preserved on folio 234 of the _Red Book of the Exchequer_. See
Appendix.

-----

The same Friday which thus saw the completion of negotiations saw also
the issue of the first batch of letters of instructions to the various
sheriffs, telling them that a firm peace had been concluded, by God’s
grace, between John and the barons and freemen of the kingdom, as they
might hear and see by the Charter which had been made, and which was to
be published throughout the district, and firmly observed. Each sheriff
was further commanded to cause all in his bailiwick to make oath
according to the form of the Charter to the twenty-five barons or their
attorneys, and further, to see to the appointment of twelve knights of
the county in full County Court, in order that they might declare upon
oath all evil customs requiring to be reformed, as well of sheriffs as
of their servants, foresters, and others.[49] This was held to apply
chiefly to the redress of forest grievances.

-----

Footnote 49:

See _Rot. Pat._, I. 180, and _Select Charters_, 306–7.

-----

Apparently, four days elapsed before similar letters, accompanied by
copies of the Charter, could be sent to every sheriff. During the same
few days, several writs (some of which have already been mentioned) were
dispatched to military commanders with orders to stop hostilities. A few
writs, dated mostly 25th June, show that some obnoxious sheriffs had
been removed to make way for better men. Hubert de Burgh, a moderate
though loyal adherent, and a man generally respected, was appointed
Justiciar in room of the hated Peter des Roches. On 27th June, another
writ directed the sheriffs and the elected knights to punish, by
forfeiture of lands and chattels, all those who refused to swear to the
twenty-five Executors within a fortnight. All these various instructions
may be regarded as forming part of the settlement of the 19th of June,
and were dispatched with the greatest rapidity possible.

Even after the settlement arrived at on Friday, some minor points of
dispute remained. The barons refused to be satisfied without substantial
security that the reforms and restorations agreed on would be carried
out by the King; they demanded that both the city of London and the
Tower of London should be left completely under their control as pledges
of John’s good faith, until 15th August, or longer, if the reforms had
not then been completed. John obtained a slight modification of these
demands; he surrendered the city of London to his opponents, as they
asked; but placed the Tower in the neutral custody of the Archbishop of
Canterbury. These conditions were embodied in a supplementary treaty,
which describes itself as _Conventio facta inter Regem Angliae et
barones ejusdem regni_.[50] If the barons distrusted John, he was
equally distrustful of them, demanding the security they had promised
for fulfilment of their part of the original compact. He now asked a
formal charter in his favour that they would observe the peace and their
oaths of homage, which they point-blank refused to grant. The King
appealed to the prelates without effect. The archbishops, with several
suffragans, however, put a formal protest on record of the barons’
promise and subsequent refusal to keep it.[51]

-----

Footnote 50:

_New Rymer_, I. 133. See Appendix. It is undated, but must be later
than the letters to sheriffs concerning election of twelve knights, to
which it alludes.

Footnote 51:

_Rot. Pat._, p. 181. As we have to depend for our knowledge of this
important protest on one copy, engrossed on the back of a membrane of
an official roll (No. 18 of John’s 17th year), it is possible to doubt
its genuineness; but it is unlikely to be purely a forgery.

-----

The two archbishops and their brother prelates entered a second protest
of a different nature. They seem to have become alarmed by the drastic
measures adopted or likely to be adopted, founded on the verdicts of the
twelve knights elected in each county to carry into effect the various
clauses of the Great Charter directed against abuses of the Forest laws.
Apparently, it was feared that reforms of a sweeping nature would
result, and practically abolish the royal forests altogether.
Accordingly, they placed their protest formally on record—acting
undoubtedly in the interests of the Crown, feeling that as mediators
they were bound in some measure to see fairplay. They objected to a
strained construction of the words of the Charter, holding that the
articles in question ought to be understood as limited; all customs
necessary for the preservation of the forests should remain in
force.[52]

-----

Footnote 52:

See _Rot. Pat._ and _New Rymer_, I. 134.

-----

The provisions referred to were, as is now well known, chapters 47, 48,
and 53 of Magna Carta itself, and not, as Roger of Wendover states, a
separate Forest Charter.[53] That writer was led into this unfortunate
error by confusing the charter granted by King John with its re-issue by
his son in 1217, when provisions for the reform of the forest law _were_
framed into a separate supplementary charter. From Roger’s time onwards,
the charters of Henry III. were reproduced in all texts and treatises,
in place of the real charter actually granted by John. Sir William
Blackstone was the first commentator to discover this grievous error,
and he clearly emphasized the grave differences between the terms
granted by John and those of his son, showing in particular that the
former king granted no separate Forest Charter at all.[54]

-----

Footnote 53:

See R. Wendover, III. 302-318.

Footnote 54:

_Great Charter_, p. xxi.

-----

Before the conferences at Runnymede came to an end, confidence in the
good intentions of the twenty-five Executors, drawn it must be
remembered entirely from the section of the baronage most extreme in
their views and most unfriendly to John, seems to have been completely
lost. If we may believe Matthew Paris,[55] a second body or committee of
thirty-eight barons was nominated, representing other and more moderate
sections of the baronage, to act as a check on the otherwise
all-powerful oligarchy of twenty-five despots. If this second committee
was ever really appointed, no details have been preserved as to the date
of its selection, or as to the exact powers entrusted to it.

-----

Footnote 55:

_Chron. Maj._, II. 605-6.

-----

If the rebel leaders expected to arrive at a permanent settlement of
their disputes when they came to meet the King on the morning of the
15th day of June, it must have been evident to all before the 23rd, that
John only made the bargain in order to gain time and strength to break
it. Three weeks, indeed, before John granted Magna Carta, he had begun
his preparations for its repudiation. In a letter of 29th May, addressed
to the Pope, there may still be read his own explanation of the causes
of quarrel, and how he urged, with the low cunning peculiar to him, that
the hostility of the rebels prevented the fulfilment of his vow of
crusade. In conclusion, he expressed his willingness to abide by the
Pope’s decision on all matters at issue.

John, then, at Runnymede was merely waiting for two events which would
put him in a position to throw off the mask—the favourable answer he
confidently expected from the Pope, and the arrival of foreign troops.
Meanwhile, delay was doubly in his favour; since the combination formed
against him was certain, in a short time, to break up. It was, in the
happy phrase of Dr. Stubbs,[56] a mere “coalition,” not an "organic
union"—a coalition, too, in momentary danger of dissolving into its
original factors. The barons were without sufficient sinews of war to
carry a protracted struggle to a successful issue. Very soon, both sides
to the treaty of peace were preparing for war. The northern barons,
anticipating the King in direct breach of the compact, began to fortify
their castles. John, in equally bad faith, wrote for foreign allies,
whilst he anxiously awaited the Pope’s answer to his appeal.

-----

Footnote 56:

Stubbs, _Const. Hist._, II. 3.

-----

Langton and the bishops still struggled to restore harmony. The 16th
July was fixed for a new conference. John did not attend; but it was
probably at this Council that in his absence a papal bull was read
conferring upon a commission of three—the Bishop of Winchester, the
Abbot of Reading, and the legate Pandulf—full powers to excommunicate
all “disturbers of the King and Kingdom.” No names were mentioned, but
these powers might clearly be used against Langton and his friends. The
execution of this sentence was delayed, in the groundless hope of a
compromise, till the middle of September, when two of the commissioners,
Pandulf and Peter of Winchester, demanded that the Archbishop should
publish it; and, on his refusal, they forthwith, in terms of their papal
authority, suspended him from his office. Stephen left for Rome, and his
absence at a critical juncture proved a national misfortune. The
insurgents lost in him, not only their bond of union, but also a
wholesome restraint. His absence must be reckoned among the causes of
the royalist reaction soon to take place. After his departure, a papal
bull arrived (in the end of September) dated 24th August. This is an
important document in which Innocent, in the plainest terms, annuls and
abrogates the Charter, after adopting all the facts and reproducing all
the arguments furnished by the King. Beginning with a full description
of John’s wickedness and repentance, his surrender of England and
Ireland, his acceptance of the Cross, his quarrel with the barons; it
goes on to describe Magna Carta as the result of a conspiracy, and
concludes, “We utterly reprobate and condemn any agreement of this kind,
forbidding, under ban of our anathema, the aforesaid king to presume to
observe it, and the barons and their accomplices to exact its
performance, declaring void and entirely abolishing both the Charter
itself and the obligations and safeguards made, either for its
enforcement or in accordance with it, so that they shall have no
validity at any time whatsoever.”[57]

-----

Footnote 57:

The original bull with the seal of Innocent still attached is
preserved in the British Museum (Cotton, Cleopatra E 1), and is
carefully printed by Bémont, _Chartes des Libertés Anglaises_, p. 41.
It may also be read _inter alia_ in Rymer and in Blackstone.

-----

A supplementary bull, of one day’s later date, reminded the barons that
the suzerainty of England belonged to Rome, and that therefore nothing
could be done in the kingdom without papal consent.[58] Thereafter, at a
Lateran Council, Innocent formally excommunicated the English barons who
had persecuted “John, King of England, crusader and vassal of the Church
of Rome, by endeavouring to take from him his kingdom, a fief of the
Holy See.”[59]

-----

Footnote 58:

The text is given by Rymer.

Footnote 59:

See Rymer, and Bémont, _Chartes_, xxv.

-----

Meanwhile, the points in dispute had been submitted to the rude
arbitrament of civil war, in which the first notable success fell to
King John in the capture, by assault, of Rochester Castle on 30th
November. The barons had already made overtures to Louis, the French
King’s son, to whom they promised as a reward for his help, yet not
perhaps with entire sincerity, the crown of England. Towards the end of
November, some seven thousand French troops arrived in London, where
they spent the winter—a winter consumed by John in marching from place
to place meeting, on the whole, with success, especially in the east of
England. John’s best ally was the Pope, who had no intention of allowing
a French Prince to usurp the throne of one who was now his humble
vassal. Gualo was dispatched from Rome to Philip, King of France,
forbidding his son’s invasion, and asking rather protection and
assistance for John as a papal vassal. Philip, anxious to meet the force
of the Pope’s arguments with some title to intervene, of more weight
than the invitation of a group of rebels, replied by an ingenious string
of fictions. He endeavoured to find defects in John’s title as King of
England, and to argue that therefore John was not _in titulo_ to grant
to the Pope the rights of an overlord. Among other arguments it was
urged that John had been convicted of treason while Richard was King,
and that this sentence involved forfeiture by the traitor of all rights
of succession to the Crown. Thus the Pope’s claim of intervention was
invalid, while Prince Louis justified his own interference by some
imagined right which he ingeniously argued had passed to him through the
mother of his wife.

John had not relied solely on papal protection. A great fleet, collected
at Dover to block Louis with his smaller vessels in Calais harbour, was
wrecked on 18th May, 1216. The channel thus cleared of English ships,
the French Prince, setting sail on the night of the 20th May, landed
next morning without opposition. John, reduced to dependence on
mercenaries, did not dare oppose his landing. Gualo, now in England, on
28th May excommunicated Louis by name, and laid London under interdict.
Such thunderbolts had now lost their blasting power by frequent
repetition, and produced no effect whatever. On 2nd June, Louis entered
London amid acclamations, and marched against John at Winchester, which
he reached on 14th June, after John had fled. Ten days later, the
ancient capital of Wessex with its castles surrendered. Next day, the
French Prince attacked Dover, whose brave defender, Hubert de Burgh,
after some months of stubborn resistance, obtained a truce, on 14th
October, in order that the garrison might communicate with the King.
Before Hubert’s messengers could reach him, John was dying. During these
months, when the verdict of war was going against him in the south, he
had been acting in the north strenuously, and not without success. The
issue still trembled in the balance. A royalist reaction had begun. The
insolence of the French troops caused desertions from the barons.

On 10th October John, after being feasted to excess by the loyal
burghers of Lynn, fell into an illness from which he never really
recovered. Nine days later, worn out by his wars, and by excitement and
chagrin, at this critical juncture when fortune might have taken any
sudden turn, he died at Newark Castle, in the early hours of the morning
of 19th October, 1216. His death saved the situation, rendering a
compromise possible. Almost immediately, there took place an entirely
new grouping of political forces inside and outside of England. A silent
compromise was effected, all parties returning gradually to their
natural allegiance to the son of John, on the understanding that the
Charter in its main features should be accepted as the basis of his
government. Prince Louis was soon discarded. Rome also fell into line;
the death of Innocent, on 16th June, 1216, had been equally opportune
with the death of John, four months later, removing an obstacle from the
path of peace. Gualo, in the name of Innocent’s successor, consented to
the re-issue of the Charter by the advisers of the young King Henry.

PART II.
FEUDAL GRIEVANCES AND MAGNA CARTA.

I. The Immediate Causes of the Crisis.

Many attempts have been made to explain why the storm, long brewing,
broke at last in 1214, and culminated precisely in June of the following
year. Sir William Blackstone[60] shows how carefully historians have
sought for some one specific feature or event, occurring in these years,
of such moment as by itself to account for the rebellion crowned for the
moment with success at Runnymede. Thus Matthew Paris, he tells us,
attributes the whole movement to the sudden discovery of Henry I.’s
charter, long forgotten as he supposes, while other chroniclers agree in
assigning John’s inordinate debauchery as the cause of the civil
dissensions, dwelling on his personal misdeeds, real and imaginary.
“Sordida foedatur foedante Johanne, gehenna.”[61] Blackstone himself
suggests a third event, the appointment as Regent in John’s absence of
the hated alien and upstart, Peter des Roches, and his misconduct in
that office.

-----

Footnote 60:

_The Great Charter_, p. vii.

-----

There is absolutely no necessity to seek in such trivial causes the
explanation of a great movement, really inevitable, the antecedents of
which were deeply rooted in the past. The very success of Henry
Plantagenet in performing the great task of restoring order in England,
for effecting which special powers had been allowed to him, made the
continuance of these powers to his successors unnecessary. From the day
of Henry’s death, if not earlier, forces were at work which only
required to be combined in order to control the licence of the Crown.
When the battle of order had been finally won—the complete overthrow of
the rebellion of 1173 may be taken as a crucial date in this
connection—the battle of liberty had, almost necessarily, to be begun.
The clamant problem of the hour was no longer how to prop up the
weakness of the Crown; but rather how to place restrictions on its
unbridled strength.

-----

Footnote 61:

Several of the most often-repeated charges of personal wrongs
inflicted by King John upon the wives and daughters of his barons have
been in recent years refuted. See Miss Norgate, _John Lackland_, p.
289.

-----

We need not wonder that the crisis came at last, but rather why it was
so long delayed. Events, however, were not ripe for rebellion before
John’s accession, and a favourable occasion did not occur previous to
1215. The doctrine of momentum accounts in politics for the long
continuance of old institutions in a condition even of unstable
equilibrium; an entirely rotten system of government may remain for ages
until at the destined moment comes the final shock. John conferred a
great boon on future generations, when by his arrogance and by his
misfortunes he combined against him all classes and interests in the
community.

The chief factor in the coalition which ultimately triumphed over John
was undoubtedly the baronial party led by those strenuous nobles of the
north, who were, beyond doubt, goaded into active opposition by their
own personal and class wrongs, not by any altruistic promptings to
sacrifice themselves for the common good. Their complaints, too, as they
appear reflected in the imperishable record of Magna Carta, are mainly
grounded on breaches of the technical rules of feudal usage, not upon
the broad basis of constitutional principle.

The feudal grievances most bitterly resented may be ranged under one or
other of two heads—increase in the weight of feudal obligations and
infringement, of feudal jurisdictions. The Crown, while it exacted from
its tenants the fullest measure of services legally exigible, interfered
persistently at the same time with those rights and privileges which had
originally balanced the obligations. The barons were compelled to give
more, while they received less.

With the first group of baronial grievances posterity can sympathize in
a whole-hearted way, since the increase of feudal obligations inflicted
undoubted hardships on the Crown tenants, while the redress of these
involved no real danger to constitutional progress. One and all of the
grievances included in this first group could be condemned (as they were
condemned by various chapters of Magna Carta) without unduly reducing
the efficiency of the monarchy which still formed under John, as it had
done under William I., the sole source of security against the dangers
of feudal anarchy. Posterity, however, cannot equally sympathize with
the efforts of the barons to redress their second class of wrongs.
However great may have been the immediate hardships inflicted on members
of the aristocracy by the suppression of their feudal courts, lovers of
constitutional progress can only rejoice that all efforts to restore
them failed. Those clauses of Magna Carta which aimed at reversing the
great currents flowing towards royal justice, and away from private
baronial justice, produced no permanent effect, and posterity has had
reason to rejoice in their failure.

Each group of feudal grievances—those connected with the increase of
feudal obligations, and those connected with the curtailment of feudal
immunities—requires special and detailed treatment.[62] To each class a
double interest attaches, since the resentment aroused by both formed so
vital an element in the spread of that spirit of determined resistance
to King John, which led to the winning of Magna Carta, and since,
further, an intimate knowledge of the exact nature of these grievances
throws a flood of light on many otherwise obscure clauses of the Great
Charter, and enables us to estimate how far the promised remedies were
ultimately carried into practice in later reigns.

-----

Footnote 62:

See _infra_ the two sections (II. and III.) immediately following.

-----

The grievances of the barons, many and varied as they were, were not,
however, the only wrongs calling for redress. It is probable that the
baronial party, if they had acted in isolation from the other estates of
the realm, would have failed in 1215 as they had already failed in 1173.
If the Crown had retained the active sympathy of Church and common
people, John might have successfully defied the baronage as his father
had done before him. He had, on the contrary, alienated from the
monarchy all estates and interests, and had broadened the basis of
opposition to the throne by ill-treating the mercantile classes and the
peasantry who, from the reign of William I. to that of Henry II., had
remained the fast, if humble, friends of the Crown. The order-loving
tradesmen of the towns had been previously willing to purchase
protection from Henry at the price of heavy, even crushing taxation; but
when John continued to exact the price, and yet failed to furnish good
government in return, his hold on the nation was completely lost. So far
from protecting the humble from oppression, he was himself the chief
central oppressor, and he let loose, besides, his foreign officers and
favourites as petty local oppressors in all the numerous offices of
sheriff, castellan, and bailiff. Far from using the perfected machinery
of Exchequer, Curia, and local administration in the interests of good
government, John valued them merely as instruments of extortion and
outrage—as ministers to his lust and greed.

The lower orders were by no means exempt from the increased taxation
which proved so galling to the feudal tenants. When John, during his
quarrel with Rome, repaid each new anathema of the Pope by fresh acts of
spoliation against the national Church, the sufferings of the clergy
were shared by the poor. In confiscating the goods of the monasteries,
he destroyed the chief provision for poor-relief known to the thirteenth
century. The alienation of the affections of the great masses of
lower-class Englishmen thus effected was never wholly undone, even by
the reconciliation of John with the Pope. Notwithstanding the
completeness and even abjectness of John’s surrender to Rome, he took no
special pains to reinstate himself in the good graces of the Church at
home. Innocent, secure at the Lateran, had issued his thunderbolts; and
John’s counter-strokes had fallen, not on him, but on the English
clergy—from the prelate to the parish priest, from the abbot to the
humblest monk. The measures taken, in 1213 and afterwards, to make good
to these victims some part of the heavy losses sustained, were quite
inadequate. The interests of the Church universal were often widely
different from those of the national Church, and such diversity was
never more clearly marked than in the last years of the reign of John.

After 1213, John’s alliance with Rome brought new dangers in its train.
The united action of two tyrants, each claiming supreme powers, lay and
spiritual respectively, threatened to exterminate the freedom of the
English nation and the English Church. “The country saw that the
submission of John to Innocent placed its liberty, temporally and
spiritually, at his mercy; and immediately demanded safeguards.”[63]

-----

Footnote 63:

Stubbs, _Select Charters_, 270.

-----

This union of tyrants naturally led to another union which checkmated
it, for the baronial opposition allied itself with the ecclesiastical
opposition. The urgency of their common need thus brought prelates and
barons into line—for the moment. The necessary leader was found in
Stephen Langton, who succeeded in preventing the somewhat divergent
interests of the two estates from leading them in opposite directions.

All things were thus ripe for rebellion, and even for _united_
rebellion; an opportunity only was required. Such an opportunity came in
a tempting form in 1214; for the King had then lost prestige and power
by his failure in the wars with France. He had lost the confidence of
his subjects by his quarrel with Rome, and he failed to regain it by his
reconciliation. He had lost the friendship of the national Church. His
unpopularity and vacillating nature had been thoroughly demonstrated.
Finally he had himself, in 1191, when plotting against his absent
brother Richard, successfully attacked and ousted the Regent Longchamp
from office, thus furnishing an example of rebellion, and of
successfully concerted action against the central government.

The result was that, when the barons—the wildest spirits of the northern
counties taking always the lead—began active operations at a juncture of
John’s fortunes most favourable to their aspirations, not only had they
no opposition to dread from churchman or merchant, from yeoman or
peasant, but they might count on the sympathy of all and the active
co-operation of many. Further, John’s policy of misrule had combined
against him two interests usually opposed to each other, the party of
progress and the party of reaction. The influence of each of these may
be clearly read in the various chapters of Magna Carta.

The progressive party consisted mainly of the heads of the more recently
created baronial houses, men trained in the administrative methods of
Henry II., who desired merely that the system of government they knew
should be properly enforced and carried out to its logical conclusions.
They demanded chiefly that the King should conduct the business of the
Exchequer and Curia according to the rules laid down by Henry II.
Routine and order under the new system were what this party desired, and
not a return to the unruly days of Stephen. Many of the innovations of
the great Angevin had now been loyally and finally accepted by all
classes of the nation; and these accordingly found a permanent
resting-place in the provisions of the Great Charter. In temporary
co-operation with this party, the usually rival party of reaction was
willing to act for the moment against the common enemy. There still
existed in John’s reign magnates of the old feudal school, who hoped to
wrest from the weakened hand of the King some measure of feudal
independence. They had indeed accepted such reforms as suited them, but
still bitterly opposed many others. In particular, they resisted the
encroachments of the royal courts of law which were gradually
superseding their private jurisdictions. For the moment, John’s crafty
policy, so well devised to gain immediate ends, and so unwise in the
light of subsequent history, combined these two streams, usually ready
to thwart each other, into a united opposition to his throne. Attacked
at the same moment by the votaries of traditional usage and by the
votaries of reform, by the barons, the trading classes, and the clergy,
no course was left him but to surrender at discretion. The movement
which culminated at Runnymede may thus best be understood as the
resultant of a number of different but converging forces, some of which
were progressive and some reactionary.

II. The Crown and Feudal Obligations.

Among the many evils calling loudly for redress in England at the
commencement of the thirteenth century, none spoke with more insistent
voice than those connected with feudal abuses. The objection of the
northern barons to pay the scutage demanded on 26th May, 1214, was the
spark that fired the mine. The most prominent feature of the Charter is
the solicitude everywhere displayed to define the exact extent of feudal
services and dues, and to prevent these from being arbitrarily
increased. A somewhat detailed knowledge of feudalism and feudal
obligations forms a necessary preliminary to any exact study of Magna
Carta.

The precise relations of the Norman Conquest to the growth of feudalism
in England are complicated, and have formed the subject of much
controversy. The view now generally accepted, and with reason, is that
the policy of William the Conqueror accelerated the process in one
direction, but retarded it in another. Feudalism, regarded as a system
of government, had its worst tendencies checked, if not eradicated, by
the great upheaval that followed the coming of Duke William; feudalism,
considered as a system of land tenure, and as a social system, was, on
the contrary, formulated and developed. It is mainly as a system of land
tenure that it falls here to be considered. Originally, the relationship
between lord and tenant, dependent upon the double ownership of land (of
which each was, in a different sense, the proprietor), implied
obligations on both sides. The lord gave protection, while the tenant
owed services of various sorts. It so happened, however, that, with the
changes wrought by time, the legal obligations of the lord ceased to be
of much importance, while those of the vassal became more and more
burdensome. The tenant’s obligations varied in kind and in extent with
the nature of the tenure. It is difficult to frame an exact list of the
various tenures formerly recognized as distinct in English law: partly
because the classical authors of different epochs, from Bracton to
Blackstone, contradict each other; and partly because of the obscurity
of the process by which these tenures were gradually differentiated. The
word “tenure” originally meant “a holding” of any sort. Sir William
Blackstone,[64] after explaining the dependent nature of all real
property in England, thus proceeds: “The thing holden is therefore
styled a _tenement_, the possessors thereof _tenants_, and the manner of
their possession a _tenure_.” Tenure thus comes to mean the conditions
on which a tenant holds real estate under his lord, and the number of
tenures varies with the number of accepted types.

-----

Footnote 64:

_Commentaries_, II. 59.

-----

The ancient classification differs materially from that in use at the
present day. The modern English lawyer (unless of an antiquarian turn of
mind) concerns himself only with three tenures: freehold (now
practically identical with socage), copyhold and leasehold. The two
last-mentioned may be rapidly dismissed, as they were of little
importance in the eyes of Littleton, or of Coke: leasehold embraces only
temporary interests, such as those of a tenant-at-will or for a limited
term of years; while copyhold is the modern form of tenure into which
the old unfree villeinage has slowly ripened. The ancient writers were,
on the contrary, chiefly concerned with holdings both permanent and free
(as opposed to leaseholds on the one hand and villeinage on the other).
Of such free tenures seven at least may be distinguished in the
thirteenth century, all of which have now come to be represented by the
same one of the three recognized modern tenures, namely, freehold or
socage. The free holdings existing in medieval England may be ranged
under the following heads, viz.: knight’s service, free socage,
fee-farm, frankalmoin, grand serjeanty, petty serjeanty, and burgage.

(1) _Knight’s Service._ Medieval feudalism had many aspects; it was
almost as essentially an engine of war as it was a system of
land-holding. The normal return for which an estate was granted
consisted of the service in the field of a specific number of knights.
Thus the normal feudal holding was known as knight’s service, or tenure
in chivalry—the conditions of which must be constantly kept in view,
since by these rules the relations between John and his recalcitrant
vassals fell to be determined. When finally abolished at the
Restoration, there fell with knight’s service, it is not too much to
say, the feudal system of land tenure in England. “Tenure by barony” is
sometimes spoken of as a separate species, but may be more correctly
viewed as a variety of tenure in chivalry.[65]

-----

Footnote 65:

See Pollock and Maitland, _History of English Law_, I. 218.

-----

(2) _Free Socage._ The early history of socage, with its division into
ordinary and privileged, is involved in obscurities which do not require
to be unravelled for the purpose at present on hand. The services which
had to be returned for both varieties were not military but
agricultural, and their exact nature, and amount varied considerably.
Although not so honourable as chivalry, free socage was less burdensome
in respect that two of the most irksome of the feudal incidents,
wardship and marriage, did not apply. When knight’s service was
abolished those who had previously held their lands by it, whether under
the Crown or under a mesne lord, were henceforward to hold in free
socage, which thus came to be the normal holding throughout England
after the Restoration.[66]

-----

Footnote 66:

See Statute 12 Charles II. c. 24.

-----

(3) _Fee-farm_ was the name applied to lands held in return for services
which were neither military nor agricultural, but consisted only of an
annual payment in money. The “farm” thus indicates the rent paid, which
apparently might vary without limit, although it was long maintained
that a fee-farm rent must amount at least to one quarter of the annual
value. This error seems to have been founded on a misconstruction of the
Statute of Gloucester.[67] Some authorities[68] reject the claims of
fee-farm to rank as a tenure separate from socage; although chapter 37
of Magna Carta seems to recognize the distinction.

-----

Footnote 67:

See Pollock and Maitland, I. 274, n.

Footnote 68:

Pollock and Maitland, I. 218.

-----

(4) _Frankalmoin_ is the tenure by which pious founders granted lands to
the uses of a religious house. It was also the tenure on which the great
majority of glebe lands throughout England were held by the village
priests, the parsons of parish churches. The grant was usually declared
to have been made _in liberam eleemosinam_ or “free alms” (that is, as a
free gift for which no _temporal_ services were to be rendered).[69] In
Scots charters the return formally stipulated was _preces et lacrymae_
(the prayers and tears of the holy men of the foundation for the soul of
the founder).

-----

Footnote 69:

Littleton, II. viii. s. 133.

-----

(5) _Grand serjeanty_ was a highly honourable tenure sharing the
distinctions and the burdensome incidents of knight’s service, but
distinct in this, that the tenant, in place of ordinary military duties,
performed some specific office in the field, such as carrying the King’s
banner or lance, or else acted as his constable or marshal or other
household officer in the palace, or performed some important service at
the coronation.[70]

-----

Footnote 70:

Littleton, II. viii. s. 153.

-----

An often-quoted example of a serjeanty is that of Sir John Dymoke and
his family, who have acted as the Sovereign’s champions at successive
coronations from Richard II. to Queen Victoria, ready to defend the
Monarch’s title to the throne, if questioned, by battle in the ancient
form.

Grand serjeanties were liable to wardship and marriage, as well as to
relief, but not, as a rule, to payment of scutage.[71] William Aguilon,
we are told by Madox,[72] "was charged at the Exchequer with several
escuages. But when it was found by Inquest of twelve Knights of Surrey
that he did not hold his lands in that county by military tenure, but by
serjeanty of finding a Cook at the King’s coronation to dress victuals
in the King’s kitchen, he was acquitted of the escuages."

-----

Footnote 71:

Littleton, II. viii. s. 158.

Footnote 72:

_History of Exchequer_, I. 650, citing _Pipe Roll_ of 18 Henry III.

-----

(6) _Petty serjeanty_ may be described in the words of Littleton as
“where a man holds his lands of our lord the king to yield to him yearly
a bow or sword, or a dagger or a knife ... or to yield such other small
things belonging to war.”[73]

-----

Footnote 73:

See Littleton, II. ix. s. 159. With this may be compared the
definition given in chapter 37 of Magna Carta, where John speaks of
land thus held by a vassal as “quam tenet de nobis per servitium
reddendi nobis cultellos, vel sagittas vel hujusmodi.”

-----

The grant of lands on such privileged tenures was frequently made in
early days on account of the special favour entertained by the King for
the original grantee, due, it might be, to the memory of some great
service rendered at a critical juncture to the King’s person or
interests. A few illustrative examples may be cited from the spirited
description of a scholar whose accuracy can be relied upon. Serjeanties,
as Miss Bateson tells us, "were neither always military nor always
agricultural, but might approach very closely the service of knights or
the service of farmers.... The serjeanty of holding the King’s head when
he made a rough passage across the Channel, of pulling a rope when his
vessel landed, of counting his chessmen on Christmas Day, of bringing
fuel to his castle, of doing his carpentry, of finding his potherbs, of
forging his irons for his ploughs, of tending his garden, of nursing the
hounds gored and injured in the hunt, of serving as veterinary to his
sick falcons, such and many other might be the ceremonial or menial
services due from a given serjeanty."[74]

-----

Footnote 74:

_Mediaeval England_, pp. 249-250. A similar tenure still exists in
Scotland under the name of "blench"—a tenure wherein the reddendo is
elusory, viz., the annual rendering of such small things as an arrow
or a penny or a peppercorn, “if asked only” (_si petatur tantum_).

-----

In the days before legal definition had done its work, it must often
have been difficult to say on which side of the line separating Petty
Serjeanties from Grand Serjeanties any particular holding fell.
Gradually, however, important and practical distinctions were
established, making it necessary that the boundary should be defined
with accuracy. In particular, the rule was established that Petty
Serjeanties, while liable for relief, were exempt altogether from the
burdensome incidents of wardship and marriage, which Grand Serjeanties
shared with lands held by ordinary Barony or Knight’s service.[75] Thus
the way was prepared for the practical identification of the Petty
Serjeanties with ordinary socage at a later date.

-----

Footnote 75:

Littleton, II. viii. s. 158.

-----

(7) _Burgage_, confined exclusively to lands within free boroughs, is
mentioned as a separate tenure by Littleton,[76] and his authority
receives support from the words of chapter 37 of Magna Carta. Our
highest modern authorities,[77] however, consider that it never acquired
sufficiently distinct characteristics to warrant its acknowledgment as
such. They treat it rather as a special variety of socage, used where
the tenants were the members of a corporation. If their opinion must be
accepted for England, it follows that, from common antecedents, entirely
different results have developed in Scotland and in England
respectively. While, north of the Tweed, several of the well-established
English tenures have failed to make good their right to separate
recognition, burgage has established itself beyond a doubt. Even the
levelling process consummated by the Conveyancing (Scotland) Act of 1874
has not entirely abolished its separate existence.

-----

Footnote 76:

_Ibid._, II. x. s. 162.

Footnote 77:

Pollock and Maitland, I. 218.

-----

The explanation of such differences between English and Scottish usage
easily suggests itself. When feudalism first took root, the various
shades of distinction in the conditions of holding were exceedingly
numerous, and merged into one another by imperceptible degrees. The work
of definition came later, was essentially artificial in its nature, and
assumed different forms in different lands.[78]

-----

Footnote 78:

Littleton and Coke seem almost to countenance two additional tenures,
viz., tenure by scutage or escuage, and tenure by Castle-guard.
Pollock and Maitland consider both as alternative names for knight’s
service. (See I. 251 and I. 257.) The latter is discussed _infra_
under c. 29 of Magna Carta.

-----

These tenures, originally six or seven (according as we exclude or
include burgage), have yielded to the unifying pressure of many
centuries. Frankalmoin and Grand Serjeanty still exist, but rather as
ghosts than realities; the others have all been swallowed up in socage,
which has thus become practically identical with “free-hold.”[79] This
triumph of socage is the result of a long process. Fee-farm, burgage,
and petty serjeanty, always possessing many features in common, were
gradually assimilated in almost all respects, while a statute (12
Charles II. c. 24) transformed tenure in chivalry also into socage. The
once humble socage has thus risen high, and now embraces most of the
land of England.[80]

-----

Footnote 79:

Jenks, _Modern Land Law_, p. 14.

Footnote 80:

It has been well described by Pollock and Maitland (I. 294) as “the
great residuary tenure.” In Scotland the “residuary tenure” is not
socage but “feu” (resembling the English fee-farm). Holdings in feu
are still familiar to Scots lawyers. They are originated by a formal
charter, followed by registration (the modern equivalent of infeftment
or feudal investiture), thus preserving an unbroken connection with
the feudal conveyancing of the Middle Ages.

The interest of historians naturally centres round tenure by knight’s
service, which is the very kernel of the feudal system. Lack of
definition in the middle ages was a fruitful source of quarrel. For a
century and more after the Norman Conquest, the exact amount and nature
of the military services due by a tenant to his lord were left vague and
undetermined. The early Norman Kings had gradually superseded the old
Anglo-Saxon Crown tenants by new ones of Norman or French extraction,
without formulating any code of regulations for the future. The whole of
England had thus been carved into a number of estates—the larger known
as honours or baronies, and the smaller as manors. Each Crown tenant
(with two exceptions, of which the Conqueror’s favourite foundation of
Battle Abbey was one) held his lands on condition of furnishing a
certain number of fully armed and mounted soldiers, always ready to obey
the King’s summons in the event of war. High authorities differ as to
when and by whom the amount of each vassal’s service was fixed. The
common view (promulgated by Prof. Freeman[81] with his usual vehemence),
attributes the allocation of specific service to Ranulf Flambard, the
unscrupulous tool of William Rufus. Mr. J. H. Round[82] has recently
urged convincing reasons in support of the older view which attributes
it to William I. Two facts, apparently, are certain: that within half a
century from the Conquest each military tenant was burdened with a
definite amount of knight’s service; and, further, that no formal record
of the amount of such service was made at the time. There were, as yet,
no written charters, and thus the possibility of disputes remained.
Probably such grants would be made in full _Curia_, and the only record
of the conditions would lie in the memory of the Court itself.

-----

Footnote 81:

_Norman Conquest_, V. 377; _Hist. of William Rufus_, 335–7.

Footnote 82:

_Feudal England_, p. 228 _et seq._

Long before the date of Magna Carta, the various obligations had been
grouped into three classes, which may be arranged according to their
relative importance, as _services_, _incidents_, and _aids_. Under each
of these three heads, disputes continually arose between the lord who
exacted and the vassal who rendered them.[83]

-----

Footnote 83:

All three forms of feudal obligation—service, incidents, and aids—have
long been obsolete in England. The statute 12 Charles II. c. 24 swept
away the feudal _incidents_ along with the feudal system; centuries
before, _scutages_ in lieu of military _service_ had become obsolete
in the transition from the system of feudal finance to that of
national finance, effected by the Crown in the thirteenth and
fourteenth centuries. Feudal _aids_ were also long obsolete, although
James I., in desperate straits for money, had attempted to revive two
of them. In France the feudal system, with all its burdensome
obligations, remained in full vigour until it was abolished in one
night by the famous decree of the National Assembly of 4th August,
1790. In Scotland, the feudal system of land tenure still exists, and
certain of its incidents (_e.g._ reliefs and compositions or fines for
alienation) are exacted at the present day.

-----

The very essence of the feudal relation between the King as overlord and
the Crown tenant as vassal consisted in the liability of the latter to
render “suit and service,” that is, to follow his lord’s banner in time
of war, and to attend his court in time of peace. It will be more
convenient, however, to reserve full consideration of these services
until the comparatively uncomplicated obligations known as incidents and
aids have been first discussed.

I. _Feudal Incidents._ In addition to “suit and service,” the lord
reaped, at the expense of his tenants, a number of casual profits, which
thus formed irregular supplements to his revenue. These profits,
accruing, not annually, but on the occurrence of exceptional events,
came to be known as “feudal incidents.” They were gradually defined with
more or less accuracy, and their number may be given as six, viz.:

Reliefs, Escheats, Wardships, Marriages, Primer seisins, and Fines for
Alienation.[84]

-----

Footnote 84:

Blackstone, _Commentaries_, II. 63, however arranges these in a
different order, and mentions as a seventh incident “aids,” which are
here reserved for separate treatment.

(_a_) _Relief_ is easily explained. The fee, or _feudum_, or hereditary
feudal estate, seems to have been the result of a gradual evolution from
the old _beneficium_ (or estate held merely for one lifetime), and that
again from the older _precarium_ (or estate held only during the will of
the overlord). Grants of land, originally subject to revocation by the
lord, had gradually attained fixity of tenure throughout the life of the
original grantee; and, later on, they became transmissible to his
descendants. The hereditary principle at last completely triumphed; the
Capitulary of Kiersey (A.D. 877) is said to be the first authoritative
recognition of the heir’s absolute right to succeed. The process was a
gradual one, and it would seem that even after the Norman Conquest, this
rule of hereditary descent was not established beyond possibility of
dispute.[85] This right of the heir to succeed always remained subject
to one condition, namely, the payment of a sum of money known as
“relief.” This was theoretically an acknowledgment that the new tenant’s
right to ownership was incomplete, until recognized by his superior—a
reminiscence of the earlier _precarium_ from which the _feudum_ had
developed.

-----

Footnote 85:

See Pollock and Maitland, I. 296.

_Relief_, then, is the sum payable to a feudal overlord by an heir for
recognition of his title to succeed the last tenant in possession. The
amount remained long undefined, and the lord frequently asked exorbitant
sums.[86]

-----

Footnote 86:

See _infra_, under c.2, for the steps in the gradual process whereby
this evil was redressed.

-----

(_b_) _Escheat_, it has been said, "signifies the return of an estate to
a lord, either on failure of issue from the tenant or upon account of
such tenant’s felony."[87] This lucid description conveys a good general
conception of escheat; but it is inaccurate in at least two respects. It
does not exhaust the occasions on which escheat occurs, and it errs in
speaking of “the return” of an estate to a lord, when, more accurately,
that estate had never left him, but always remained his property,
subject only to a burden, which was now removed. In theory, the feudal
grant of lands was always conditional; and when the condition was
broken, the grant fell, and the lord found himself, automatically as it
were, once more the absolute unburdened proprietor, as he had been
before the grant was made. Thereafter, he held the land in demesne,
unless he chose to make a new grant to another tenant. The word
“escheat” was applied indifferently to the lord’s right to such
reversions, and to the actual lands which had thus reverted. In warlike
and unsettled times the right was a valuable one, for whole families
might become rapidly extinct. When the last tenant left no heir, it was
obvious that the original grant had exhausted itself. Similarly, when a
landholder was convicted of felony, his blood became, in the phrase of a
later day, attainted, and no one could succeed to any estate through
him. If a man failed in the ordeal of water provided by the Assize of
Clarendon in 1166 for those accused of heinous crimes, his estates also
escheated to his lord. It is true that a complication arose when it was
of treason that the tenant had been convicted. In that case the king, as
the injured party, had prior rights which excluded those of the lord.
The lands of traitors were forfeited to the Crown. Even in the case of
felony the king had a limited right to the lands during a period which
was strictly defined by Magna Carta.[88]

-----

Footnote 87:

R. Thomson, _Magna Charta_, p. 236.

Footnote 88:

_Infra_, c. 32.

-----

The tenant’s felony and failure of issue were the two main grounds of
escheat, but not the only ones; the goods of fugitives from justice and
of those who had been formally outlawed also escheated, and Glanvill
adds another case,[89] namely, female wards guilty of unchastity (an
offence which spoiled the king’s market). Failure to obey a summons to
the feudal levy in time of war might also be made a ground of
forfeiture.[90]

-----

Footnote 89:

VII. 17.

Footnote 90:

Madox, I. 663.

-----

Escheat was thus a peculiarly valuable right both to the Crown and to
mesne lords. Its effect was simply this: one link in the feudal chain
was struck out, and the links on either side were fitted together. If
the defaulter was a Crown tenant, all his former sub-tenants, whether
freeholders or villeins, moved up one rung in the feudal ladder and held
henceforward directly of the king, who enjoyed the entire complexus of
legal rights previously enjoyed by the defaulter in addition to those
previously enjoyed by himself: rents, crops, timber, casual profits, and
advowsons of churches falling vacant; jurisdictions and the profits of
jurisdictions; services of villeins; reliefs, wardships, and marriages
of freeholders as these became exigible.

The Crown, however, while taking everything the defaulter might have
taken before default, must take nothing more—so at least Magna Carta[91]
provides. The rights and status of innocent sub-tenants must not be
prejudiced by the misdeeds of their defaulting mesne lord.

-----

Footnote 91:

See _infra_, c. 43.

-----

(_c_) _Wardships_ are described in the _Dialogus de Scaccario_ as
“escheats along with the heir” (_escaeta cum herede_).[92] This
expression does not occur elsewhere, but it would be impossible to find
any description of wardship which throws more light on its nature and
consequences. When the heir of a deceased tenant was unfitted to bear
arms by reason of his tender years, the lands were practically, during
his minority, without an effective owner. The lord accordingly treated
them as temporarily escheated. During the interval of nonage, the lord
entered into possession, drew the revenues, and applied them to his own
purposes, subject only to the obligation of maintaining and training the
heir in a manner suited to his station in life. Frequently, considerable
sums were thus spent. The _Pipe Roll_ of the seventeenth year of Henry
II. shows how out of a total revenue of £50 6s. 8d. from the Honour of
“Belveeir,” £18 5s. had been expended on the children of the late
tenant.[93] Wardship came to an end with the full age of the ward, that
is, in the case of a military tenant, on the completion of his
twenty-first year, “in that of a holder in socage on the completion of
the fifteenth, and in the case of a burgess when the boy can count
money, measure cloth, and so forth.”[94] Wardship of females normally
ended at the age of fourteen, "because that a woman of such age may have
a husband able to do knight’s service."[95]

-----

Footnote 92:

See Hughes’ edition, p. 133.

Footnote 93:

See _Dialogus_, p. 222 (citing _Pipe Roll_, p. 27).

Footnote 94:

Glanvill, VII. c. 9. In socage and burgage tenures no incident of
wardship was recognized; the guardianship went to the relations of the
ward, and not to his feudal lord. Somewhat complicated, but
exceedingly equitable, rules applied to socage. The maternal kindred
had the custody, if the lands came from the father’s side; the
paternal kindred, if from the mother’s side (Glanvill, VII. c. 11). In
plain language, the boy and his property were entrusted to those who
had no interest in his death.

Footnote 95:

Littleton, II. iv. s. 103.

-----

All the remunerative consequences flowing from escheat flowed also from
wardship—rents, casual profits, advowsons, services of villeins, and
reliefs. Unlike escheats, however, the right of the Crown here was only
temporary, and Magna Carta sought[96] to provide that the implied
conditions should be respected by the Crown’s bailiffs or nominees. The
lands must not be wasted or exhausted, but restored to the young owner
when he came of age in as good condition as they had been at the
commencement of the wardship.

-----

Footnote 96:

See under c. 5.

-----

One important aspect of this right ought to be specially emphasized. The
Crown’s wardship affected bishoprics as well as lay baronies, extending
over the temporalities of a See between the death of one prelate and the
instalment of his successor. Thus, it was to the king’s interest to
place obstacles in the way of all appointments to vacant sees, since the
longer the delay, the longer the Exchequer drew the revenues and casual
profits.[97]

-----

Footnote 97:

What these were may be read in the _Pipe Rolls_, _e.g._, in that of 14
Henry II., when the Bishopric of Lincoln was vacant.

This right was carefully reserved to the Crown, even in the very
comprehensive charter in which John granted freedom of election, dated
21st November, 1214.[98]

-----

Footnote 98:

See _Statutes of the Realm, Ch. of Liberties_, p. 5, and _Sel.
Charters_, p. 288: “Salva nobis et haeredibus nostris custodia
ecclesiarum et monasteriorum vacantium quae ad nos pertinent.”
Contrast the terms of Stephen’s Oxford Charter; _Sel. Charters_, pp.
120-1.

-----

(_d_) _Marriage_ as a feudal incident belonging to the lord is difficult
to define generally, since its meaning changed. Originally it seems to
have implied little more than the right of a lord to forbid an heiress,
holding a fief under him, to marry a personal enemy, or some one
otherwise unsuitable. Such veto was only reasonable, since the husband
of the heiress would become the owner of the fee and the tenant of the
lord. This negative right had almost necessarily a positive side; the
claim to concur in the choice of a husband gradually expanded into an
absolute right of the lord to dispose by sale or otherwise of the lands
and person of his female ward. The prize might go as a bribe to any
unscrupulous gentleman of fortune who placed his sword at the King’s
disposal, or it might be made the subject of auction to the highest
bidder. The lady passed as a mere adjunct to her own estates, and
ceased, strictly speaking, to have any voice in choosing a partner for
life. She might protect herself indeed against an obnoxious husband by
out-bidding her various suitors. Large sums were frequently paid for
leave to marry a specified individual or to remain single.

This right seems, at some uncertain date, to have been extended from
females to males, and instances of sums thus paid occur in the _Pipe
Rolls_. It is difficult at first sight to imagine how the Crown found a
market for such wares as male wards; but probably wealthy fathers were
ready to purchase desirable husbands for their daughters. Thus in 1206 a
certain Henry of Redeman paid forty marks for the hand and lands of the
heir of Roger of Hedon, “_ad opus filiae suae_,”[99] while Thomas Basset
secured a prize in the person of the young heir of Walerand, Earl of
Warwick, to the use of any one of his daughters.[100] This extension to
male heirs is usually explained to have been founded on a strained
construction of chapter 6 of Magna Carta, but the beginnings of the
practice can be traced much earlier than 1215.[101] The lords’ right to
sell their wards was recognized and defined by the Statute of Merton,
chapter 6. The attempts made to remedy some of the most serious abuses
of the practice may be read in Magna Carta.[102]

-----

Footnote 99:

_Rotuli de oblatis et finibus_, p. 354.

Footnote 100:

_Rot. Claus._, pp. 37, 55.

Footnote 101:

Pollock and Maitland, I. 305.

Footnote 102:

See _infra_, under chapters 6, 7, and 8.

-----

Mr. Hallam[103] considers that “the rights, or feudal incidents, of
wardship and marriage were nearly peculiar to England and Normandy,” and
that the French kings[104] never “turned this attribute of sovereignty
into a means of revenue.”

-----

Footnote 103:

_Middle Ages_, II. 429.

Footnote 104:

p. 437.

-----

(_e_) _Primer Seisin_, which is usually regarded as a separate incident,
and figures as such in Blackstone’s list, is perhaps better understood,
not as an incident at all, but rather as a special procedure—effective
and summary—whereby the Crown could enforce the four incidents already
described. It was an exclusive prerogative of the Crown, denied to mesne
lords.[105] When a Crown tenant died, the King’s officers had the right
to enter upon immediate possession, and to exclude the heir, who could
not touch his father’s lands without specific permission from the Crown.
He had first to prove his title by inquest, to give security for any
balance of relief and other debts unpaid, and to perform homage.[106] It
will be readily seen what a strong strategic position all this assured
to the King in any disputes with the heir of a dead vassal. If the
Exchequer had doubtful claims against the deceased, its officials could
satisfy themselves before admitting the heir to possession. If the heir
showed any tendency to evade payment of feudal incidents, the Crown
could checkmate his moves. If the succession was disputed, the King
might favour the claimant who pleased or paid him most; or, under colour
of the dispute, refuse to disgorge the estate altogether—holding it in
custody analogous to wardship, and meanwhile drawing the profits. If the
son and heir happened to be from home when his father died, he would
probably experience great difficulty, when he returned, in forcing the
Crown to restore the estates. Such was the experience of William
Fitz-Odo on returning from Scotland in 1201 to claim his father’s
carucate of land in Bamborough.[107] Primer seisin was thus not so much
a separate incident, as a right peculiar to the Crown to take summary
measures for the satisfaction of all incidents or other claims against a
deceased tenant or his heir. Magna Carta admitted this prerogative
whilst guarding against its abuse.[108]

-----

Footnote 105:

The Bishop of Durham enjoyed it, so it seems to be stated in a charter
extorted from him in 1303 by the men of his fief (see Lapsley, _Pal.
of Durham_, p. 133). But this forms no real exception; since the
Bishop, as an Earl Palatine, enjoyed exceptionally the _regalia_ of a
king.

Footnote 106:

See Pollock and Maitland, I. 292. It appears from statute of
Marlborough, c. 16, that _primer seisin_ extended over lands held by
serjeanty as well as by knight’s service.

Footnote 107:

_Rotuli de oblatis_, p. 114.

Footnote 108:

Sir Edward Coke (_Coke upon Littleton_, 77 A) is the original source
of much confusion as to the nature of primer seisin, which he seems to
have considered as a second and additional relief exacted by the Crown
amounting to the whole rent of the first year. The Popes, he further
held (equally erroneously), were only imitating this practice when
they exacted one year’s rent from every newly granted benefice under
the name of “first fruits.” These errors have been widely followed
(_e.g._ Thomson, _Magna Charta_, p. 416, Taswell Langmead, _Const.
Hist._, p. 50).

-----

(_f_) _Fines for alienation_ occupy a place by themselves. Unlike other
incidents already discussed, they became exigible not on the tenant’s
death, but on his wishing to part with his estate to another during his
own lifetime, either as a gift or in return for a price. How far could
he effect this without consent of his lord? This was, for many
centuries, a subject of frequent and heated disputes, often settled by
compromises, in which the tenant paid a fine to the lord for permission
to sell. Such fines are payable at the present day in Scotland (under
the name of “compositions”) from feus granted prior to 1874; and, where
no sum has been mentioned in the Feu Charter, the law of Scotland
defines the amount exigible as one year’s rent. John’s Magna Carta
contains no provisions on this subject. Disputes, long and bitter, took
place later in the thirteenth century; but their history is irrelevant
to the present inquiry.[109]

-----

Footnote 109:

See Taswell Langmead, _Const. Hist._, pp. 51-2; also Pollock and
Maitland, II. 326. _Cf._, however, c. 39 of the re-issue of Magna
Carta in 1217.

-----

II. _Feudal Aids._ The feudal tenant, in addition to fulfilling all the
essentials of the feudal relation and also all the burdensome incidents
already enumerated, was expected to come to the aid of his lord in any
special crisis or emergency. The help thus rendered was by no means
reckoned as a payment to account of the other obligations, which had
also to be paid in full. The additional sums thus given were technically
known as “aids.” At first, the occasions on which these might be
demanded were varied and undefined. Gradually, however, they were
limited to three. Glanvill,[110] indeed, mentions only two, namely, the
knighting of the overlord’s eldest son, and the marriage of his eldest
daughter; but he intends these, perhaps, merely as illustrations rather
than as forming an exhaustive list. Before the beginning of the
thirteenth century the recognized aids were clearly three—the ransoming
of the king and the two already mentioned. This understanding was
embodied in Magna Carta.[111]

-----

Footnote 110:

IX. c. 8.

Footnote 111:

See _infra_, under chapter 12.

-----

A tradition has been handed down from an early date, that these aids
were in reality voluntary offerings made by the tenant as a mark of
affection, and forming no part of his legal obligations.[112]

-----

Footnote 112:

Thus, the Abingdon version of the _Anglo-Saxon Chronicle_ (II. 113)
speaks of “auxilium quod barones michi dederunt”; while Bracton says
(Book II. c. 16, s. 8): “Auxilia fiunt de gratia et non de jure; cum
dependeant ex gratia tenentium, et non ad voluntatem dominorum.”

This plainly became, however, a legal fiction, as regarded the aids
acknowledged by customary law; the tenant dared not refuse to pay the
recognized three. As regarded any further payments, it was by no means a
fiction. When the Crown desired to exact contributions for any other
reason, it required to obtain the consent of the _commune concilium_.
This, for example, was done by Henry III. before taking an aid on the
marriage of his eldest sister. The importance of the necessity for such
consent can hardly be exaggerated in its bearing on the origin of the
rights of Parliament.

The Great Charter, while confirming the tacit compromise arrived at by
custom, whereby only the three aids might be taken without consent of
the baronage, left the _amount_ of such aids undefined, contenting
itself with the extremely vague provision that they should be
“reasonable.” Examples of such payments, both before and after the
Charter, are readily found in the Exchequer Rolls. Thus, in the
fourteenth year of Henry II., that king took one mark per knight’s fee
on marrying his daughter Maud to the Duke of Saxony. Henry III. took
20s. and Edward I. 40s. for a similar purpose. For Richard’s ransom,
20s. had been exacted from each knight’s fee (save those owned by men
actually serving in the field); and Henry III. took 40s. in his
thirty-eighth year at the knighting of his son. Probably there existed,
at an early date, some understanding as to the limits within which
“reasonableness” should be reckoned, but the amount was never stated in
black and white before the third year of Edward I. The Statute of
Westminster I.[113] fixed the “reasonable” aid payable, not to the Crown
but, to mesne lords at 20s. per knight’s fee, and 20s. for every estate
in socage of £20 annual value. This rate, it will be observed, is
one-fifth of the knight’s relief.[114] The Crown, in thus enforcing
“reason” on mesne lords, seems never to have intended that the same
limit should hamper its own dealings with Crown tenants, but continued
to exact larger sums whenever it thought fit.[115]

-----

Footnote 113:

3 Edward I. c. 36.

Footnote 114:

Fixed at 100s. by c. 2 of Magna Carta.

Footnote 115:

One entry in the _Memoranda Roll_ of 42 Henry III. (cited Madox I.
615) seems at first sight to contradict this. It seems in that year to
be admitted that the Crown could not exact more than 20s. of aid per
knight’s fee; but in 1258 the baronial opposition would be strong in
the Exchequer as elsewhere.

-----

Thus £2 per fee was taken in 1346 at the knighting of the Black Prince.
A Statute of Edward III.[116] at last extended to the Crown the same
measure of “reasonableness” as had been applied three-quarters of a
century earlier to mesne lords. The last instances of the exaction of
aids in England occur as late as the reign of James I., who, in 1609,
demanded one for the knighting of the ill-fated Prince Henry, and in
1613 another for the marriage of his daughter Elizabeth to the Prince of
Orange.

-----

Footnote 116:

25 Ed. III. stat. 5, c. 11.

-----

III. _Suit and Service._ This phrase expresses the essential obligations
inherent in the very nature of the feudal relation. It may be expanded
(as regards tenure in chivalry) into the duty of attendance at the
lord’s court, whether it met for administrative or judicial purposes, or
for reasons of mere display, and the further duty of military service
under that lord’s banner in the field. Suit, or attendance at court, had
ceased to be an urgent question before the reign of John. Indeed, the
barons, far from objecting to be present there, were gradually
approaching the modern conception, which regards it as a privilege
rather than a burden to attend the _commune concilium_—the embryo
Parliament—of the King. They urged, in especial, that only in a full
feudal court, at which each great Crown tenant had a right to appear,
could any one of their number be judged in a plea involving loss of
lands or of personal status.[117]

-----

Footnote 117:

See _infra_, under chapter 39.

-----

It was far otherwise with the duties of military service, which were
rendered every year more unwillingly, partly because of the increased
frequency of warlike expeditions, partly because of the greater cost of
campaigning in distant lands like Poitou, partly because the English
barons were completely out of sympathy with John’s foreign policy and
with him. We have seen that the want of definition and looseness of
practice in the reign of William the Conqueror left to future ages a
legacy fertile in disputes. William I. and his barons lived in the
present; and the present did not urgently call for definition.
Therefore, the exact duration of the military service to be rendered,
and the exact conditions (if any) on which exemption could be claimed,
were left originally quite vague. Such carelessness is easily explained.
Both Crown and barons hoped that by leaving matters undefined, they
would be able to alter them to their own advantage. This policy was sure
to lead to bitter quarrels in the future, but circumstances delayed
their outbreak. The magnates at first readily followed William to the
field wherever he went, since their interests were identical with his,
while warfare was their normal occupation.

The exact amount of military service was gradually fixed by custom, and
both sides acquiesced in reckoning the return due (_servitium debitum_)
for each knight’s fee or _scutum_ as the service of one fully armed
horseman during forty days. There were still, however, innumerable minor
points on which disputes might arise, and these remained even in 1215.
Indeed, although several chapters of the Great Charter attempted to
settle certain of these disputed points, others were left as bones of
contention to subsequent reigns: for example, the exact equipment of a
knight; the liability to serve for more than forty days on receiving pay
for the extra time; what extent of exemption (if any) might be claimed
by churchmen holding baronies on the ground that they could not fight in
person; how far a tenant might compromise for actual service by
tendering money; whether attendance and money might not both be refused,
if the King did not lead his forces in person; and whether service was
equally due from all estates for foreign wars as for home ones.[118]

-----

Footnote 118:

Some of these questions might be answered in particular cases by the
terms of special charters. Thus the _Hundred Rolls_ (1279) relate how
Hugh de Plesens held the Manor of Hedington, and was liable for one
knight’s fee when scutage ran; that he must go with the King and serve
him for forty days at his own expense, and thereafter at the expense
of the King. _Rot. Hund._, II. p. 710; cf. for _France, Etablissements
de St. Louis_, I. c. 65.

Such difficulties were increased, as time went on, rather than removed.
The Conqueror’s followers had possessed, like their lord, estates on
both sides of the Channel: his wars were theirs. Before John’s reign,
these simple relations had become complicated by two considerations. By
forfeitures and the division of inheritances between sons of one father,
holders of English fiefs and holders of Norman fiefs had become
distinct; the English barons had in 1213 nothing at stake in the Crown’s
selfish schemes of aggrandisement or defence. The England of John
Lackland, like the England of William of Orange, objected to be
entangled in foreign wars in the interests of foreign possessions of the
King. On the other hand, the gradual expansion of the dominions of the
wearers of the English Crown increased the number of their wars with the
number of their interests, and increased, too, the trouble and expense
of each expedition. The small wars with Wales and Scotland formed a
sufficient drain on the resources of English magnates without their
being summoned in intermediate years to fight in Maine or Gascony. The
greater number of campaigns might well be reckoned a breach of the
spirit of the original agreement.

Were the barons bound to follow John in a forlorn attempt, of which they
disapproved, to recover his lost fiefs from the French Crown? Or were
they bound to support him only in his legitimate schemes as King of
England? Or were they, by way of compromise, liable for services in the
identical possessions held by William the Conqueror at the date when
their ancestors first got their fiefs—that is, for wars in England and
Normandy alone? Tenderness for legal subtleties or strict logic could
hardly be expected from the malcontents of the northern counties,
smarting under a dumb sense of wrong. Despising all nice definition,
they declared roundly in 1213 that they owed no service whatsoever out
of England.[119] This extreme claim put them clearly in the wrong, since
John had many precedents to the contrary ready to lay before them. When
the King, on his return from his unfortunate expedition in 1214,
demanded a scutage from all who had not followed him to Poitou, the
malcontents declared that they had no obligation either to follow him
out of the kingdom, or to pay a scutage in lieu thereof.[120] Pope
Innocent was probably correct in condemning this contention as founded
neither on English law nor on feudal custom.[121] There is some ground
for believing that a compromise was mooted on the basis that the barons
should agree to serve in Normandy and Brittany, as well as in England,
on being exempted from fighting elsewhere abroad.[122]

-----

Footnote 119:

See R. Coggeshall, p. 167; the barons argued _non in hoc ei obnoxios
esse secundum munia terrarum suarum_.

Footnote 120:

W. Coventry, II. 217.

Footnote 121:

See his letter dated 1st April, 1215, in _New Rymer_, I. 128, ordering
the barons to pay the scutage of Poitou.

Footnote 122:

The evidence for this is chiefly inferential, but would be greatly
strengthened if we could establish the genuineness of the charter
discussed by Mr. J. H. Round, Mr. Prothero, and Mr. Hubert Hall in
_Eng. Hist. Rev._, VIII. 288, and IX. 117 and 326. See the document in
Appendix.

-----

A definite understanding on this vital question was never arrived at—not
even on paper, since chapter 16 of Magna Carta contented itself with the
bald provision that existing services were not to be increased (without
defining what these were). This was merely to shelve the difficulty: the
dispute went on under varying forms and led to a violent clashing of
wills in the unseemly wrangle between Edward I. and his Constable and
Marshal, dramatized in a classic passage by Walter of Hemingburgh.[123]
Strangely enough, the _Confirmatio Cartarum_ of 1297, which was, in
part, the outcome of this later quarrel, omits (like Magna Carta
itself)[124] all reference to foreign service. The total omission from
both charters of all mention of the chief cause of dispute is
noteworthy. It must be remembered, however, that the question of
liability to serve abroad had practically resolved itself into that of
liability to scutage, and that chapters 12 and 14 of the Charter of 1215
provided an adequate check on the levy of all scutages; but this is a
subject of crucial importance, which requires separate and detailed
treatment.

-----

Footnote 123:

_Chronicon_, II. 121.

Footnote 124:

See, however, _infra_ under c. 16.

-----

IV. _Scutage._ The Crown did not always insist on actual personal
service, but was frequently willing to accept a commutation in the form
of a money payment. This subject of scutage is one of the most vexed of
questions; all received opinions of yesterday having to-day been thrown
into the melting pot. Serious attempts constructively to restate the
whole subject have hardly been made; and no conclusions have yet
received general acceptance.

Three modifications, however, of the theories of Stubbs and Freeman,
once universally accepted, seem likely to be soon established: (1) that
“scutage” is an ambiguous term with a vague general meaning as well as a
narrow technical meaning; (2) that the importance of the changes
introduced by Henry II. in 1156 and 1159 has been much exaggerated; and
(3) that at a later time, probably during John’s reign, scutage changed
its character. It ceased to be normally a commutation of service, since
it was not infrequently exacted by the Crown in _addition_ to military
service actually performed. Each of these propositions requires
explanation.

“Scutagium,” or “shield-money,” often means, it is true, a specific sum
of so much per knight’s fee (normally twenty shillings) accepted by the
King in lieu of the personal service in his army due by his tenants _in
capite_. Thus it is, as Dr. Stubbs explains, “an honourable commutation
for personal service”;[125] but it is also loosely used[126] to denote
any exaction whatsoever assessed on a feudal basis (that is, taken
exclusively from holders of fiefs) irrespective of the occasion of its
levy. Thus, money taken in name of one of the three feudal _aids_ is
sometimes described as a scutage; and other instances might be cited.

-----

Footnote 125:

Stubbs, _Const. Hist._, I. 632.

Footnote 126:

As was long ago pointed out by Madox, I. 619.

-----

Again, learned opinion tends towards the belief that Henry II. made no
radical or startling alteration. Professor Freeman, Dr. Stubbs, and
their adherents familiarized a bygone generation of historians with the
view that one of Henry’s most important reforms was to allow his Crown
tenants at their discretion to substitute payments in money for the old
obligation of personal service in the field—this option being granted to
ecclesiastics in 1156, and to lay barons in 1159. Such a theory had _a
priori_ much to recommend it. A measure of this nature, while giving
volume and elasticity to the resources of the Crown, was calculated
subtly to undermine the basis of the feudal tie; but Henry, farseeing
statesman as he was, could not discard the ideals of his own generation.
No evidence that he made any sweeping change is forthcoming. His
grandfather, Henry I., is shown by the evidence of extant charters to
have accepted money in place of the services of knights _when it suited
him_ (notably from church fiefs in 1109),[127] and there is no evidence
(direct or indirect) to show that the grandson accepted such commutation
_when it did not suit him_. The conclusions formulated, with his usual
energy, by Mr. J. Horace Round, lie implicitly in the examples from the
_Pipe Rolls_ stored in the great work of Madox. From these it would
appear that the procedure of the Exchequer of the great Angevin and his
two sons might be explained in some such propositions as these:

-----

Footnote 127:

See Round, _Feudal England_, p. 268.

-----

(_a_) The option to convert service into scutage lay with the Crown, and
not with the tenants, either individually or as a body. When the King
summoned his feudal army no baron could (as Professor Freeman would have
us believe) simply stay away under obligation of paying a small fixed
sum to the Exchequer. On the contrary, Henry and his sons jealously
preserved the right to insist on _personal_ service whenever it suited
them; even efficient substitutes were not always accepted, much less
money payments.

(_b_) If the individual wished to stay at home he required to make a
special bargain to pay such fine as the King agreed to accept—and
sometimes he had to send a substitute in addition. The _Pipe Rolls_ show
many such payments by stay-at-homes _ne transfretent_ or _pro remanendo
ab exercitu_. Thus, in the twelfth year of John’s reign a Crown tenant
paid a fine “that he might send two knights to serve for him in the army
of Ireland.”[128]

-----

Footnote 128:

Madox, I. 658.

-----

Sometimes, indeed, Henry II. might announce that payments at a certain
rate would be accepted generally in lieu of service, but this was when
it suited him, not when it suited his military tenants. In this
connection twenty shillings per fee became recognized as a usual, though
by no means a necessary, rate.

(_c_) In the ordinary case, if the tenant in chivalry neither went in
person nor obtained leave from the Crown to stay away, he was in evil
plight. Defaulters were “_in mercy_”; they sometimes forfeited their
entire estates to the Crown,[129] and might be glad to accept such terms
of pardon as a gracious King condescended to hold out to them.
Sometimes, it is true, quite small amercements were inflicted; the Abbot
of Pershore in 1196 escaped with an amercement of 40s.[130] Such
leniency, however, was exceptional, and the result of special royal
clemency.

-----

Footnote 129:

See _Pipe Roll_ of 12 John, cited in Madox, I. 663.

-----

Footnote 130:

See _Pipe Roll_ of Richard I., cited _ibid._

-----

The right to determine the amount of amercements to be taken lay within
the province of the Barons of the Exchequer, who also judged whether or
not lands had escheated by default.

Henry II. seems to have levied money in name of scutage only when
actually at war—on seven occasions in all during a reign of thirty-five
years; and only once at a rate exceeding 20s., if we may trust Mr.
Round,[131] and that when he was putting forth a special effort against
Toulouse. Richard I., with all his rapaciousness, levied, apparently,
only four scutages during ten years, and the rate of 20s. was never
exceeded even in the King’s hour of urgent need,—in 1194, when the
arrears of his ransom had to be paid and preparations simultaneously
made for war in Normandy.

-----

Footnote 131:

_Feudal England_, 277 _seq._

-----

At John’s accession, then, three rules might be regarded as having all
the prescriptive force of a long unbroken tradition, namely, (1) that
scutage was a reserve for extraordinary emergencies, not a normal yearly
burden; (2) that the recognized maximum was 20s. per knight’s fee, while
a lower rate (13s.4d. and even 10s.) had occasionally been accepted; and
(3) that the payment of scutage to the King at a rate previously fixed
by him acted as a complete discharge of all obligations due for that
occasion.

If it can be proved that John, almost from his accession, deliberately
altered all three of these well-established rules, and that too in the
teeth of the keen opposition of a high-spirited baronage whose members
felt that their pride and prestige as well as their money-bags were
attacked, a distinct step is taken towards understanding the crisis of
1215. Such knowledge would explain why a storm, long brewing, burst in
John’s reign, neither sooner nor later; and even why some of the
disreputable stories told by the chroniclers and accepted by Blackstone
and others, found inventors and willing believers.

It is here maintained that John did make changes in all three
directions; and, further, that the incidence of this increase in
feudal burdens was rendered even more unendurable by two
considerations:—because at his accession there remained unpaid
(particularly from the fiefs of the northern knights) large arrears of
the scutages imposed in his brother’s reign,[132] and because in June,
1212, John drew the feudal chain tight by a drastic and galling
measure. In that month he instituted a strict inquest into the amount
of feudal service exigible from every estate in England, to prevent
any dues escaping his wide net, and to revive all services and
payments that had lapsed or were in danger of lapsing.

-----

Footnote 132:

Miss Norgate, _John Lackland_, p. 122.

-----

That he made the first two changes becomes a certainty from a glance at
the table of scutages actually extorted during his reign, as these are
here copied from a list compiled by a writer of authority who has no
special theory to support,[133] viz.:

First scutage of reign— 1198-9— 2 marks per knight’s fee.
Second " " 1200-1 2 " "
Third " " 1201-2 2 " "
Fourth " " 1202-3 2 " "
Fifth " " 1203-4 2 " "
Sixth " " 1204-5 2 " "
Seventh " " 1205-6 20s. "
Eighth " " 1209-10 2 marks "
Ninth " " 1210-11 2 " "
Tenth " " 1210-11 20s. "
Eleventh " " 1213-14 3 marks "

-----

Footnote 133:

Miss Norgate, _John Lackland_, p. 123 note, correcting Swereford’s
lists in the _Red Book of Exchequer_.

-----

It will be seen that, in the very first year of his reign, John took a
scutage, and that, too, at a rate above the established normal, at two
marks per _scutum_ (only once equalled, thirty years before, and then
under special circumstances). Even one such exaction must have made the
already sulky Crown tenants look askance.

Next year John wisely allowed them breathing space; then without a break
in each of the third, fourth, fifth, sixth and seventh years of his
reign, scutages were extorted in quick succession at the high rate of
two marks. If John meant to establish this as a new normal rate, he did
so not without some show of reason, since that would exactly pay the
wages of a knight at 8d. _per diem_ (the rate then current), for a
period of forty days (the exact term recognized by public opinion as the
maximum of compulsory feudal service).

_Fines_, in addition to this scutage of two marks, were apparently
exacted from those who had not made the necessary compromise for
personal service in due time.[134]

-----

Footnote 134:

See (for year 1201) Ramsay, _Angevin Empire_, p. 390, and authorities
there cited.

-----

These scutages were collected with increasing difficulty, and arrears
gradually accumulated; but the spirit of opposition increased even more
rapidly. In 1206, apparently, the breaking point was almost
reached.[135] Accordingly, in that year, some slight relaxation was
allowed—the annual scutage was reduced from two marks to 20s. John’s
needs, however, were as great as ever, and would prevent all further
concessions in future years, unless something untoward happened.
Something untoward _did_ happen in the summer of 1207, when John
quarrelled with the Pope. This event came in time, not as John thought
to _prevent_, but, as the sequel proved, merely to _postpone_, the
crisis of the quarrel with the baronage. John had, for the time being,
the whole of the confiscated property of the clergy in his clutches. The
day of reckoning for this luxury was still far distant, and the King
could meanwhile enjoy a full exchequer without goading his Crown tenants
to rebellion. For three years no scutage was imposed. In 1209, however,
financial needs again closed in on John, and a new scutage of two marks
was levied; followed in the next year actually by two scutages, the
first of two marks against Wales, and the second of 20s. against
Scotland. John never knew when to stop. These three levies, amounting to
a total of five-and-a-half marks per fee within two years, strained the
tension almost to breaking point.

-----

Footnote 135:

Cf. Miss Norgate, _John Lackland_, p. 125.

-----

During the two financial years immediately following (Michaelmas, 1211,
to Michaelmas, 1213) no scutage was imposed. John, however, although he
thus a second time relaxed the tension, had no intention to do so for
long. On the contrary, he determined to ascertain if scutages could not
be made to yield more in the future. By writs, dated 1st June, 1212, he
instituted a great Inquest throughout the land. Commissioners were
appointed to take sworn verdicts of local juries as to the amount of
liability due by each Crown vassal. Mr. Round[136] considers that
previous writers have unaccountably ignored the importance of this
measure, “an Inquest worthy to be named in future by historians in
conjunction with those of 1086 and 1166,”[137] and describes it as an
effort “to revive rights of the Crown alleged to have lapsed.” It is
possible that John, by this Inquest of 1212, sought also
(unsuccessfully, as the sequel proved) to do what Henry had done
successfully in 1166—that is, to increase the amount of knights’ fees on
which each Crown tenant’s scutage was assessed by adding to the previous
total the number of knights recently enfeoffed.

-----

Footnote 136:

_Commune of London_, pp. 273-4.

Footnote 137:

Two historians, however, who have recently given valuable and
independent accounts of the reign of John, say little of its value.
Sir James Ramsay (_Angevin Empire_, p. 432) treats it briefly, and
Miss Norgate (_John Lackland_, p. 163) barely notices it.

-----

John clearly intended by this Inquest, the returns to which were due on
the 25th June, 1212, to prepare the necessary machinery for wringing the
uttermost penny out of the next scutage when occasion for one again
arose. That occasion came in 1214.

Up to this date, even John had not dared to exact a rate of more than
two marks per knight’s fee; but the weight of his constant scutages had
been increased by the fact that he sometimes exacted personal services
in addition, and that he inflicted crushing fines upon those who neither
went nor arranged beforehand terms of composition with the King.[138]

-----

Footnote 138:

Miss Norgate (_John Lackland_, p. 123) describes the exactions
supplementing the scutages: "These scutages were independent of the
fines paid by the barons who did not accompany the King on his first
return to Normandy in 1199, of the money taken from the host as a
substitute for its service in 1201, of the equipment and payment of
the ‘decimated’ knights in 1205, and the fines claimed from all the
tenants-in-chivalry after the dismissal of the host in the same year,
as well as of actual services which many of those who had paid the
scutage rendered in the campaigns of 1202-4 and 1206."

Thus gradually and insidiously throughout the entire reign of John, the
stream of feudal obligations by many different channels steadily rose
until the barons feared that nothing of their property would be saved
from the torrent. The normal rate of scutage had been raised, the
frequency of its imposition had been increased, the conditions of
foreign service had become more burdensome, and the objects of foreign
expeditions more unpopular; while attempts were sometimes made to exact
both service and scutage in the same year. The limit of the barons’
endurance was reached when, on 26th May, 1214, John, already discredited
by his unsuccessful expeditions in Poitou, soon to be followed by the
utter overthrow of his allies at Bouvines, issued writs for a scutage at
the unheard-of rate of three marks, grounded doubtless on the inquest of
1212 and unusually far-reaching in the subjects which it embraced.[139]

-----

Footnote 139:

See Miss Norgate, _John Lackland_, 210, and cf. _supra_, p. 37.

-----

Then the final crash came; this writ was like a call to arms—a call not
to follow the King’s banner, but to fight against him.

III. Royal Justice and Feudal Justice.

A well-known aphorism of legal text-books, couched in language unusually
figurative, declares the King to be “the sole fountain of justice.”
Correct as it is to apply this metaphor to the present state of the
constitution, it would be an anachronism and a blunder to transport it
into the thirteenth century. In John’s reign there still were—as there
had been for centuries—not one, but many competing jurisdictions. It was
by no means a foregone conclusion that the King’s Courts were the proper
tribunals to which a wronged individual must repair to seek redress. On
the contrary, the great bulk of the rural population, the villeins, had
no _locus standi_ except in the court of the manor to which they
belonged; while the doors of the royal Courts had been closed against
the ordinary freeman previous to the reign of Henry II. Royal justice
was still the exception, not the rule. Each man must seek redress, in
the ordinary case, in his own locality. To dispense justice to the
nation at large was no part of the normal business of a medieval King.

I. _Rival Systems of Law Courts._ In the thirteenth century, there
existed not one source of justice, but many. Rival courts, eagerly
competing to extend their own sphere of usefulness and to increase their
own fees, existed in a bewildering multitude. Putting aside for the
moment the Courts Christian, the Borough Courts, the Forest Courts, and
all exceptional or peculiar tribunals, there existed three great rival
systems of jurisdiction which may be named in the order in which they
became in turn prominent in England.

(1) _Local or District Courts._ Justice was originally a local
product, and administered in rude tribunals, which partook more or less
of a popular character. Each shire had its council or assembly for
hearing pleas, known as a “shire-moot” in Anglo-Saxon days, and usually
as a “_comitatus_” after the Norman Conquest; while each of the smaller
districts subdividing the shire, and forming units of administration for
purposes of taxation, defence, justice, and police, had a moot or
council of its own, serving as a court of law, to which the inhabitants
of the various villages brought their pleas in the first instance. These
smaller districts were known as hundreds in the south, and as wapentakes
(a name of Danish derivation) in the north.

The theory generally received is that all freemen were originally
suitors in the courts of the shire and the hundred, and that the whole
body of those present, the ordinary peasant (“ceorl”) equally with the
man of noble blood (“eorl”), took an active part in the proceedings,
pronouncing (or, at least, concurring in) the judgments or dooms there
declared; but that, as time progressed, the majority of the Anglo-Saxon
ceorls sank to the half-servile position of villeins—men tied for life
to the soil of the manor, and passing, like property, from father to
son. These villeins, although still subjected to the burden of
attendance, and to some of the other duties of their former free estate,
were deprived of all those rights which had once formed the counterpart
of the obligations. Another school of historians, it is true, denies
that the mass of the population, even in very early times, ever enjoyed
the right to any active share in the dispensation of justice. It is
unnecessary here to attempt a solution of these and many other intricate
problems surrounding the composition and functions of the courts of
shire and hundred; or to discuss the still more vexed question how far
the small assembly of the villagers of each township is worthy to be
reckoned a formal court of law. It is sufficient to emphasize the
importance of the existence from early times of a complete network of
courts, each dispensing justice for the people of its own district.

(2) _Feudal Courts._ Centuries before the Norman Conquest, this system
of popular or district justice found itself confronted with a rival
scheme of jurisdictions—the innumerable private courts belonging to the
feudal lords of the various estates into which the whole of England had
been divided. This new system of private tribunals (known indifferently
as feudal courts, manorial courts, seignorial courts, or heritable
jurisdictions) slowly but surely, such is the orthodox view generally,
although not universally accepted, gained on the older system of popular
courts of shire, hundred, and wapentake.[140]

-----

Footnote 140:

This account of the relations of the two sets of courts would receive
the support of recent writers, such as Maitland and Round, as well as
of the older generation, such as Stubbs and Freeman. Mr. Frederic
Seebohm may be mentioned as perhaps the most weighty upholder of the
opposite view, which regards the manorial courts as of equally early
or earlier origin than those of hundred and shire.

-----

Practically every holder of land in England came to be also the holder
of a court for the inhabitants of that land. The double meaning of the
word “_dominus_” illustrates the double position of the man who was thus
both owner and lord.[141] In the struggle between two schemes of
justice, the tribunals of the feudal magnates easily triumphed, but
never absolutely abolished their rivals. The earlier popular courts
still lived on; but the system of district justice which had once
embraced the whole of England was completely honeycombed by the growth
of the feudal courts. As each once-free village passed under the
domination of a lord, and gradually became a manor or embryo-manor, the
village-moot (with such rudimentary authority as it may originally have
possessed) gave way before a new manorial court endowed with much wider
powers and with more effective sanction for enforcing them. Further, as
complete hundreds fell under the control of specially powerful magnates,
the entire courts of these hundreds were replaced by or transformed into
feudal courts; franchises thus took the place of many of the old popular
moots. Still, the older system retained possession of part of the
disputed ground, thanks to the protection given it in its hour of need
by the Crown. A great majority of the hundreds never bowed to the
exclusive domination of any one lord, and the courts of the shires were
jealously guarded by the Norman Kings against the encroachment of even
the most powerful of barons. It is true that they only escaped
subjection to a local landowner in order to fall under the more powerful
domination of the Crown. Yet the mere fact that they continued in
existence acted at least as a check on the growth of the rival system of
seignorial tribunals.

-----

Footnote 141:

Cf. “landlord.”

-----

Although it was the policy of the Norman Kings to prevent their barons
from gaining excessive powers of jurisdiction, it was by no means their
policy to oppose these jurisdictions altogether. On the contrary, the
Conqueror and his sons were glad that order should be enforced and
justice administered, even in a rough-and-ready manner, in those
districts of England whither the Crown’s arm was not long enough to
reach, and where the popular courts were likely to prove inefficient.
Thus, the old system and the new existed side by side; it was to the
interest of the central government to play off the one against the
other.

In later days (but not till long after Magna Carta) each manorial
tribunal split into three distinct courts, according to the class of
pleas it was called upon to try. Later writers distinguish absolutely
from each other, the Court Baron, settling civil disputes between the
freeholders of the manor; the Court Customary, deciding non-criminal
cases among the villeins; and the Court Leet, a petty criminal court
enforcing order and punishing small offences. The powers of these courts
might vary, and in many districts the jurisdiction over misdemeanours
belonged not to the steward of the lord of the manor, but to the sheriff
in his half-yearly Circuits or “Tourns” through the county. In the
imperfectly feudalized districts the Tourn of the sheriff, as the
representative of the Crown, performed the same functions as the Court
Leet performed within the territories of a franchise.

(3) _Royal Courts._ Originally, the King’s Court had been merely one
feudal court among other feudal courts—differing in degree rather than
in kind from those of the great earls or barons. The King, as a feudal
lord, dispensed justice among his feudal tenants (whether barons and
freemen or only servile dependents), just as any baron or freeman
dispensed justice among _his_ tenants, bond or free. No one dreamed, in
the time of the Norman Kings, that the _Curia Regis_ would or could
undertake the enormous labour of dispensing justice for the whole nation
(or even of supervising the courts which did dispense it). Each
individual must, on the contrary, look for the redress of wrongs either
to the court of the people of his own district, or to the court of his
lord. Royal justice for all (in the modern sense) was simply impossible.
The monarchy had no machinery at command for effecting this. The task
was a gigantic one, which no Anglo-Saxon King, which not even William
I., could possibly have undertaken. No attempt in this direction was
made by the Crown until the reign of Henry II., who was placed in a
position of unprecedented power, partly by circumstances, but chiefly by
his great abilities. Even he, born reformer as he was, would never have
increased so greatly the labours of government, if he had not clearly
seen how enormously the change would enhance both the security of his
throne and the revenue of his exchequer.

In normal circumstances, then, prior to the Angevin period, the King’s
Court was merely a tribunal for transacting the king’s own business, or
for holding pleas between the Crown’s own immediate tenants. Even from
an early date, however, the business of the monarch, from the mere fact
that he was lord paramount, was necessarily wider than the business of
any mesne lord. In a dim way, too, it must have been apparent from the
first, that offences against the established order were offences also
against the king, and that, therefore, to redress these was the king’s
business competent in the King’s Courts. Further, the Sovereign’s
prerogative quickly waxed strong, and enabled him to give effect to his
wishes in this as in other matters. The Crown asserted a right (while
admitting no corresponding duty) to investigate any pleas of special
importance, whether civil or criminal. Still, up to the Norman Conquest,
and thereafter under William and his sons, royal justice had made no
deliberate attempt to become national justice, or to supersede feudal
justice. Each kept to its recognized province. The struggle between the
two began only with the reforms of Henry II.[142]

-----

Footnote 142:

The various stages in the gradual process, extending from the reign of
Henry I. to that of Edward I., by which royal justice insidiously
encroached on feudal justice, may be studied in Professor Maitland’s
admirably lucid account prefaced to _Sel. Pleas in Manorial Courts_,
pp. liii. seq. See also Pollock and Maitland, I. 181-2.

-----

Thus the three great systems of jurisdiction, popular justice, feudal
justice, and royal justice (each depending on a different principle)
succeeded each other, on the whole, in the order in which they are here
named. Yet the sequence is in some ways logical rather than
chronological. No absolute line can be drawn, showing where the
supremacy of one principle ended and that of the next began. For
centuries, all three co-existed, and struggled for the mastery. The
germs of manorial jurisdiction may have been present from an early date.
Shire-courts and hundred courts alike were continually in danger of
falling under the domination of powerful local magnates. Yet the
shire-courts were successful in maintaining till the last (thanks to
royal favour) their independence of the manorial jurisdictions and their
lords; while only a proportion of the hundred courts fell into bondage.

The royal courts, again, exercised an important jurisdiction from the
very foundation of the monarchy; and the king in person, or by deputy,
from an early date, withdrew special causes from the County Courts, and
also interfered with manorial franchises. Finally, the Courts Baron were
never abolished, but only silently undermined by the policy of Henry II.
and his successors, until they gradually sank into decrepitude without
really ceasing to exist.

With these caveats, however, the three systems may be regarded, in some
measure, as following one another in the order named:—popular justice,
feudal justice, royal justice.

II. _Legal Procedure._ The procedure adopted in litigation in
Anglo-Saxon and Norman times was similar in essentials in all three
classes of tribunals, and differed materially from the practice of
courts of law at the present day. Some knowledge of the more glaring
contrasts between ancient and modern procedure may here be profitably
discussed, not only on account of the interest inherent in the subject,
but also because it will conduce to an understanding of several
otherwise obscure provisions of Magna Carta.

Avoiding technical language, and eliminating special procedure peculiar
to any one court or country, the principal stages in a normal litigation
in a modern court of law may be given briefly as follows:

(1) On the complaint of the party aggrieved—the plaintiff—a summons, or
writ, is issued by an officer of the court. Proceedings are opened by
the command addressed to the defendant to appear in court and answer
what is alleged against him.

(2) Each party lodges written statements of his facts and pleas—that is,
of the circumstances of the case as they appear to him (or such of them
as he hopes to bring evidence to prove)—on which he founds his claim or
his defence, and of the legal principles he intends to deduce from these
circumstances. When these statements of facts and pleas have been
revised and adjusted, the complete data are now before the court; each
party has finally stated what he considers essential to his case.

(3) Proof is, in due course, led; that is, each party is afforded an
opportunity of proving such facts as he has alleged (and as require
proof through the denial of his opponent). This he may do by documents,
witnesses, or otherwise. Each party has the further privilege of shaking
his opponent’s evidence by cross-examination.

(4) The next important stage is the debate, the main object of which is
to establish by legal arguments the pleas founded on; to deduce the
legal consequences inherent in the facts which have been proved.

(5) Finally, the judge gives his decision. He has to determine, after
weighing the evidence led by either party, what facts have really been
established, and how far the various pleas of plaintiff and defendant
respectively are implied in these facts. A considerable amount of
thought and reasoning of such a kind as can be successfully performed
only by a highly trained legal mind is thus necessary before the final
decree or sentence can be pronounced by a judge in a modern court of
law.

A trial in Anglo-Saxon and early Norman times stands in notable contrast
to all this in almost every essential of its stages and procedure, and
even more radically in the spirit which pervades the whole. Thus, the
proceedings, from first to last, were purely oral, there being no
original writ or summons, no written pleadings, and no record kept of
the decision except in the memories of those present. The functions of
“the judges” were entirely different, and demanded no previous
professional or legal training, since they were not required either to
weigh a mass of evidence or to determine the bearing of subtle legal
arguments, but merely to see fairplay, and to decide, according to
simple rules, well established by centuries of custom, by what test the
allegations of plaintiff and defendant were respectively to stand or
fall. Finally, the arrangement of the stages of the litigation was
entirely different. It is with something of a shock that the modern
lawyer learns that in civil and criminal causes alike “judgment”
invariably preceded “trial.” Reflection will soon convince him that each
of these words had in the Middle Ages a meaning different from what it
bears to-day. These ancient meanings can be best understood by following
the stages of the old procedure.

(1) The initial difficulty was to obtain the presence of the defendant
in court, since there existed a strange reluctance either to compel his
attendance or to allow judgment to pass against him by default. No
initial writ was issued commanding him to appear; almost endless delays
were allowed.

(2) When both parties had been, after many adjournments, actually
brought face to face before the court, the statements alike of the claim
and of the defence were made verbally and in set _formulae_, the
slightest slip or stumble in the words of which involved complete
failure. This is merely one illustration of the tremendously formal and
technical nature of early legal procedure common to all half-developed
systems of jurisprudence.

(3) Before the plaintiff could put the defendant finally on his defence,
he required to show some preliminary presumption of the probability or
_bona fides_ of his case. This he usually did by producing two friends
ready to substantiate his claim, known sometimes as his “suit” (Latin
_secta_), or his “fore-witnesses.” Their evidence was not weighed
against the “proof” afterwards led by the defendant; its object was
merely to warrant the Court in demanding “proof” from the latter at
all.[143]

-----

Footnote 143:

Sometimes no fore-witnesses were required; for example, to choose an
obvious case, where the claim was for the restoration of stolen
cattle, which had been traced by “hue and cry” to defendant’s house or
byre. The presumption of guilt was here so strong as to render
corroborative evidence unnecessary. The plaintiff’s unsupported oath
was thus sufficient to put the defendant on his “trial.” On the other
hand, in the absence alike of presumption and of witnesses swearing in
support of plaintiff’s oath, the defendant escaped without any “trial”
at all.

-----

(4) Then came the judgment—the chief or “medial” judgment, so called to
distinguish it from the less important final judgment or decree which
came at a later stage. This medial judgment or “doom,” to use the
Anglo-Saxon word, partook in no respect of the nature of the judgment of
a modern tribunal. It came _before_ the proof or trial, not after it. It
consisted indeed in decreeing whether or no, on the strength of the
previous procedure, the defendant should be put to his proof at all; and
if so, _what_ “proof” should be demanded.

Now, the exact test to be appointed by the court varied somewhat,
according to circumstances, but long-established custom had laid down
with some exactitude a rule applicable to every case likely to occur;
and, further, the possible modes of proof were limited to some four or
five at the outside. In Anglo-Saxon times, these were mainly
compurgation, ordeal, witnesses (whose functions were, however, widely
different from those of witnesses in modern law), and charters. The
Norman Conquest introduced for the new-comers, a form of proof
previously unknown in England—"trial by combat"—which tended, for the
upper classes at least, to supersede all earlier methods of procedure.
The “proof,” of whatever kind it might be, thus appointed by the
“judges” for the defendant’s performance was technically known as a
“law” (Latin _lex_) in the sense of a “test” or “trial” or “task,”
according to his success or failure in which his case should stand or
fall.[144]

-----

Footnote 144:

See _infra_ under chapters 38 and 39, where the meaning of _lex_ is
discussed.

It will be apparent that to pronounce a “judgment” in this sense was a
simple affair, a mere formality in the ordinary case, where room for
dubiety could hardly be admitted; and thus it was possible for
“judgment” to be delivered by all the members of a feudal court, or even
by all the suitors present at a meeting of the hundred or shire-moot.

(5) The crucial stage, this “trial” which thus came after “judgment,”
consisted in one party (usually the defendant) essaying, on the day
appointed, to satisfy the court as to the truth of his allegations by
performing the task or “law” which had been set or “doomed” to him. When
this consisted in the production of a charter, or of “transaction
witnesses” (that is, the testimony of those officials appointed in each
market-town to certify the conclusion of such bargains as the sale of
cattle), it commends itself readily to the modern understanding and
approval. More frequently, however, it took the form of “an oath with
oath-helpers,” the plaintiff bringing with him eleven or twelve of his
trusty friends or dependents to swear after him the words of a long and
cumbrous oath, under the risk of being punished as perjurers for any
slip in the formula. This was known also as compurgation. Sometimes the
decision was referred to the intervention of Providence by appealing to
the ordeal of the red-hot iron or the more-dreaded ordeal of water.
After the Norman Conquest, the trial in all litigations between men of
high rank, took the form of _duellum_ or legally regulated combat
between the parties. The defendant gained his case if he caused the
plaintiff to own himself worsted by uttering the word “craven.” He
gained his case equally if he only held out till nightfall (when the
combat terminated) against the plaintiff’s attempts to force him to
utter that fateful word.[145]

-----

Footnote 145:

Details may be studied in Dr. George Neilson’s _Trial by Combat_.

-----

The battle was fought out before the “judges,” who, in the case of an
earl or baron, were the other earls and barons assembled as his peers in
the King’s court; and, in the case of the tenant of a mesne lord, were
the other freeholders of the same manor.

The ancient “trial” (the importance of which is increased by the fact
that it continued long after 1215, and may be traced in several clauses
of Magna Carta)[146] was thus something entirely different from the
modern “trial.” It may be said without exaggeration that there was no
“trial” at all in the current meaning of the word—no balancing of the
testimony of one set of witnesses against another, no open proof and
cross-examination, no debate on the legal principles involved. The
ancient “trial” was merely a formal test, which was, except in the case
of battle, entirely one-sided. The phrase “burden of proof” was
inapplicable. The litigant to whom “a law” was appointed had the
“privilege of proof” rather than the “burden of proof,” and he usually
won his case—especially in compurgation, and even in ordeal if he had
arranged matters properly with the priest who presided.[147]

-----

Footnote 146:

See _infra_, chapters 38 and 39.

Footnote 147:

Ordeal and compurgation and other forms of _lex_ are further discussed
_infra_, under chapters 38 and 39.

-----

(6) The whole was concluded by the final “judgment,” or decree, which
practically took the form of a sentence passed on the vanquished. The
judges could scarcely be said to decide the case, since this had already
been practically decided by the success or failure of the party on whom
the proof had been laid. Those who gave sentence were “judges” merely in
the sense of umpires who saw fairplay to both players, according to the
acknowledged rules of the desperate game.[148]

-----

Footnote 148:

Cf. Thayer, _Evidence_, p. 8. “The conception of the trial was that of
a proceeding between the parties, carried on publicly, under forms
which the community oversaw.”

-----

In one sense, the final (as opposed to the medial) “judgment” was
determined by the parties themselves, or by one of them; in another and
higher sense the facts at issue were left to Providence; a miracle, if
necessary, would attest the just claim of the innocent man. Those who
delivered the final doom, had a purely formal task to perform, and had
little in common with the “judges” of a modern court.[149]

-----

Footnote 149:

These stages of procedure are all fully illustrated by the actual
words of recorded cases of the thirteenth century. Two of these, both
from the reign of John, one decided by battle, the other by ordeal,
may here be cited. (1) "Hereward, the son of William, appeals Walter,
the son of Hugh, of assaulting him, in the King’s peace, and wounding
him in the arm with an iron fork, and giving him another wound on the
head; and this he offers to prove on his body as the Court shall
appoint. And Walter defends all of it by his body. And it is testified
by the coroners and by the whole county that the same Hereward showed
his wounds at the proper time, and has made sufficient suit. Therefore
it is decreed that there should be “battle.”... Let them come armed, a
fortnight from St. Swithin’s day, at Leicester." _Sel. Pleas of Crown_
(Selden Society), p. 18. (2) “Walter Trenchebof was said to have
handed to Inger of Faldingthorpe the knife with which he killed Guy
Foliot, and is suspected of it. Let him purge himself by water that he
did not consent to it. He has failed and is hanged.” _Ibid._, p. 75.

-----

The essentials of this procedure were the same in the Norman as in the
Anglo-Saxon period, and that in all three classes of tribunals—popular
courts, manorial courts, and royal courts.

Two innovations the Norman Kings did make; they introduced trial by
combat (already sufficiently discussed), and likewise the continental
method of obtaining information on sworn testimony. Among the
prerogatives of the Norman Dukes one of the most valuable was the right
to compel the sworn evidence of reliable men of any district—men
specially picked for the purpose, and put on oath before answering the
questions asked of them, thus endangering their eternal welfare in the
event of falsehood, and laying themselves open to temporal penalties for
perjury.

This procedure was known as _inquisitio_ (or the seeking of information)
when regarded from the point of view of the government making the
inquiry, and as _recognitio_ (or the giving of information) from the
point of view of those supplying it. This extremely simple and practical
device was flexible and capable of extension to endless new uses in the
deft hands of the Norman Kings in England. William the Conqueror
employed it in collecting the laws and customs of the conquered people,
and, later on, in compiling Domesday Book; while his successors made it
the instrument of various experiments in the science of taxation. It has
a double claim to the interest of the constitutional historian, because
it was one of the influences which helped to mould our Parliamentary
institutions; and because several of the new uses to which it came to be
put had a close connection with the origin of trial by jury. The
recognitors, indeed, were simply local jurors in a rude or elementary
form.[150]

-----

Footnote 150:

The relation of “recognition” to trial by jury is fully discussed,
_infra_, Part III., section 7.

-----

III. _Reforms of Henry II. in Law Courts and Legal Procedure._ It was
reserved for Henry of Anjou to inaugurate an entirely new era in the
relations of the three classes of courts. He was the first king
deliberately to plan the overthrow of the feudal jurisdictions by
insidiously undermining them, if not yet by open attack. He was the
first king to reduce the old district courts so thoroughly under the
control of royal officials as to turn them practically into royal
courts. He was the first king also to throw open the doors of his own
courts of law to all-comers, to all freemen, that is to say, for the
despised villein had for centuries still to seek redress in the court of
that very lord of the manor who was too often his oppressor.

In brief, then, Henry’s policy was twofold: to convert the County Courts
practically into Royal Courts, since in them royal officials now
dispensed royal justice according to the same rules as prevailed at the
King’s own _Curia_; and to reduce all manorial or private courts to
insignificance by diverting pleas to his own _Curia_, and leaving the
rival tribunals to die gradually from inanition. Both branches of this
policy met ultimately with complete success, although the event hung in
the balance until long after his death. The barons, though partially
deceived by the gradual and insidious nature of Henry’s reforms, did
what they could to thwart him; but the current of events was against
them and with the Crown. Royal justice steadily encroached upon feudal
justice. One of the last stands made by the barons has left its traces
plainly written in several chapters of Magna Carta.[151]

-----

Footnote 151:

_E.g._ 34 and 39.

-----

These contain what seem, at first sight, to be merely trivial
alterations of technical points of court procedure; but inextricably
bound up with them are principles of wide political and constitutional
importance. Henry’s policy was to disguise radical reforms until they
looked like small changes of procedure; it follows that the framers of
Magna Carta, while appearing merely to seek the reversal of these
trivial points, were really seeking to return to the totally different
conditions which had prevailed prior to the reforms of Henry.

A short account of the main outlines of that monarch’s new system of
procedure forms a necessary preliminary to a complete comprehension of
these important chapters of Magna Carta. Such an account falls naturally
into two divisions.

(1) _Criminal Justice._ (_a_) By his Assizes of Clarendon and
Northampton Henry strictly reserved all important crimes for the
exclusive consideration of his own judges either on circuit or at his
court; and he demanded entry for these judges into franchises, however
powerful, for that purpose. In this part of his policy, the King was
completely successful; heinous crimes were, in the beginning of the
thirteenth century, admitted on all hands to be “pleas of the Crown”
(that is, cases exclusively reserved for the royal jurisdiction); and
Magna Carta made no attempt to reverse this part of the Crown’s policy.
The change was accepted as inevitable. All that was attempted in 1215
was to obtain a promise that these functions, now surrendered to the
Crown forever, should be discharged by the Crown’s officials in a proper
manner.[152]

-----

Footnote 152:

See _infra_, under chapters 24 and 45.

-----

(_b_) Henry’s usual good sense, in this matter stimulated by some
notable miscarriages of justice, led him to question the equity of the
procedure usually adopted in criminal pleas, namely, by “appeal” or
formal accusation by the injured party, or his nearest surviving
relative. He substituted, whenever possible, communal accusation for
individual accusation; that is, the duty of proclaiming (or indicting)
the suspected criminals of each district before the King’s Justices was
no longer left to private initiative, but was laid on a body of
neighbours specially selected for that purpose—the predecessors of the
Grand Jury of later days. This new procedure, it is true, supplemented
rather than superseded the older procedure; yet it marked a distinct
advance. Appeals were discouraged and exact rules laid down restricting
the right of accusation to certain cases and individuals.[153]

-----

Footnote 153:

See _infra_, under chapter 54.

-----

(_c_) A necessary complement of the discouragement of appeals was the
discouragement of “trial by combat” also, since that formed the natural
sequel. An ingenious device was invented and gradually extended to an
increasing number of cases; an accused individual might apply for a writ
known as _de odio et atia_, and thus avoid the _duellum_ altogether by
having his guilt or innocence determined by what was practically a jury
of neighbours.[154]

-----

Footnote 154:

See _infra_, under chapter 36.

-----

(2) _Civil Justice._ Henry’s innovations under this head were equally
important.

(_a_) An unflinching rule was established that no case could be brought
before the royal court until a writ had been obtained from chancery.
This had to be paid for, sometimes at a fixed rate, and sometimes at
whatever sum the Crown demanded. The whole procedure in the royal
courts, which followed the issuing of such a writ, came to be known as
“the writ process.” Once it was issued, all proceedings in other courts
must stop. One special form of writ (known as _praecipe_), in
particular, became a royal instrument for removing before the King’s own
_Curia_ cases pending in the manorial courts of mesne lords. To do this
was to enrich the King at the expense of some baron or other freeman, by
bringing to the Exchequer fees which otherwise would be paid to the
owner of the private court. This was plainly "to cause a freeman to lose
his court"—an abuse specially struck at by chapter 34 of the Great
Charter.

(_b_) The mass of new business attracted to the King’s Courts made it
necessary to increase, the staff of judges and to distribute the work
among them. A natural division was that ordinary pleas (or common pleas)
should be tried before one set of judges, and royal pleas (or pleas of
the Crown) before another. This distinction is recognized in many
separate chapters.[155] Thus two groups of judges were formed, each of
which was at first rather a committee of the larger _Curia_ as a whole
than an independent tribunal; but, in later years, the two rapidly
developed into entirely separate courts—the Court of Common Pleas (at
first known as the Bench, that is, the ordinary Bench), and the Court of
King’s Bench (that is, the royal Bench, known also at first as the court
_Coram Rege_, since it was always supposed to be held in the King’s
presence).

Footnote 155:

See _infra_, under chapters 17 and 24.

-----

(_c_) Special procedure for determining pleas of disputed titles to land
or rights of possession was also invented by Henry to take the place of
the ancient method of trial by battle. These Assizes, as they were
called, are fully discussed elsewhere.[156] The Grand Assize was looked
on with suspicion by the barons as a procedure competent only before the
royal courts, and therefore closely bound up with the King’s other
devices for substituting his own jurisdiction for that of the private
courts. The petty assizes, on the contrary, met with a ready acceptance,
and the barons in 1215, far from objecting to their continuance,
demanded that they should be held in regular sessions four times a year
in each county of England.

Footnote 156:

See _infra_, under chapter 18.

-----

These were the chief innovations which enabled Henry, while instituting
many reforms urgently required and gladly welcomed by the mass of his
subjects, at the same time to effect a revolution in the relations of
royal justice to feudal justice. As time went on, new royal writs and
remedies were being continually devised to meet new types of cases; and
litigants flocked more and more readily to the King’s Courts, leaving
the seignorial courts empty of business and of fees. Nor was this the
only grievance of the barons. When one of their own number was amerced
or accused of any offence involving loss of liberty or lands, he might
be compelled by the Crown, under Henry and his sons, to submit to have
the amercement assessed or the criminal proceedings conducted by one of
the new Benches (by a tribunal composed of some four or five of the
King’s officials), in place of the time-honoured judgment of his peers
assembled in the _Commune Concilium_ (the predecessor of the modern
Parliament).

Can we wonder that the barons objected to be amerced and judged by their
inferiors?[157] Can we wonder that they resented the complete though
gradual supersession of their own profitable jurisdictions by the royal
courts?[158] or that they looked with suspicion on every new legal
development of the royal justice? Can we wonder that, when they seemed
to have King John for the moment in their power, they demanded redress
of this group of grievances, as well as of those connected with
arbitrary increase of feudal burdens?

-----

Footnote 157:

See _infra_, under chapters 21 and 39.

Footnote 158:

See _infra_, under chapter 34.

-----

The cause for wonder rather is that their demands in this respect were
not more sweeping and more drastic. It was one thing for their fathers
to have endured the encroachments of so strong a King as Henry II.—far
too wise a statesman to show clearly whither his innovations were
ultimately tending, and (some lapses notwithstanding) a just ruler on
the whole, using his increased prerogatives with moderation and for
national ends. It was quite another thing to endure the same
encroachments (or worse) from an unpopular King like John, discredited
and in their power, who had neither disguised his arrogance nor made
good use of his prerogatives. Royal justice, as dispensed by John, was
in every way inferior to royal justice as dispensed under his father’s
vigilant eye. Yet the exasperated barons, in the hour of their triumph,
actually accepted, and accepted cordially, one half of royal justice;
while they sought to abolish only the other half. The chapters bearing
on the question of jurisdiction may thus be arranged in two groups, some
reactionary, and some favourable to Henry’s reforms. On the one hand, no
lord of a manor shall be robbed of his court by the King evoking before
the royal courts pleas between two freeholders of the lord’s manor;[159]
no freeman shall be judged or condemned by the King’s officials, but
only before the full body of his peers (that is, of his fellow earls and
barons, if he be an earl or baron, and of his fellow tenants of the
manor, if he holds of a mesne lord);[160] earls and barons must be
amerced only by their equals.[161] On the other hand, in prescribing
remedies for various abuses connected with numerous branches of legal
procedure recently introduced into the royal courts, the barons accepted
by implication this new procedure itself and the royal encroachments
implied therein. For example, the Crown’s right to hold “Common Pleas”
was impliedly admitted, when the barons asked and obtained a promise
that these should be tried in some certain place (that is, at
Westminster).[162] Yet these very pleas, ordinary ones in which the
Crown had no special interest, as opposed to Pleas of the Crown in which
it had, must have included many cases which, prior to Henry II.’s
reforms, would not have been tried in a royal court. Again, in
regulating the various Petty Assizes, chapters 18 and 19 admit the
Crown’s right to hold them. Such Assizes must be taken henceforth four
times a year. Here, as in chapter 40, the ground of complaint is not
that there is too much of royal justice, but rather that there is too
little of it; it is henceforth to be neither delayed nor denied.
Further, the encroachments made by Henry II. in 1166 on the rights of
private franchises in the matter of criminal jurisdiction are
homologated by acquiescence in the King’s definition of “Pleas of the
Crown” implied in chapter 24.

-----

Footnote 159:

c. 34

Footnote 160:

c. 39.

Footnote 161:

c. 21.

Footnote 162:

c. 17.

-----

These, then, are the two clearly contrasted groups into which the
innovations made by Henry and his sons, within the province of justice,
naturally fell as viewed by John’s opponents in 1215: some of them had
now come to be warmly welcomed, and these, it was insisted, must be
continued by the Crown; while some of them still excited as bitter
opposition as ever, and these, it was insisted, must be utterly swept
away.

PART III.
MAGNA CARTA: ITS FORM AND CONTENTS.

I. Its Prototypes: Earlier Charters.

However wide and scattered were the sources from which the substance of
the Great Charter was derived, its descent, on its formal side, can
readily be traced, through an unbroken line of antecedents, back to a
very early date. Magna Carta is directly descended from the Charter of
Liberties of Henry I., and that, again, was a written supplement to the
vows taken by that monarch at his coronation, couched in similar terms
to those invariably sworn at their anointing by the Anglo-Saxon kings of
England, from Edgar to Edward Confessor.

The ties which thus connect King John’s promises of good government with
the promises to the same effect made at their coronation by the princes
of the old dynasty of Wessex are by no means of an accidental nature.
Not only is identity of substance, in part at least, maintained
throughout; but the promises were the outcome of an essential feature of
the old English constitution—a feature so deeply rooted that it survived
the shock of the Norman Conquest. This feature, so fundamental and so
productive of great issues, was the elective or quasi-elective nature of
the monarchy. During the Anglo-Saxon era, two rival principles, the
elective and the hereditary, struggled for the mastery in determining
the succession to the Crown. In an unsettled state of society, nations
cannot allow the sceptre to pass into the hands of an infant or a
weakling. When a king died, leaving a son of tender age, and survived by
a brother of acknowledged ability and mature powers, it was only natural
that the latter should, in the interests of peace and order, be
preferred to the throne. In such cases, the strict principle of
primogeniture was not followed. The magnates of the kingdom, the
so-called Witan, claimed the right to choose a fitting successor; yet in
so doing they usually paid as great regard to the claims of kindred as
circumstances permitted. The exact relations between the elective and
the hereditary principles were never laid down with absolute precision.
Indeed, the want of definition in all constitutional questions was
characteristic of the age—a truth not sufficiently apprehended by
writers of the school of Kemble and Freeman. The practice usually
followed by the Witenagemot was to select as the new ruler some kinsman
of the late king standing in close relationship to him, and at the same
time competent for the high post. The king-elect thus appointed had,
before his title was complete, to undergo a further ceremony: he
required to be solemnly anointed by the representative of the spiritual
power, and this gave to the Church an important share in deciding who
should be king. At an early date—exactly how early is not known, but
certainly not later than the days of Edgar—it became the invariable
practice for the officiating archbishop to exact an oath of good
government from the king-elect before his final coronation. The precise
terms of this oath became stereotyped; and, as administered by Dunstan
to King Ethelred, they are still extant.[163]

-----

Footnote 163:

The words have come down to us in two versions: one Anglo-Saxon and
the other Latin. The former is preserved in _Memorials of St. Dunstan_
(Rolls Series), p. 355, where it is translated by Dr. Stubbs:—

"In the name of the Holy Trinity I promise three things to the
Christian people and my subjects: first, that God’s church and all
Christian people of my dominions hold true peace; the second is that I
forbid robbery and all unrighteous things to all orders; and third,
that I promise and enjoin in all dooms, justice and mercy, that the
gracious and merciful God of his everlasting mercy may forgive us all,
who liveth and reigneth." The name of the King is not mentioned, and
may have been either Edward or Ethelred, but is usually identified
with the latter. See Kemble, _Saxons in England_, II. 35.

-----

It may be briefly analyzed into three promises—peace to God’s Church and
people; repression of violence in men of every rank; justice and mercy
in all judgments. Such was the famous tripartite oath taken, after
celebration of mass, over the most sacred relics laid on the high altar,
in presence of Church and people, by the kings of the old Anglo-Saxon
race. When William I., anxious in all things to fortify the legality of
his title, took the oath in this solemn form, he created a precedent of
tremendous importance, although he may have regarded it at the moment as
an empty formality.[164]

-----

Footnote 164:

Two independent authorities, both writing from the English point of
view, Florence of Worcester, and the author of the Worcester version
of the _Chronicle_, agree that the Conqueror took the oath; the Norman
authorities neither contradict nor confirm this. “William of Poitiers
and Guy are silent about the oath.” Freeman, _Norman Conquest_, III.
561, note.

-----

This step was doubly important: as a link with the past, as a precedent
for the future. A bridge was thus thrown across the social and political
gulf of the Norman Conquest, preserving the continuity of the monarchy
and of the basis on which it was founded. The elective character of the
kingship, the need for coronation by the Church, and (the natural
supplement of both) this tripartite oath containing promises of good
government, valuable though vague, were all preserved.

This was of vital moment, because limits were thereby placed, in theory
at least, on prerogatives that threatened in practice to become
absolute. Undoubtedly the power of the Norman kings was very great, and
might almost be described as irresponsible despotism, tempered by the
fear of rebellion. Three forces indeed acted as curbs: the practical
necessity for consulting the Curia Regis (or assembly of crown vassals)
before any vital step was taken; the restraining influence of the
national Church, backed by the spiritual powers of Rome; and the growth,
in a vague form, it is true, of a body of public opinion confined as yet
to the upper classes.

All these elements counted for something, but failed to restrain
sufficiently even an average king; while they were powerless against a
strong ruler like William I. The only moment at which the Crown might be
taken at a clear disadvantage was during the interregnum which followed
the death of the last occupant of the throne. Two or more rival heirs
might aspire to the high position, and would be eager to make promises
in return for support. Thus, William Rufus, at his father’s death,
anxious to prevent his elder brother, Duke Robert, from making good his
claim to the English throne, succeeded chiefly through the friendship of
Lanfranc. To gain this, he was compelled to make promises of good
government, and to follow his father’s precedent by taking the oath in
the ancient form, in which it had been administered by Dunstan to
Ethelred. In the same reign began the practice of supplementing verbal
promises by sealed charters, which in some respects must be regarded
simply as the old coronation oath confirmed, expanded, and reduced to
writing. No such charter was indeed issued either by Rufus or by his
father when they were crowned; but the younger William, at a critical
period later in his reign, seems to have granted a short Charter of
Liberties, the exact contents of which have not come down to us. At the
death of Rufus, his younger brother, Henry I., found himself hard
pressed in the competition for the English Crown by Duke Robert (the
Conqueror’s eldest son). By a treaty made at Caen in 1091, Duke Robert
and Rufus had agreed that each should constitute the other his heir.
Thus Henry was, in a sense, a usurper, and this circumstance made it
necessary for him to bid high for influential support.[165] It is to
this doubtful title, coupled with the knowledge of widespread
disaffection, that Englishmen owe the origin of the first Charter of
Liberties that has come down to us.[166]

-----

Footnote 165:

Stubbs, _Const. Hist._, I. 328-9, and authorities there cited.

Footnote 166:

See Appendix.

-----

This charter was the price paid by Henry for the support he required in
his candidature for the Crown. In granting it he admitted, in a sense,
the contractual basis of his kingship. In discussing its tone and
general tenor there is ample room for differences of opinion. Dr.
Stubbs[167] maintains that Henry thereby “definitely commits himself to
the duties of a national King.” Writers of almost equal authority
somewhat modify this view, holding that, although circumstances forced
Henry to pose as the leader of the entire nation, yet nothing of this
could be traced in the charter, the basis of which seems to have been
feudal rather than national.[168]

-----

Footnote 167:

_Const. Hist._, I. 331.

Footnote 168:

See Prothero, _Simon de Montfort_, 16: “That charter had been mainly
of a feudal character; it contained no provision for, and scarcely
even hinted at, a constitutional form of government.”

-----

This view is strengthened by analysis of the actual provisions of the
charter. While important and definite concessions were made to the
Church and to the Crown-tenants, those to the people at large were few
and vague—so vague as to be of little practical use. The Church, it was
declared, “should be free,” a wide phrase to which these particulars
were added, namely, that the wardship of sees during vacancies should
not be sold or hired out, and that no sums should be demanded in name of
reliefs from the lands or tenants of a see when a death occurred. The
“baronage” (to use a convenient anachronism for “the Crown-tenants
considered collectively”) received redress of their worst grievances in
regard to reliefs and other feudal obligations. In this respect Henry’s
charter anticipated and even went beyond some of the reforms of
1215.[169]

-----

Footnote 169:

Details are reserved for consideration under the feudal clauses of the
Great Charter.

-----

It is true that the mass of the people may have indirectly benefited by
many of these provisions; but when we look for measures of a directly
popular character, only three can be found, namely, promises to enforce
peace in the land, to take away evil customs, and to observe the laws of
Edward Confessor as amended by William I. This is too slender a basis on
which to found a claim to take rank as a “national king,” even if Henry
had any intention of keeping his promises. It is now notorious that not
a single promise remained unbroken.[170]

-----

Footnote 170:

See Round, _Feudal England_, 227, and Pollock and Maitland, I. 306.

-----

From another point of view the charter is a criticism on the
administration of Rufus (and to some extent also of the Conqueror),
combined with a promise of amendment. Henry thus posed as a reformer,
and forswore the evil customs of his father and brother. The great value
of the charter, however, lies in this, that it is the first formal
acceptance (published under seal and in proper legal shape) of the old
law of Anglo-Saxon England by a ruler of the new alien dynasty; yet in
this Henry was only completing what his father had begun. These
considerations help to account for the almost exaggerated importance
attached to Henry’s charter during the reign of John.

If all efforts made to defeat Henry’s succession failed, the succession
of his daughter Matilda was disputed triumphantly. Stephen, taking
advantage of his cousin’s absence and of her personal unpopularity, made
a rapid descent on England with the spasmodic energy which characterized
him, and successfully snatched the Crown. Trained in English ways on
English soil, he was quickly on the spot and very popular. These
features in his favour, however, did not render his position entirely
secure as against the daughter and heiress of so strong a King as Henry
I., to whom, indeed, Stephen himself, with all the magnates of England,
had already thrice sworn allegiance. He was only one of two competitors
for the Crown, with chances nearly equal. From the moment of the old
King’s death, “the Norman barons treated the succession as an open
question.” In these words of Bishop Stubbs,[171] Mr. J. H. Round
finds[172] the keynote of the reign. Stephen was never secure on his
throne, and had to make indiscriminate promises first to obtain, and
afterwards to retain, his position. He was thus prepared to bid much
higher for support than Henry had felt compelled to do. Adherents had to
be gained painfully, one by one, by the grant of special favours to
every individual whose support was worth the buying.

-----

Footnote 171:

Stubbs, _Const. Hist._, I. 345.

Footnote 172:

Round, _Geoffrey de Mandeville_, p. 1.

-----

Bargains were struck with the Londoners, with Stephen’s brother Henry of
Blois (Bishop of Winchester), with the Keepers of the King’s Treasure,
with the Archbishop of Canterbury, and with the Justiciar (Bishop Roger
of Salisbury). The support of the two last mentioned carried with it the
support of the Church and of the administrative staff of the late king,
but was only gained by wide concessions. Thus Stephen, like William of
Orange, five centuries later, agreed to become “king upon conditions.” A
Charter of Liberties and a solemn oath securing "the liberty of the
Church"—a vague phrase, it is true, but none the less dangerous on that
account—together formed the price of Stephen’s consecration; and this
price was not perhaps too high when we remember that "election was a
matter of opinion, coronation a matter of fact"—a solemn sacrament that
could hardly be undone.[173]

-----

Footnote 173:

Round, _Geoffrey de Mandeville_, p. 6. Mr. Round, _ibid._, p. 438,
explains that the reason of the omission from this earlier charter of
Stephen (unlike the more lengthy and important one which followed four
months later) of all mention of the Church was that Stephen, at the
time of granting, supplemented it by the verbal promise recorded by
William of Malmesbury, _de libertate reddenda ecclesiae et
conservanda_.

-----

Even this important ceremony, however, left Stephen’s throne a tottering
one; he was compelled to buy the adherence of powerful magnates by
lavish concessions of land and franchises; and various charters in
favour of individual nobles still exist as witnesses to such bribes. The
process by which he built up a title to the Crown seems to have
culminated in the Easter of 1136, when he secured the support of
Matilda’s half-brother Robert, Earl of Gloucester, whose lead was
quickly followed by other influential nobles. All of these new
adherents, however, performed homage to the King under an important
reservation, namely, that their future loyalty would be strictly
conditional on the treatment extended to them by Stephen. That
unfortunate monarch accordingly, by tolerating such conditional
allegiance, was compelled to acknowledge the inherent weakness of his
position even in the moment of his nominal triumph.[174]

-----

Footnote 174:

The whole incident is so remarkable that it seems well to cite the
exact words of William of Malmesbury, II. 541: “_Itaque homagium regi
fecit sub conditione quadam, scilicet quamdiu ille dignitatem suam
integre custodiret et sibi pacta servaret_.”

-----

These important transactions took place apparently at Oxford,[175] and
at the same time the King issued his second or Oxford Charter, which
embodied and expanded the contents of earlier charters and oaths. This
Oxford Charter, the date of which has been proved to be early in
April,[176] is noteworthy alike for the circumstances in which it was
granted, placing as it did the copestone on the gradual process by which
Stephen was “elected” king, and also for its contents, which combined
the earlier oath to the Church and the vague, unsatisfactory earlier
charter to the people, with the new conditions extorted by Earl Robert
and his followers.

-----

Footnote 175:

Round, _Geoffrey_, 22.

Footnote 176:

Round, _Geoffrey_, 23–4.

-----

The opening words, in which Stephen describes himself as “King of the
English,” may be read as a laboured attempt to set forth a valid title
to the throne. All reference to predecessors is carefully avoided, and
the usurper declares himself to be king "by appointment of the clergy
and people, by consecration of the archbishop and papal legate, and by
the Pope’s confirmation."[177]

-----

Footnote 177:

Stephen was not justified in this last assumption. See Round,
_Geoffrey_, 9.

-----

Perhaps its chief provisions are those in favour of the Church,
supplementing a vague declaration that the Church should be “free” by
specific promises that the bishops should have exclusive jurisdiction
and power over churchmen and their goods, along with the sole right to
superintend their distribution after death. Here was a clear
confirmation of the right of the Courts Christian to a monopoly of all
pleas affecting the clergy or their property. It is the first distinct
enunciation in England of the principle afterwards known as "benefit of
clergy"—and that, too, in a form more sweeping than was ever afterwards
repeated. Stephen also explicitly renounced all rights inherent in the
Crown to wardship over Church lands during vacancies—a surrender never
dreamed of by either Henry I. or Henry II.

Grants to the people at large followed. A general clause promising peace
and justice was again supplemented by specific concessions of more
practical value, namely, a promise to extirpate all exactions, unjust
practices, and “miskennings” by sheriffs and others, and to observe
good, ancient, and just customs in respect of murder-fines, pleas, and
other causes.

Strangely enough, there is only one provision specially benefiting
feudal magnates, the King’s disclaimer of all tracts of land afforested
since the time of the two Williams. The omission of further feudal
concessions must not be attributed either to Stephen’s strength, or to
any spirit of moderation or self-sacrifice in the magnates. Each baron
of sufficient importance had already extorted a special charter in his
own favour, more emphatic and binding from its personal nature, and
accordingly more valued than a mere general provision in favour of all
and sundry. Such private grants generally included a confirmation of the
grantee’s right to maintain his own feudal stronghold, thus placing him
in a position of practical independence.

It is instructive to compare these wide promises of Stephen with the
meagre words of the charter granted by Henry of Anjou at or soon after
his Coronation.[178] Henry II. carefully omits all mention of Stephen
and his charters, not, as is sometimes supposed, because he did not wish
to acknowledge the existence of a usurper, but because of that usurper’s
lavish grants to the Church. Henry had no intention either to confirm
“benefit of clergy” in so sweeping a form as Stephen had done, or to
renounce wardship over the lands of vacant sees.

-----

Footnote 178:

The charter of Henry II. is given in Bémont, _Chartes_, 13, and in
_Select Charters_, 135. It seems worth while to mention in this
connection a notable mistake of a writer whose usual accuracy is
envied by his brother historians. Mr. J. H. Round (_Engl. Hist. Rev._,
VIII. 292) declares that “the royal power had increased so steadily
that Henry II. and his sons had been able to abstain from issuing
charters, and had merely taken the old tripartite oath.”

-----

To the Church, as to the barons, Henry Plantagenet confirms only what
his grandfather had already conceded. Even when compared with the
standard set by the charter of Henry I., that of the younger Henry is
shorter and less explicit, and therefore weaker and more liable to be
set aside—features which justified Stephen Langton in his preference for
the older document. If Henry II. granted a short and grudging charter,
neither of his sons, at their respective coronations, granted any
charter at all. Reasons for the omission readily suggest themselves; the
Crown had grown strong enough to dispense with this unwelcome formality,
partly because of the absence of rival competitors for the throne, and
partly because of the perfection to which the machinery of government
had been brought. The utmost which the Church could extract from Richard
and John as the price of their consecration was the renewal of the three
vague promises contained in the words of the oath, now taken as a pure
formality. The omission to grant charters was merely one symptom of the
diseases of the body politic consequent on the overweening power of the
Crown, and proves how urgent was the need of some such re-assertion of
the nation’s liberties as came in 1215.

John, at least, was not to be allowed to shake himself free from the
obligations of his oath, or from the promise to confirm the ancient laws
and customs of the land therein contained. Stephen Langton, before
absolving him from the effects of his quarrel with Rome, compelled him
to renew the terms of the coronation oath.[179]

-----

Footnote 179:

See _supra_, p. 32, and Round, _Eng. Hist. Rev._, VIII. 292.

Nor was this all; from a meeting held at St. Albans on 4th August, 1213,
writs were issued in the King’s name to the various sheriffs, bidding
them observe the laws of Henry I. and abstain from unjust
exactions.[180] Three weeks later (on 25th August), the production of a
stray copy of Henry’s charter is said, by Roger of Wendover, to have
made a startling impression on all present,[181] and the same charter
was a second time produced at Bury St. Edmunds, on 4th November, 1214,
and was accepted by the malcontents as a model which, modified and
enlarged, might serve as a basis for the redress of the grievances of
the reign.[182]

-----

Footnote 180:

_Supra_, p. 34.

Footnote 181:

_Supra_, p. 35.

Footnote 182:

_Supra_, p. 38.

-----

It is thus both excusable and necessary to place much stress on this
sequence of coronation oaths and charters, as contributing both to the
form and to the substance of the Magna Carta of John. Yet the tendency
to take too narrow a view of the antecedents of the Great Charter must
be carefully guarded against. Many ingredients went to the making of it.
Numerous reforms of Henry II., whether embodied or not in one or more of
the ordinances or assizes that have come down to us, must be reckoned
among their number, equally with those constitutional documents which
happen to be couched in the form peculiar to charters granted under the
king’s great seal. It is also necessary to remember the special grants
made by successive kings of England to the Church, to London and other
cities, and to individual prelates and barons. In a sense, the whole
previous history of England went to the making of Magna Carta. The
sequence of coronation oaths and charters is only one line of descent;
the Great Charter of John can trace its origin through many other lines
of distinguished ancestors.

II. Magna Carta: its Form and Juridical Nature.

Much ingenuity has been expended, without adequate return, in the effort
to discover which particular category of modern jurisprudence most
exactly describes the Great Charter of John. Is it an enacted law, or a
treaty; the royal answer to a petition; or a declaration of rights? Is
it a simple pact, bargain, or agreement between contracting parties? Or
is it a combination of two or more of these? Something has been said in
favour of almost every possible view, perhaps more to the bewilderment
than to the enlightenment of students of history uninterested in legal
subtleties.

The claim of Magna Carta to rank as a formal act of legislation has been
supported on the ground that it was promulgated in what was practically
a _commune concilium_. King John, it is maintained, met in a national
assembly all the estates of his realm who were then endowed with
political rights, and these concurred with him in the granting of Magna
Carta. The consent of all who claimed a share in the making or repealing
of laws—archbishops, bishops, abbots, earls, and crown-tenants, great
and small—entitles the Charter to rank as a regular statute.

Against this view, however, technical informalities may be urged. Both
the composition of the Council and the procedure adopted there, were
irregular. No formal writs of summons had been issued, and, therefore,
the meeting was never properly constituted; many individuals with the
right and duty of attendance had no opportunity to be present. Further,
the whole proceedings were tumultuary; the barons assembled in military
array and compelled the consent of John by turbulence and show of force.
On these grounds, modern jurisprudence, if appealed to, would reject the
claim of the Charter to be enrolled as an ordinary statute.

On the other hand, it may be argued that Magna Carta, while something
less than a law, is also something more. A law made by the king in one
national assembly might be repealed by the king in another; whereas the
Great Charter was intended by the barons to be unchangeable. It was
granted to them and their heirs for ever; and, in return, a price had
been paid, namely, the renewal of their allegiance—a fundamental
condition of John’s continued possession of the throne.[183]

-----

Footnote 183:

The _quid pro quo_ received by the King was merely the promise of
_conditionel_ homage, dependent (as we learn from chapter 63) on his
observance of the conditions of the Charter. This arrangement may be
compared with the agreement made between Stephen and the Earl of
Gloucester in 1136 (see _supra_, p. 120), and it bears some points of
analogy with the procedure adopted by the framers of the Bill of
Rights, who inserted a list of conditions in the Act of Parliament
which formed the title of William and Mary to the throne of England.

-----

Magna Carta has also been frequently described as a treaty. Such is the
verdict of Dr. Stubbs.[184] “The Great Charter, although drawn up in the
form of a royal grant, was really a treaty between the King and his
subjects.... It is the collective people who really form the other high
contracting party in the great capitulation.”[185] This view receives
some support from certain words contained in chapter 63 of the Charter
itself: “_Juratum est autem tam ex parte nostra quam ex parte baronum,
quod haec omnia supradicta bona fide et sine malo ingenio
observabuntur_.”

-----

Footnote 184:

_Const. Hist._, I. 569.

Footnote 185:

Mr. Prothero is of the same opinion (_Simon de Montfort_, 15). It was
“in reality a treaty of peace, an engagement made after a defeat
between the vanquished and his victors.”

-----

It is not sufficient to urge against this theory, as is sometimes done,
that the concord was entered into in bad faith by one or by both of the
contracting parties. It is quite true that the compromise it contained
was accepted merely as a cloak under which to prepare for war; yet
jurisprudence, in treating of formal documents granted under seal, pays
no attention to sincerity or insincerity, but looks merely to the formal
expression of consent.

Interesting questions might also be raised as to how far it is correct
to extend to treaties the legal rule which declares void or voidable all
compacts and agreements induced by force or fear. In a sense, every
treaty which ends a great war would fall under such condemnation, since
the vanquished nation always bows to _force majeure_. Such claims as the
Great Charter may have to rank as a treaty are not, therefore,
necessarily weakened by John’s subsequent contention that when granting
it he was not a free agent.

There is, however, a more radical objection. A treaty is a public act
between two contracting powers, who must, to meet the requirements of
modern jurisprudence, be independent States or their accredited agents;
while John and his opponents were merely fragments of one nation or
State, torn asunder by mutual fears and jealousies.

Some authorities discard alike the theory of legislation and the treaty
theory to make way for a third, namely, that Magna Carta is merely a
contract, pact, or private agreement. M. Emile Boutmy is of this
opinion. "Le caractère de cet acte est aisé à définir.[186] Ce n’est pas
précisément un traité, puisqu’il n’y a pas ici deux souverainetés
légitimes ni deux nations en présence; ce n’est pas non plus une loi;
elle serait entachée d’irrégularité et de violence; c’est un compromis
ou un pacte."[187]

-----

Footnote 186:

Here we differ from him.

Footnote 187:

_Études de droit constitutionnel_, 41.

-----

Thus considered, the proudest act of the national drama would take its
place in the comparatively humble legal category which includes such
transactions as the hire of a waggon or the sale of a load of corn.
There are, however, fatal objections to this theory also. It is
difficult to see how the plea of “force,” if sufficient (as M. Boutmy
urges) to render null the enactment of a public law, would not be even
more effective in reducing a private agreement. If Magna Carta has no
other basis than the declared consent of the contracting parties, it
seems safer to describe it as a public treaty than as a private or civil
pact devoid of political significance.

Other theories also are possible; as, for example, that the Great
Charter is of the nature of a Declaration of Rights, such as have played
so prominent a part in the political history of France and of the United
States; while a recent American writer on English constitutional
development seems almost to regard it as a code, creating a formal
constitution for England—in a rude and embryonic form, it is true. “If a
constitution has for its chief object the prevention of encroachments
and the harmonizing of governmental institutions, Magna Carta answers to
that description, at least in part.”[188]

-----

Footnote 188:

Prof. Jesse Macy, _English Constitution_, 162.

-----

It would be easy to find examples of attempts to compromise between
these competing theories, by combining two or more of them. Thus, a high
English authority declares that “the Great Charter is partly a
declaration of rights, partly a treaty between Crown and people.”[189]

-----

Footnote 189:

Sir William R. Anson, _Law of the Constitution_, I. 14.

-----

The essential nature of what took place at Runnymede, in June, 1215, is
plain, when stripped of legal subtleties. A bargain was struck between
the King and the rebel magnates, the purport of which was that the
latter should renew their oaths of fealty and homage, and give security
that they would keep these oaths, while John, in return, granted “to the
freemen of England and their heirs for ever” the liberties enumerated in
sixty-three chapters. No one thought of asking whether the transaction
thus concluded was a “treaty” or a private “contract.”

The terms of this bargain, however, had to be drawn up in proper legal
form, so as to bear record for all time to the exact nature of the
provisions therein contained, and also to the authenticity of John’s
consent thereto. It was, therefore, reduced to writing, and the
resulting document was naturally couched in the form invariably used for
all irrevocable grants intended to descend from father to son, namely, a
feudal charter, authenticated by the addition of a seal—just as in the
case of a grant of land, and with many of the clauses appropriate to
such a grant.[190]

-----

Footnote 190:

In strict legal theory the complete investiture of the grantee
required that “charter” should be followed by “infeftment” or delivery
(real or constructive) of the subject of the grant. In the case of
such intangible things as political rights and liberties, the actual
parchment on which the Charter was written would be the most natural
symbol to deliver to the grantees.

-----

John grants to the freemen of England and their heirs certain specified
rights and liberties, as though these were merely so many hides or acres
of land. _Concessimus etiam omnibus liberis hominibus regni nostri, pro
nobis et haeredibus nostris in perpetuum, omnes libertates subscriptas,
habendas et tenendas, eis et haeredibus suis, de nobis et haeredibus
nostris._[191] The legal effect of such a grant is hard to determine;
and insuperable difficulties beset any attempt to expound its legal
consequences in terms of modern law.[192] In truth, the form and
substance of Magna Carta are badly mated. Its substance consists of a
number of legal enactments and political and civil rights; its form is
borrowed from the feudal lawyer’s book of styles for conferring a title
to landed estate.[193]

-----

Footnote 191:

See chapter 1. The grant which thus purports to be perpetually binding
on John’s heirs, was in practice treated as purely personal to John,
and requiring confirmation by his son. Yet this also was in strict
accordance with feudal theory, which required the heir to complete his
title to his deceased father’s real estate by obtaining a Charter of
Confirmation from his lord, for which he had to pay “relief.” The
liberties of the freemen were only a new species of real estate.

Footnote 192:

Prof. Maitland, _Township and Borough_, p. 76, explains some of the
absurdities involved: "Have you ever pondered the form, the scheme,
the main idea of Magna Charta? If so, your reverence for that sacred
text will hardly have prevented you from using in the privacy of your
own minds some such words as ‘inept’ or ‘childish.’ King John makes a
grant to the men of England and their heirs. The men of England and
their heirs are to hold certain liberties of that prince and his heirs
for ever. Imagine yourself imprisoned without the lawful judgment of
your peers, and striving to prove while you languish in gaol that you
are heir to one of the original grantees. Nowadays it is only at a
rhetorical moment that Englishmen ‘inherit’ their liberties, their
constitution, their public law. When sober, they do nothing of the
kind. But, whatever may have ‘quivered on the lip’ of Cardinal Langton
and the prelates and barons at Runnymead, the speech that came was the
speech of feoffment. Law, if it is to endure, must be inherited. If
all Englishmen have liberties, every Englishman has something, some
thing, that he can transmit to his heir. Public law cannot free itself
from the forms, the individualistic forms of private law."

Footnote 193:

Pollock and Maitland, I. 150, emphasize this disparity. “In form a
donation, a grant of franchises freely made by the king, in reality a
treaty extorted from him by the confederate estates of the realm, ...
it is also a long and miscellaneous code of laws.” Cf. also _Ibid._,
I. 658.

The results of this inquiry seem then to be completely negative. It is
useless to describe phenomena of the thirteenth century in modern
phraseology which would have been unintelligible to contemporaries.
Medieval lawyers experienced great difficulties in trying to express the
actual facts of their day in terms of such categories of the Roman
jurisprudence as had survived the fall of Rome and Roman civilization.
There is no one of the ancient or modern categories which can be applied
with confidence to the Great Charter or to the transaction of which it
is the record. Magna Carta may perhaps be described as a treaty or a
contract which enacts or proclaims a number of rules and customs as
binding in England, and reduces them to writing in the unsuitable form
of a feudal charter granted by King John to the freemen of England and
their heirs.

III. Magna Carta: its Contents and Characteristics.

The confirmation of the rights enumerated in the sixty-three chapters of
the Charter represented the price paid by John for the renewed
allegiance of the rebels. These rights are fully discussed, one by one,
in the second part of the present volume: a brief description of their
more prominent characteristics, when viewed as a collective whole, is,
therefore, all that is here required.

In the attempt to analyze the leading provisions, various principles of
classification have been adopted. Three of these stand out prominently:
the various chapters may be arranged according to the functions of the
central government which they were intended to limit; according to their
own nature as progressive, reactionary, or merely declaratory; and,
finally, according to the classes of the community which reaped the
greatest benefit.

I. _Provisions classified according to the various prerogatives of the
Crown which they affect._

Dr. Gneist[194] adopts this principle of division, and arranges the
chapters of Magna Carta into five groups according as they place legal
limitations (1) on the feudal military power of the Crown, (2) on its
judicial power, (3) on its police power, (4) on its financial power, or
(5) furnish a legal sanction for the enforcement of the whole. In spite
of Dr. Gneist’s high authority, it is doubtful whether an analysis of
Magna Carta upon these somewhat arbitrary lines throws much light on its
main objects or results. Such a division, if convenient for some
purposes, seems artificial and unreal, since it is founded on
distinctions which were not clearly formulated in the thirteenth
century. The adoption of such a principle of classification with
reference to a period when the various functions of the executive were
still blended together indiscriminately is somewhat of an
anachronism.[195]

-----

Footnote 194:

_Hist. Engl. Const._, Chapter XVIII.

Footnote 195:

Dr. Gneist indeed almost confesses this, when, in discussing the
limitations of the financial power, he feels constrained to say that
many of these are “already comprised in the provisions touching the
feudal power.”

-----

II. _Provisions classified according as they are of a progressive,
reactionary, or declaratory nature._

Among the many questions pressing for answer, none seem more natural
than those which inquire into the relations between the promises made in
the Charter and the system of government actually at work under Henry of
Anjou and his sons; or the relations between these promises and the
still older laws of Edward Confessor.

The view generally entertained is that the provisions of Magna Carta are
chiefly, if not exclusively, of a declaratory nature. The Great Charter
has for many centuries been described as an attempt to confirm and
define existing customs rather than to change them. In the words of
Blackstone,[196] writing in 1759, “It is agreed by all our historians
that the Great Charter of King John was for the most part compiled from
the ancient customs of the realm, or the laws of King Edward the
Confessor, by which they usually mean the common law, which was
established under our Saxon princes, before the rigours of feudal
tenures and other hardships were imported from the continent.”
Substantially the same doctrine has been enunciated only the other day,
by our highest authority. "On the whole, the charter contains little
that is absolutely new. It is restorative. John in these last years has
been breaking the law; therefore the law must be defined and set in
writing.[197] This view seems, on the whole, a correct one; the
insurgents in 1215 professed to be demanding nothing new, but merely a
return to the good laws of Edward Confessor, as supplemented by the
promises contained in the charter of Henry I. An unbroken thread runs
back from Magna Carta to the laws and customs of Anglo-Saxon England and
the old coronation oaths of Ethelred and Edgar. Yet the Great Charter
contained much that was unknown to the days of the Confessor and had no
place in the promises of Henry I. In many points of detail the Charter
must look for its antecedents rather to the administrative changes
introduced by Henry II. than to the old customary law that prevailed
before the Conquest.

-----

Footnote 196:

_Great Charter_, vii.

Footnote 197:

Pollock and Maitland, I. 151.

-----

Thus it is not sufficient to describe Magna Carta merely as a
declaratory enactment; it is necessary to distinguish between the
different sources of what it declared. A fourfold division may be
suggested. (1) Magna Carta embodied and handed down to future ages some
of the usages of the old customary law of Anglo-Saxon England, unchanged
by the Conqueror or his successors, now confirmed and purified from
abuses. (2) In defining feudal incidents and services, it confirmed many
rules of the feudal law brought into England by the Normans subsequently
to 1066. (3) It also embodied many provisions of which William I. and
even Henry I. knew no more than did the Anglo-Saxon kings—innovations
introduced for his own purposes by Henry of Anjou, but, after half a
century of experience, now accepted loyally even by the most bitter
opponents of the Crown. In the words of Mr. Prothero, “We find ... the
judicial and administrative system established by Henry II. preserved
almost intact in Magna Carta, though its abuse was carefully guarded
against.”[198] Finally, (4) in some few points, the Charter actually
aimed at going farther than Henry II., great reformer as he was, had
intended to go. Thus, to mention only two particulars, the Petty Assizes
are to be taken in every county four times a year, while sheriffs and
other local magistrates are entirely prohibited from holding pleas of
the Crown.

-----

Footnote 198:

_Simon de Montfort_, 17.

-----

There are two further reasons why we cannot be content with an
explanation which dismisses Magna Carta with the bald statement that its
provisions are merely of a declaratory nature. History has proved the
universal truth of the theory that a purely declaratory enactment is
impossible; since the mere lapse of time, by producing an altered
historical context, necessarily changes the purport of any Statute when
re-enacted in a later age. Even if words identically the same are
repeated, the new circumstances read into them a new meaning. Such is
the case even when the framers of these re-enactments are completely
sincere, which, often, they are not. It is no unusual device for
innovators to render their reforms more palatable by presenting them
disguised as returns to the past. Magna Carta affords many illustrations
of this. Its clauses, even where they profess to be merely confirmatory
of the _status quo_, in reality alter existing custom.

Further, it is of vital importance to bear in mind the exact nature of
the provisions confirmed or declared. A re-statement of some of the more
recent reforms of Henry II. (or of those of Archbishop Hubert Walter,
following in his footsteps) leads logically to progress rather than to
mere stability; while the professed confirmation of Anglo-Saxon usages
or of ancient feudal customs, fast disappearing under the new _régime_,
implies retrogression rather than standing still. Chapters 34 and 39 of
Magna Carta, for example, are of this latter kind. They really demand a
return to the system in vogue prior to the innovations of Henry II. when
they declare in favour of feudal jurisdictions. Thus, some of the
provisions of the Great Charter which, at a casual glance, appear to be
correctly described as declaratory, are, in reality, innovations; while
others tend towards reaction.

III. _Provisions classified according to the estates of the community in
whose favour they were conceived._

This third principle of arrangement would stand condemned as completely
misleading, if it were necessary to accept as true, in any literal
sense, the assertions so frequently made concerning the absolute
equality of all classes and interests before the law—as that law was
embodied in Magna Carta. Here, then, we are face to face with a
fundamental question of immense importance: Does the Great Charter
really, as the orthodox traditional view so vehemently asserts, protect
the rights of the whole mass of humble Englishmen equally with those of
the proudest noble? Is it really a great bulwark of the constitutional
liberties of the nation, considered as a nation, in any broad sense of
that word? Or is it rather, in the main, a series of concessions to
feudal selfishness wrung from the King by a handful of powerful
aristocrats? On such questions, learned opinion is sharply divided,
although an overwhelming majority of authorities range themselves on the
popular side, from Coke (who assumes in every page of his _Second
Institute_ that the rights won in 1215 were as valuable for the villein
as for the baron) down to writers of the present day. Lord Chatham in
one of his great orations[199] insisted that the barons who wrested the
Charter from John established claims to the gratitude of posterity
because they “did not confine it to themselves alone, but delivered it
as a common blessing to the whole people”; and Sir Edward Creasy,[200]
in citing Chatham’s words with approval, caps them with more ecstatic
words of his own, declaring that one effect of the Charter was “to give
and to guarantee full protection for property and person to every human
being that breathes English air.” Lord Chatham indeed spoke with the
unrestrained enthusiasm of an orator; yet staid lawyers and historians
like Blackstone and Hallam seem to vie with him in similar expressions.
“An equal distribution of civil rights to all classes of freemen forms
the peculiar beauty of the charter”; so we are told by Hallam.[201]
Bishop Stubbs unequivocally enunciated the same doctrine. “Clause by
clause the rights of the commons are provided for as well as the rights
of the nobles.... This proves, if any proof were wanted, that the
demands of the barons were no selfish exactions of privilege for
themselves.”[202]

-----

Footnote 199:

House of Lords, 9th January, 1770.

Footnote 200:

_History of English Constitution_, 151.

Footnote 201:

_Middle Ages_, II. 447.

Footnote 202:

_Const. Hist._, I. 570-1.

-----

Dr. Gneist is of the same opinion. “Magna Carta was a pledge of
reconciliation between all classes. Its existence and ratification
maintained for centuries the notion of fundamental rights as applicable
to all classes in the consciousness that no liberties would be upheld by
the superior classes for any length of time, without guarantees of
personal liberties for the humble also.”[203]

-----

Footnote 203:

Gneist, _Hist. of Engl. Parl._ (trans. by A. H. Keane), 103. Cf. his
_Const. Hist._ (trans. by P. A. Ashworth), 253. “A separate right for
nobles, citizens, and peasants, was no longer possible.”

“The rights which the barons claimed for themselves,” says John Richard
Green,[204] before proceeding to enumerate them, “they claimed for the
nation at large.” The testimony of a very recent writer, Dr. Hannis
Taylor,[205] may close this series. “As all three orders participated
equally in its fruits, the great act at Runnymede was in the fullest
sense of the term a national act, and not a mere act of the baronage on
behalf of their own special privileges.” It would be easy to add to this
“cloud of witnesses,” but enough has been said to prove that it has been
a common boast of Englishmen, for many centuries, that the provisions of
the Great Charter were intended to secure, and did secure, the liberties
of every class and individual of the nation, not merely those of the
feudal magnates on whose initiative the quarrel was raised.

-----

Footnote 204:

_Short History of the English People_, 124.

Footnote 205:

_English Constitution_, I. 380.

-----

It must not be forgotten, however, that the truth of historical
questions does not depend on the counting of votes, or the weight of
authority; nor that a vigorous minority has always protested on the
other side. “It has been lately the fashion,” Hallam confesses, “to
depreciate the value of Magna Charta, as if it had sprung from the
private ambition of a few selfish barons, and redressed only some feudal
abuses.”[206] It is not safe to accept, without a careful consideration
of the evidence, the opinions cited even from such high authorities.
“Equality” is essentially a modern ideal: in 1215, the various estates
of the realm may have set out on the journey which was ultimately to
lead them to this conception, but they had not yet reached their goal.
For many centuries after the thirteenth, class legislation maintained
its prominent place on the Statute Rolls, and the interests of the
various classes were by no means always identical.

-----

Footnote 206:

_Middle Ages_, II. 447. See, _e.g._ Robert Brady, _A Full and Clear
Answer_ (1683).

-----

Two different parts of the Charter have a bearing on this question;
namely, chapter 1, which explains to whom the rights were granted, and
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_.
Chapter 44 mentions _homines_ without any qualification. It seems safe
to infer that the Great Charter never spoke of “freemen” when it meant
to include the ordinary peasantry or villagers. In chapter 39 of the
re-issue of 1217, _liber homo_ is clearly used as synonymous with
“freeholder.”

-----

To the question, who had authority to enforce its provisions, the Great
Charter has likewise a clear answer, namely, a select band or
quasi-committee of twenty-five barons. Although the Mayor of London was
chosen among their number, it is clear that no strong support for any
democratic interpretation of Magna Carta can be founded on the choice of
executors; since these formed a distinctly aristocratic body. Yet this
tendency to vest power exclusively in an oligarchy composed of the heads
of great families may have been counteracted, so it is possible to
contend, by the invitation extended by the same chapter to the _communa
totius terrae_ to assist the twenty-five Executors against the King in
the event of his breaking faith. Unfortunately, the extreme vagueness of
the phrase makes it rash in a high degree to build conclusions on such
foundations. It is possible to interpret the words _communa totius
terrae_ as applying merely to “the community of freeholders of the
land,” or even to “the community of barons of the land,” as well as to
“the community of all the estates (including churchmen, merchants, and
commons) of the land,” as is usually done on no authority save
conjecture. Every body of men was known in the thirteenth century as a
_communa_; a word of exceedingly loose connotation.

So far, our investigations by no means prove that the equality of all
classes, or the equal participation by all in the privileges of the
Charter, was an ideal, consciously or unconsciously, held by the leaders
of the revolt against King John. Magna Carta itself contains evidences
which point the other way, namely, to the existence of class
legislation. At the beginning and end of the Charter, clauses are
carefully inserted to secure to the Church its “freedom” and privileges;
churchmen, in their special interests, must be safeguarded, whoever else
may suffer. “Benefit of clergy,” thus secured, implies the very opposite
of “equality before the law.” Other interests also receive separate and
privileged treatment. Many, perhaps most, of the chapters have no value
except to landowners; a few affect tradesmen and townsmen exclusively,
while chapters 20 to 22 adopt distinct sets of rules for the amercement
of the ordinary freeman, the churchman, and the earl or baron
respectively—an anticipation, almost, of the later division into the
three estates of the realm—commons, clergy, and lords temporal. A
careful distinction is occasionally made (for example, in chapter 20)
between the freeman and the villein, and the latter (as will be proved
later on) was carefully excluded from many of the benefits conferred on
others by Magna Carta. In this connection, it is interesting to consider
how each separate class would have been affected if John’s promises had
been loyally kept.

(1) _The Feudal Aristocracy._ Even a casual glance at the clauses of the
Great Charter shows how prominently abuses of feudal rights and
obligations bulked in the eyes of its promoters. Provisions of this type
must be considered chiefly as concessions to the feudal
aristocracy—although it is true that the relief primarily intended for
them indirectly benefited other classes as well.

(2) _Churchmen._ The position of the Church is easily understood when we
neglect the privileges enjoyed by its great men _quâ_ barons rather than
_quâ_ prelates. The special Church clauses found no place whatsoever in
the Articles of the Barons, but bear every appearance of having been
tacked on as an after-thought, due probably to the influence of Stephen
Langton.[209] Further, they are mainly confirmatory of the separate
Charter already twice granted within the few preceding months. The
National Church indeed, with all its patriotism, had been careful to
secure its own selfish advantage before the political crisis arrived.

-----

Footnote 209:

Cf. _supra_, p. 50.

-----

(3) _Tenants of Mesne Lords._ When raising troops with the object of
compelling John to grant Magna Carta by parade of armed might, the
barons were perforce obliged to rely on the loyal support of their own
freeholders. It was essential that the knights and others who held under
them should be ready to fight for their mesne lords rather than for the
King their lord paramount. It was thus absolutely necessary that these
under-tenants should receive some recognition of their claims in the
provisions of the final settlement. Concessions conceived in their
favour are contained in two clauses (couched apparently in no specially
generous spirit), namely, chapters 15 and 60. The former limits the
number of occasions on which aids might be extorted from sub-tenants by
their mesne lords to the same three as were recognized in the case of
the Crown. Less than this the barons could scarcely have granted.
Chapter 60 provides generally, in vague words, that all the customs and
liberties which John agrees to observe towards his vassals shall be also
observed by mesne lords, whether prelates or laymen, towards their
sub-vassals. This provision has met with a chorus of applause from
modern writers. Prof. Prothero declares[210] that “the sub-tenant was in
all cases as scrupulously protected as the tenant-in-chief.” Dr. Hannis
Taylor[211] is even more enthusiastic. “Animated by a broad spirit of
generous patriotism, the barons stipulated in the treaty that every
limitation imposed for their protection upon the feudal rights of the
king should also be imposed upon their rights as mesne lords in favour
of the under-tenants who held of them.”[212] It must, however, be
remembered that a vague general clause affords less protection than a
definite specific privilege; and that in a rude age such a general
declaration of principle might readily be infringed when occasion arose.
The barons were compelled to do something, or to pretend to do
something, for their under-tenants. Apparently they did as little as
they, with safety or decency, could.

-----

Footnote 210:

_S. de Montfort_, 17.

Footnote 211:

_English Constitution_, I. 383.

Footnote 212:

Bishop Stubbs, Preface to _W. Coventry_, II. lxxii., represents the
barons, in their fervour for abstract law, as actually supporting
their own vassals against themselves: “the barons of Runnymede guard
the people against themselves as well as against the common tyrant.”

-----

(4) Something was also done for the _merchant and trading classes_, but,
when we subtract what has been read into the Charter by democratic
enthusiasts of later ages, not so much as might reasonably be expected
in a truly national document. The existing privileges of the great city
of London were confirmed, without specification, in the Articles of the
Barons; and some slight reforms in favour of its citizens (not too
definitely worded) were then added. An attentive examination seems to
suggest, however, that these privileges were carefully refined away when
the Articles were reduced to their final form in Magna Carta. The right
to tallage London and other towns was carefully reserved to the Crown,
while the rights of free trading granted to foreigners were clearly
inconsistent with the policy of monopoly and protection dear to the
hearts of the Londoners. A mere confirmation to the citizens of existing
customs, already bought and paid for at a great price, seems but a poor
return for the support given by them to the movement of insurrection at
a critical moment when John was bidding high on the opposite side, and
when their adherence was sufficient to turn the scale. The marvel is
that so little was done for them.[213]

-----

Footnote 213:

For details, see _infra_ under cc. 12, 13, 35, and 41. It is
instructive to compare these chapters with the corresponding
provisions of the Articles of the Barons (viz. articles 32, 12, and
31). The alterations (though slight) seem to show that some new
influence affecting only the later document was inimical to the towns.

-----

(5) The relation of the _villein_ to the benefits of the Charter has
been hotly discussed. Coke claims for him, in regard to the important
provisions of chapter 39 at least, that he must be regarded as a _liber
homo_, and therefore as a full participant in all the advantages of the
clause.[214] This contention is not well founded. Even admitting the
relativity of the word _liber_ in the thirteenth century, and admitting
also that the villein performed some of the duties, if he enjoyed none
of the rights of the free-born, still the formal description _liber
homo_, when used in a feudal charter, cannot be stretched to cover those
useful manorial chattels that had no recognized place in the feudal
scheme of society or in the political constitution of England, however
necessary they might be in the scheme of the particular manor to the
soil of which they were attached.

-----

Footnote 214:

See Coke, _Second Institute_, p. 45, “for they are free against all
men, saving against their lord.”

-----

Even if we exclude the villein from the general benefits of the grant,
it may be, and has been, maintained that some few privileges were
insured to him in his own name. One clause at least is specially framed
for his protection. The villein, so it is provided in chapter 21, must
not be so cruelly amerced as to leave him utterly destitute; his plough
and its equipment must be saved to him. Such concessions, however, are
quite consistent with a denial of all _political_ rights, and even of
all _civil_ rights, as these are understood in a modern age. The Crown
and the magnates, so it may be urged, were only consulting their own
interests when they left the villein the means to carry on his farming
operations, and so to pay off the balance of his debts in the future.
The closeness of his bond to the lord of his manor made it impossible to
crush the one without slightly injuring the other. The villein was
protected, not as the acknowledged subject of legal rights, but because
he formed a valuable asset of his lord. This attitude is illustrated by
a somewhat peculiar expression used in chapter 4, which prohibited
injury to the estate of a ward by “waste of men or things.” For a
guardian to raise a villein to the status of a freeman was to benefit
the enfranchised peasant at the expense of his young master.[215]

-----

Footnote 215:

Cf. under c. 4 _infra_.

-----

Other clauses both of John’s Charter and of the various re-issues show
scrupulous care to avoid infringing the rights of property enjoyed by
manorial lords over their villeins. The King could not amerce other
people’s villeins harshly, although those on his own farms might be
amerced at his discretion. Chapter 16, while carefully prohibiting any
arbitrary increase of service from freehold property, leaves by
inference all villein holdings unprotected. Then the “farms” or rents of
ancient demesne might be arbitrarily raised by the Crown,[216] and
tallages might be arbitrarily taken (measures likely to press hardly on
the villein class). The villein was deliberately left exposed to the
worst forms of purveyance, from which chapters 28 and 30 rescued his
betters. The horses and implements of the _villanus_ were still at the
mercy of the Crown’s purveyors. The re-issue of 1217 confirms this view;
while demesne waggons were protected, those of villeins were left
exposed.[217] Again, the chapter which takes the place of the famous
chapter 39 of 1215[218] makes it clear that lands held in villeinage are
not to be protected from arbitrary disseisin or dispossession. The
villein was left by the common law merely a tenant-at-will—subject to
arbitrary ejectment by his lord—whatever meagre measure of protection he
might obtain under the “custom of the manor” as interpreted by the court
of the lord who oppressed him.

-----

Footnote 216:

See under c. 25 _infra_.

Footnote 217:

See chapter 26 of 1217.

Footnote 218:

See chapter 35 of 1217.

Even if it were possible to neglect the significance of any one of these
somewhat trivial points, when all of them are placed side by side their
meaning is clear. If the bulk of the English peasantry were protected at
all by Magna Carta that was merely because they formed valuable assets
of their lords. The Charter viewed them as "villeins regardant"—as
chattels attached to a manor, not as members of an English
commonwealth.[219]

-----

Footnote 219:

Dr. Stubbs takes an entirely different view. While admitting that
there is “so little notice of the villeins in the charter,” he
explains the omission apparently on two distinct grounds, (1) that
they had fewer grievances to redress than members of other classes,
and (2) that they participated in all the grants from which they were
not specially excluded. “It was not that they had no spokesman, but
that they were free from the more pressing grievances, and benefited
from every general provision.” Preface to _W. Coventry_, II., lxxiii.

-----

The general conclusion to be derived from this survey is that, while
much praise may be due to the baronial leaders for their comparatively
liberal interest in the rights of others, they are scarcely entitled to
the excessive laudation they have sometimes received. The rude
beginnings of many features which have since come into prominence in
English institutions (such as the conceptions of patriotism and
nationality and the principles of equality before the law and the tender
regard for the rights of the humble) may possibly be found in the germ
in some parts of the completed Charter; but the Articles of the Barons
were what their name implies, a baronial manifesto, seeking chiefly to
redress the private grievances of the promoters, and mainly selfish in
motive.

Yet, when all deductions have been made (and it has seemed necessary to
do this with emphasis in order to redress the false balance created by
the exaggerations of enthusiasts), the Great Charter still stands out as
a prominent landmark in the sequence of events which have led, in an
unbroken chain, to the consolidation of the English nation, and to the
establishment of a free and constitutional form of polity upon a basis
so enduring that, after more than eight centuries of growth, it still
retains the vigour and the buoyancy of youth.

IV. Magna Carta: an Estimate of its Value.

No evidence survives to show that the men of John’s reign placed any
excessive or exaggerated importance on the Great Charter; but, without a
break since then, the estimate of its worth steadily increased until it
came to be regarded almost as a fetish among English lawyers and
historians. No estimate of its value can be too high, and no words too
emphatic or glowing to satisfy its votaries. In many a time of national
crisis, Magna Carta 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.

Are these estimates of its value justified by facts, or are they gross
exaggerations? Did it really create an epoch in English history? If so,
wherein did its importance exactly lie?

The numerous factors which contributed towards the worth of Magna Carta
may be distinguished as of two kinds, intrinsic and extrinsic. (1) Its
intrinsic value depends on the nature of its own provisions. The reforms
demanded by the barons and granted by this Charter were just and
moderate. The avoidance of all extremes tended towards a permanent
settlement, since moderation both gains and keeps adherents. Its aims
were practical as well as moderate; the language in which they were
framed, clear and straightforward. A high authority has described the
Charter as “an intensely practical document.”[220] This _practicality_
is an essentially English characteristic, and strikes the key-note of
almost every great movement for reform which has held a permanent place
in English history. Closely connected with this feature is another—the
essentially _legal_ nature of the whole. As Magna Carta was rarely
absent from the minds of subsequent opponents of despotism, a practical
and legal direction was thus given to the efforts of Englishmen in many
ages.[221] Therein lies another English characteristic. While democratic
enthusiasts in France and America have often sought to found their
rights and liberties on a lofty but unstable basis of philosophical
theory embodied in Declarations of Rights; Englishmen have occupied
lower but surer ground, aiming at practical remedies for actual wrongs,
rather than enunciating theoretical platitudes with no realities to
correspond.

-----

Footnote 220:

Prof. F. W. Maitland, _Social England_, I., 409.

Footnote 221:

Cf. Gneist, _Const. Hist._, Chapter XVIII.: “By Magna Carta English
history irrevocably took the direction of securing constitutional
liberty by administrative law.”

-----

Another intrinsic merit of the Charter was that it made definite what
had been vague before. Definition is a valuable protection for the weak
against the strong; whereas vagueness increases the powers of the tyrant
who can interpret while he enforces the law. Misty rights were now
reduced to a tangible form, and could no longer be broken with so great
impunity. Magna Carta contained no crude innovations, and confirmed many
principles whose value was enhanced by their antiquity. King John, in
recognising parts of the old Anglo-Saxon customary law, put himself in
touch with national traditions and the past history of the nation.

Further, the nature of the provisions bears witness to the broad basis
on which the settlement was intended to be built. The Charter,
notwithstanding the prominence given to redress of feudal grievances,
redressed other grievances as well. In this, the influence of the Church
and notably of its Primate, can be traced. Some little attention was
given to the rights of the under-tenants also, and even to those of the
merchants, while the villein and the alien were not left entirely
unprotected. Thus the settlement contained in the Charter had a broad
basis in the affection of all classes.

(2) Part of the value of Magna Carta may be traced to extrinsic causes;
to the circumstances which gave it birth—to its vivid historical
setting. The importance of each one of its provisions is emphasized by
the object-lessons which accompanied its inauguration. The whole of
Christendom was amazed by the spectacle of the King of a great nation
obliged to surrender at discretion to his own subjects, and that, too,
after he had scornfully rejected all suggestions of a compromise. The
fact that John was compelled to accept the Charter meant a loss of royal
prestige, and also great encouragement to future rebels. What once had
happened, might happen again; and the humiliation of the King was
stamped as a powerful image on the minds of future generations.

Such considerations almost justify enthusiasts, who hold that the
granting of Magna Carta was the turning-point in English history.
Henceforward it was more difficult for the king to invade the rights of
others. Where previously the vagueness of the law lent itself to
evasion, its clear re-statement and ratification in 1215 pinned down the
king to a definite issue. He could no longer plead that he sinned in
ignorance; he must either keep the law, or openly defy it—no middle
course was possible.

When all this has been said, it may still be doubted whether the belief
of enthusiasts in the excessive importance of Magna Carta has been fully
justified. Many other triumphs, almost equally important, have been won
in the cause of liberty, and under circumstances almost equally notable;
and many statutes have been passed embodying these. Why then should
Magna Carta be invariably extolled as the palladium of English
liberties? Is not, when all is said, the extreme merit attributed to it
mainly of a sentimental or imaginative nature? Such questions must be
answered partly in the affirmative. Much of its value _does_ depend on
sentiment. Yet all government is, in a sense, founded upon
sentiment—sometimes affection, sometimes fear. Psychological
considerations are all-powerful in the practical affairs of life.
Intangible and even unreal phenomena have played an important part in
the history of every nation. The tie that binds the British colonies at
the present day to the Mother Country is largely one of sentiment; yet
the troopers from Canada and New Zealand who responded to the call of
Britain in her hour of need produced practical results of an obvious
nature. The element of sentiment in politics can never be ignored.

It is no disparagement to Magna Carta, then, to confess that part of its
power has been read into it by later generations, and lies in the halo,
almost of romance, which has gradually gathered round it in the course
of centuries. It became a battle cry for future ages, a banner, a
rallying point, a stimulus to the imagination. For a king, thereafter,
openly to infringe the promises contained in the Great Charter, was to
challenge the bitterness of public opinion—to put himself palpably in
the wrong. For an aggrieved man, however humble, to base his rights upon
its terms was to enlist the warm sympathy of all. Time and again, from
the Barons’ War against Henry III. to the days of John Hampden and
Oliver Cromwell, the possibility of appealing to the words of Magna
Carta has afforded a practical ground for opposition; an easily
intelligible principle to fight for; a fortified position to hold
against the enemies of the national freedom. The exact way in which this
particular document—dry as its details at first sight may seem—has, when
considered as a whole, fired the popular imagination, is difficult to
determine. Such a task lies rather within the sphere of the student of
psychology than of the student of history, as usually conceived. However
difficult it may be to explain this phenomenon, there is no doubt of its
existence. The importance of the Great Charter, originally flowing both
from the intrinsic and from the extrinsic features already described,
has greatly increased, as traditions, associations, and aspirations have
clustered more thickly round it. These have augmented in each succeeding
age the reverence in which it has been held, and have made ever more
secure its hold upon the popular imagination.

Thus Magna Carta, in addition to its legal value, has a political value
of an equally emphatic kind. Apart from and beyond the salutary effect
of the many useful laws it contained, its moral influence has
contributed to a marked advance of the national spirit, and therefore of
the national liberties. A few of the aspects of this advance deserve to
be emphasized. The King, by granting the Charter in solemn form,
admitted that he was not an absolute ruler—admitted that he had a master
over him in the laws which he had often violated, but which he now swore
to obey. Magna Carta has thus been truly said to enunciate and
inaugurate “the reign of law” or “the rule of law” in the phrase made
famous by Professor Dicey.[222]

-----

Footnote 222:

A. V. Dicey, _Law of the Constitution_, Part II.

-----

It marks also the commencement of a new grouping of political forces in
England; indeed without such a rearrangement the winning of the Charter
would have been impossible. Throughout the reign of Richard I. the old
tacit understanding between the king and the lower classes had been
endangered by the heavy drain of taxation; but the actual break-up of
the old alliance only came in the crisis of John’s reign. Henceforward
can be traced a gradual change in the balance of parties in the
commonwealth. No longer are Crown and people united, in the name of law
and order, against the baronage, standing for feudal disintegration. The
mass of humble freemen and the Church are for the moment in league with
the barons, in the name of law and order, against the Crown, recently
become the chief law-breaker.

The possibility of the existence of such an alliance, even on a
temporary basis, involved the adoption by its chief members of a new
baronial policy. Hitherto each great baron had aimed at his own
independence or aggrandisement, striving on the one hand to gain new
franchises for himself, or to widen the scope of those he already had,
and on the other to weaken the king and to keep him outside these
franchises. This policy, which succeeded both in France and in Scotland,
had before John’s reign already failed signally in England, and the
English barons now, on the whole, came to admit the hopelessness of
renewing the struggle for feudal independence. They substituted for this
ideal of an earlier age a more progressive policy. The king, whose
interference they could no longer hope completely to shake off, must at
least be taught to interfere justly and according to rule; he must walk
only by law and custom, not by the caprices of his evil heart. The
barons sought henceforward, to control the royal power they could not
exclude; they desired some determining share in the national councils,
if they could no longer hope to create little nations of their own
within the four corners of their fiefs. Magna Carta was the fruit of
this new policy.

It has been often repeated, and with truth, that the Great Charter marks
also a stage in the growth of national unity or nationality. Here,
however, it is necessary to guard against exaggeration. It is merely one
movement in a process, rather than a final achievement. We must somewhat
discount, while still agreeing in the main with, statements which
declare the Charter to be “the first documentary proof of the existence
of a united English nation”; or with the often-quoted words of Dr.
Stubbs, that “The Great Charter is the first great public act of the
nation, after it has realised its own identity.”[223]

-----

Footnote 223:

_Const. Hist._, I. 571. Cf. _Ibid._, I. 583, “The act of the united
nation, the church, the barons, and the commons, for the first time
thoroughly at one.” Who were “the commons” in 1215? The question is a
difficult one to answer. Cf. also Mr. Prothero, _Simon de Montfort_,
18, “The spirit of nationality of which the chief portion of Magna
Carta was at once the product and the seal.”

-----

A united English nation, whether conscious or unconscious of its
identity, cannot be said to have existed in 1215, except under several
qualifications. The conception of “nationality,” in the modern sense, is
of comparatively recent origin, and requires that the lower as well as
the higher classes should be comprehended within its bounds. Further,
the coalition which wrested the Charter from the royal tyrant was
essentially of a temporary nature, and quickly fell to pieces again.
Even while the alliance continued, the interests of the various classes,
as has been already shown, were far from identical. Political rights
were treated as the monopoly of the few (as is evidenced by the
retrograde provisions of chapter 14 for the composition of the _Commune
concilium_); and civil rights were far from universally distributed. The
leaders of the “national” movement certainly gave no _political_ rights
to the despised villeins, who comprised more than three quarters of the
entire population of England; while their _civil_ rights were almost
completely ignored in the provisions of the Charter.

Magna Carta undoubtedly marked one step, an important step, in the
process by which England became a nation; but that step was neither the
first nor yet the final one.

V. Magna Carta. Its defects.

The great weakness of the Charter lay in this, that no adequate sanction
was attached to it, in order to ensure the enforcement of its
provisions. The only expedient suggested for compelling the King to keep
his promises was of a nature at once clumsy and revolutionary, and
entirely worthless considered as a working scheme of government. Indeed,
it was devised not so much to prevent the King from breaking faith as to
punish him when he had done so. In other words, no proper constitutional
machinery was invented to turn the legal theories of Magna Carta into
practical realities. In its absence, we find what has sometimes been
described as “a right of legalized rebellion” conferred on an executive
committee of twenty-five of the King’s enemies.

This is the chief defect, but not the only one. Many minor faults and
omissions may be traced to a similar root. All the great constitutional
principles are in reality conspicuously absent. The importance of a
council or embryo parliament, constituted on truly national lines (of
which some glimmerings can be traced in 1213); the right of such a body
to influence the King’s policy in normal times as well as in times of
crisis; the doctrine of ministerial responsibility (already dimly
foreshadowed in the reign of Richard); the need of distinguishing the
various functions of government, legislative, judicial, and
administrative—all these cardinal principles are completely ignored by
the Charter. Not one of its many clauses affords evidence that the
statesmen of the day had any conception, even of a rudimentary nature,
of the principles of political science.

Only five of the sixty-three chapters can be said to bear directly on
the subject of constitutional (as opposed to purely legal) machinery,
and most of these do so only incidentally, namely, chapters 14, 21, 39,
61, and 62.

The _Commune Concilium_ is indeed mentioned; and its composition and
mode of summons are clearly defined in chapter 14. But it must be
remembered that this chapter appears as a mere afterthought,—as an
appendix to chapter 12; its incidental nature is proved by the fact that
it has no counterpart in the Articles of the Barons. The rebel magnates
were vitally interested in the narrow question of scutage, not in the
wide possibilities involved in the existence of a national council. The
_Commune Concilium_ was dragged into the Charter, not on its own merits,
but merely as a convenient method of preventing the arbitrary increase
of feudal exactions. That this was so, is further proved by the fact
that both parties were content to omit all mention of the Council from
the re-issue of 1217, when an alternative way of checking the arbitrary
increase of scutage had been devised.

If the framers of John’s Magna Carta had possessed any grasp of
constitutional principles, they would gladly have seized the opportunity
afforded them by the mention, however incidentally, of the Common
Council, in chapters 12 and 14, in order to define most carefully the
powers which they claimed for it. On the contrary, no list of its
functions is drawn up; nor do the words of the Charter contain anything
to suggest that it exercised any powers other than that of consenting to
scutages and aids. Not a word is said of any right inherent in the
Council to a share in legislation, to control or even to advise the
Executive, or to concur in choosing the great ministers of the Crown.
Neither deliberative, administrative, nor legislative powers are secured
to it, while its control over taxation is strictly limited to the right
to veto scutages and aids—that is say, it only extends over that very
narrow class of exactions which affected the military tenants of the
Crown. It is true that chapters 21 and 39 may possibly be read
confirming the _judicial_ power of the Council in a certain limited
group of cases. Earls and barons are not to be amerced except by their
peers (_per pares suos_), and the natural place for these “equals” of a
Crown vassal to assemble for this purpose would be the _Commune
Concilium_. This, however, is merely matter of inference; chapter 21
makes no mention of the Council; and it is equally possible that its
requirements would be met by the presence among the officials of the
Exchequer of a few Crown tenants.[224] Similar reasoning applies to the
provisions of chapter 39 (protecting the persons and property of
freemen, by insisting on the necessity of a “trial by peers”) so far as
they affect earls and barons.

-----

Footnote 224:

This is the view of Mr. L. O. Pike, _House of Lords_, 204.

-----

It is clear that the leaders of the opposition in 1215 did not consider
the constitutional powers of a national Parliament the best safeguard of
the rights and liberties theoretically guaranteed by the Charter. Only
one practical or constitutional expedient seems to have occurred to
them, namely, that embodied in chapter 61. Twenty-five barons were to be
appointed by their fellow-barons to act as Executors of the Charter; but
their functions were apparently only to be called into play in the event
of King John or his officers breaking any of the provisions of the
Charter. If this occurred, intimation might be made to a smaller
sub-committee of four, chosen from the twenty-five, and these four would
straightway ask the King to redress the grievance complained of. If this
was not done within forty days, John granted to the Committee of
twenty-five, assisted by “the whole community of the realm,” the right
practically to make war upon him. He conferred on them in the most
explicit terms full power “to distrain and distress us in all possible
ways, by seizing our castles, lands, possessions, and in any other way
they can, until the grievances are redressed according to their
pleasure.”

Such a provision can hardly be described as constitutional, since it is
rather the negation of all constitutional principles—nothing more nor
less than legalized rebellion. Provision is made not for the orderly
conduct of government, but rather to provide an organization for making
war upon the king in certain abnormal circumstances which are defined.
Such a scheme was clearly impracticable, and the fact that it
recommended itself as a possible expedient to the barons speaks
eloquently of their complete ignorance of the most elementary principles
of the science of government. Civil war levied on a warrant granted
beforehand by the king is treated as a constitutional expedient for the
redress of particular grievances as they arise.[225]

-----

Footnote 225:

Details of this scheme, and a fuller discussion of its defects will be
found _infra_ under chapter 61.

-----

The same inability to devise practical remedies for specific evils may
be traced in several minor clauses of the Charter.[226] When John
promised in chapter 16 that no one should be compelled to do greater
service than had been formerly due from any holding, no attempt was
made, in case of dispute, to provide constitutional machinery to define
what such service actually was; while chapter 45, providing that only
men who knew the law, and meant to keep it, should be made justiciars,
sheriffs or bailiffs, laid down no criterion of fitness, and contained
no suggestion of any way in which so laudable an ambition might be
realized.

-----

Footnote 226:

Magna Carta has been described, in words already quoted with approval,
as “an intensely practical document,” Professor Maitland, _Social
England_, I. 409; but this requires some qualification. If it was
practical in preferring the condemnation of definite practical
grievances to the enunciation of philosophical principles, it was
unpractical in omitting to provide machinery for giving effect to its
provisions.

-----

Thoughtful and statesmanlike as were the provisions of Magna Carta, and
wide as was the ground they covered, many important omissions can be
pointed out. Some crucial questions seem not to have been foreseen, and
others, for example the liability to foreign service, were deliberately
shelved[227]—thus leaving room for future misunderstandings. The praise,
justly earned, by its framers for the care and precision with which they
defined a long list of the more crying abuses, must be qualified in view
of the failure to provide procedure to prevent their recurrence. Men had
not yet learned the force of the maxim, so closely identified with all
later reform movements in England, that a right is valueless without an
appropriate remedy to enforce it.[228]

-----

Footnote 227:

Except in so far as affected by cc. 12 and 16.

Footnote 228:

Mr. Prothero estimates much more highly the constitutional value of
Magna Carta: "The constitutional struggles of the following
half-century would to a great extent have been anticipated had it
retained its original form."—_Simon de Montfort_, 14.

-----

VI. Magna Carta: Value of Traditional Interpretations.

The Great Charter has formed a favourite theme for orators and
politicians in all periods of English history, partly because of its
intrinsic merit, partly because of the dramatic background of its
historical setting, but chiefly because it has been, from the time of
its inception down to the present day, a rallying cry and a protecting
bulwark in every crisis which threatened to endanger the national
liberties.

The uses to which it has been put, and the interpretations which have
been read into it, are so numerous and so varied, that they would
require a separate treatise to do them justice. Not only was Magna
Carta, as will be shown in some detail in a later section, frequently
reissued and confirmed, but its provisions have been asserted and
re-asserted time after time, in Parliament, in the courts of justice,
and in institutional works on jurisprudence. Its influence has thus been
threefold; and any attempt to explain its bearing on the subsequent
history of English liberties would require to distinguish between these
three separate and equally important aspects. (1) It has supplied a
powerful instrument in the hands of politicians, especially of the
leaders of the House of Commons in the seventeenth century, when waging
the battle of constitutional freedom against the Stewart dynasty. (2)
Its legal aspect has been as important as its political one, since it
has been cited in innumerable litigations before the various courts of
law. In the course of legal debate and of judicial opinions, it has been
the subject of many and conflicting interpretations, some of them
accurate and some erroneous. (3) Finally, it has been discussed in many
commentaries either exclusively devoted to its elucidation or else
treating of it incidentally in the course of general expositions of the
law of England.

An exhaustive search throughout the seven centuries which separate us
from 1215 for instances in which Magna Carta has appeared in the arena
of politics, on the judicial bench, or in legal treatises would prove a
gigantic task, but could hardly fail to illustrate the inestimable
services it has rendered to English liberties.

In the light of the important part which Magna Carta has thus played
throughout many centuries of English history, it need not excite wonder
that the estimation in which it was held, high as that was from a very
early period, has gradually increased, until it has overstepped all due
bounds, and has become utterly exaggerated and distorted. While some
sympathy may be felt for such extravagant admiration, not unnatural in
the circumstances, it is clearly the duty of the commentator to correct
false impressions. It is well to point out that no document of human
origin can be really worthy of the excessive eulogy of which the Great
Charter has been made the subject; unfortunately, it has more frequently
been described in terms of inflated rhetoric than of sober methodical
analysis.[229]

-----

Footnote 229:

Extravagant estimates of its value will readily occur to anyone
acquainted with the literature of the subject. For example, Sir James
Mackintosh (_History of England_, I. 218, edn. of 1853) declares that
we are “bound to speak with reverential gratitude of the authors of
the Great Charter. To have produced it, to have preserved it, to have
matured it, constitute the immortal claim of England upon the esteem
of mankind. Her Bacons and Shakespeares, her Miltons and Newtons,
etc., etc.” Such uncritical eulogy contributes nothing to the
understanding of Magna Carta.

Nor has this tendency to unthinking adulation been entirely confined to
popular writers; judges and institutional authors, even Sir Edward Coke
himself, have too often lost the faculty of critical and exact
scholarship when confronted with the virtues of the Great Charter. There
is scarcely one great principle of the English constitution of the
present day, or indeed of any constitution in any day, calculated to
secure national liberties, or otherwise to win the esteem of mankind,
which has not been read by commentators into the provisions of Magna
Carta. In particular, the political leaders of the seventeenth and
eighteenth centuries discovered among its chapters every important
reform which they desired to introduce into England, thereby disguising
the revolutionary nature of many of their projects by dressing them in
the garb of the past.

Many instances of the constitutional principles and institutions, with
the origin of which successive commentators have erroneously credited
the Great Charter, will be expounded under the appropriate chapters of
the sequel. It will be sufficient in the meantime to enumerate trial by
jury; the right of every prisoner to obtain a writ of Habeas Corpus; the
abolition of all arbitrary imprisonment at the king’s command; the
complete prohibition of monopolies; the enunciation of a close and
indissoluble tie between taxation and representation; equality of all
and sundry before the law; a matured conception of nationality,
embracing high and low, freeman and villein alike: all these, and more,
have been discovered in various clauses of the Great Charter.[230]

-----

Footnote 230:

Edmund Burke (_Works_, II. 53, edn. of 1837, Boston) credits Magna
Carta with creating the House of Commons! “Magna Charta, if it did not
give us originally the House of Commons, gave us at least a House of
Commons of weight and consequence.” As will be shown in the sequel,
chapter 14 of the Great Charter (the only one bearing on the subject)
is in reality of a reactionary nature, confining the right of
attendance at the _commune concilium_ to the freeholders of the Crown
and departing from the precedent of two years earlier, which
introduced representatives of each county.

If these tendencies to excessive and sometimes ignorant praise have been
unfortunate from one point of view, they have been most fortunate from
another. The legal and political aspects must be sharply contrasted. On
the one hand, the vague and inaccurate words used in speaking of the
Charter even by great lawyers, such as Coke (not necessarily equally
great as historians, living as they did in an age when the science of
history was unknown), have not only obscured the bearing of many
chapters, but have done a distinct injury to the study of the
development of English law. On the other hand, as the mistakes made in
commenting on the Charter have been almost entirely due to a laudable
desire to extend as widely as possible its provisions in favour of
individual and national liberties, and to magnify generally its
importance; the service these very errors have done to the cause of
constitutional progress is measureless. If political bias has coloured
the interpretation placed on many of the most famous clauses, the
ensuing benefit has accrued not to any one narrow party or faction, not
to any separate class or interest, but rather to the entire body politic
and to the cause of national progress in its widest and best
developments.

Thus the historian of Magna Carta, while bound to correct estimates now
seen to be erroneous in the light of modern research, cannot afford to
despise or under-estimate the value of traditional interpretations. The
meanings which have been read into it by the learned men of later ages,
and which have been acquiesced in by public opinion of the day, have had
an equally potent effect whether they were historically well founded or
ill founded. The stigma of being banned by the Great Charter was usually
too great a burden for any institution or line of policy to bear. If the
belief prevailed that an abuse complained of was really prohibited by
Magna Carta, the most arbitrary king had difficulty in finding judges
who would declare it legal, or trustworthy ministers who would persevere
in enforcing it. The prevalence of such a belief was the main point;
whether it was well or ill founded was, for political purposes, quite
immaterial. The greatness of Magna Carta lies not so much in what it was
to its framers in 1215, as in what it afterwards became to the political
leaders, to the judges and lawyers, and to the entire mass of the men of
England in later ages.

VII. Magna Carta. Its traditional relation to Trial by Jury.

One persistent error, universally adopted for many centuries, and even
now hard to dispel, is that the Great Charter granted or guaranteed
trial by jury.[231] This belief, however, which has endured so long and
played so prominent a part in political theory, is now held by all
competent authorities to be entirely unfounded. Not one of the three
forms of a modern jury trial had taken definite shape in 1215, although
the root principle from which all three subsequently grew had been in
constant use since the Norman Conquest. Henry II., indeed, had done much
towards developing existing tendencies in the direction of all three of
its forms, namely, of the grand jury, the petty criminal jury, and the
jury of civil pleas.

-----

Footnote 231:

The source of this error was the identification of the _judicium
parium_ of chapter 39 with jury trial. This mistake is fully refuted
_infra_ under that chapter.

-----

Magna Carta, embodying as it does many of the innovations of Henry of
Anjou, necessarily contains indications of the existence of these
tendencies. Yet, as these occur incidentally in various provisions of
unconnected chapters, and as they cannot readily be recognized, on
account of the technical language in which they are usually couched and
the apparently trivial points of legal procedure to which they relate,
it seems well to preface the separate consideration of each of them
under its appropriate chapter, by a short account of their mutual
relations. This will conduce to a clear understanding alike of trial by
jury and of the Great Charter itself.

Jury trial in each of the three forms in which it is known to modern
English law is able to trace an unbroken pedigree (though by three
distinct lines of descent) from the same ancestor, namely, from that
principle known as _recognitio_ or _inquisitio_, which was introduced
into England by the Normans, and was simply the practice whereby the
Crown obtained information on local affairs from the sworn testimony of
local men. While thus postulating a foreign origin for this “palladium
of English liberties,” we are afforded consolation by the remembrance of
a fact which some modern authorities are too much inclined to neglect,
namely, that the soil was prepared by Anglo-Saxon labour for its
planting.[232]

-----

Footnote 232:

The theory now generally accepted that the origin of trial by jury
must be sought in procedure introduced by the Norman Dukes and not in
any form of popular Anglo-Saxon institutions is ably maintained by
Pollock and Maitland, I. 119, and by the late Professor J. B. Thayer,
_Evidence_, p. 7. Undoubtedly their conclusions are in the main
correct; but in their natural desire to remove misconceptions, they
are possibly guilty of some slight exaggeration. Trial by jury may
have had more than one root, and a full appreciation of the value of
the Norman contribution need not lead to the total neglect of the
Anglo-Saxon one. Accepted conclusions in this respect might profitably
be supplemented by the opinions of Dr. Hannis Taylor, _English
Constitution_, I. 308 and I. 323.

-----

The old English institution of the frithborh—the practice of binding
together little groups of neighbours for preservation of the peace—and
the custom of sending representatives of the villages to the Hundred
Courts, had alike accustomed the natives to corporate action and formed
in some sort precedents for what their Norman masters compelled them to
do, namely, to give their evidence on local matters jointly and on oath.
Further, one form of the jury—the jury of accusation—is clearly
foreshadowed (in spite of the complete breach of continuity in the
intervening period) by the directions given to the twelve senior thegns
of each Wapentake by a well-known law of Ethelred. Yet the credit of
establishing the jury system as a fundamental institution in England is
undoubtedly due to the Norman and Angevin kings, although they acted in
their own interests and not in those of their oppressed subjects, and
although they had no clear vision of the ultimate consequences of what
they did. The uses to which the _Inquisitio_ was put by William and his
sons in framing _Domesday Book_, collecting information about existing
laws, and dispensing justice, have already been discussed.[233]

-----

Footnote 233:

See _supra_, pp. 105-6.

-----

It was reserved for Henry II. to start the institution on a further
career of development; he it was who thus laid the foundations of the
modern jury system. Strangely enough, he did this not merely in one of
its forms, but in all three of them.

(1) In re-organizing machinery for the suppression and punishment of
crime by the Assizes of Clarendon and Northampton, he established the
general principle that criminal trials should (in the normal case) begin
with formal indictment of the accused by a representative body of
neighbours sworn to speak the truth.[234] This was merely a systematic
enforcement of one of the many forms of _inquisitio_ already in use;
from that date onwards the practice so established has been followed in
England. Criminal prosecution cannot be begun on mere suspicion or
irresponsible complaints. The jury of accusation (or presentment) may be
said to have been instituted in 1166, and has continued in use ever
since, passing by an unbroken course of development into the grand jury
of the present day.[235]

-----

Footnote 234:

See Pollock and Maitland, I. 131. It was part of Henry’s policy to
substitute indictment by a representative jury for the older appeal by
the wronged individual or his surviving relatives. The older
procedure, however, was not completely abolished though looked upon
with disfavour. Its continuance and also its unpopularity may both be
traced in chapter 54 of Magna Carta. See _infra_.

Footnote 235:

Chapter 38 of Magna Carta, according to a plausible interpretation of
an admittedly obscure passage, seems to insist on the necessity of
such an accusation by the jury:—“_non ... sine testibus fidelibus ad
hoc inductis_.”

(2) By insisting that the ordeal was the only adequate test of an
accused man’s guilt or innocence, Henry unconsciously prepared the way
for a second form of jury. When the fourth Lateran Council in the very
year of Magna Carta forbade priests to countenance ordeal by their
presence or blessing, a death-blow was really dealt to that form of
procedure or “test,” since it depended for its authority on
superstition. A canon of the Church had thus suddenly struck away the
pivot on which Henry had made his entire criminal system to revolve.
Some substitute required urgently to be devised. It was to supply this
that the petty jury (or its rude antecedent) came into existence. The
man who had been publicly accused as _presumably_ guilty by the voice of
his neighbours, was asked if he was willing to stand or fall by a
further and final reference to the oath of a second jury of neighbours.
This second verdict, then, was the new “test” or “law” substituted, if
the accused man agreed, for his old right of proving himself innocent by
the ordeal. By obscure steps, on which those best entitled to speak with
authority are not yet agreed, this jury, giving a second and final
verdict, gradually developed into the criminal jury of twelve, the petty
jury of to-day, the characteristics of which are well known and which
has had so important an influence on the development of constitutional
liberties in England, and even, it is said, on the national character.

Another expedient of Henry’s invention must have aided the movement in
the direction of the criminal jury, namely, the writ _de odio et atia_
by applying for which a man “appealed” or accused of a crime might
substitute what was practically a jury’s verdict for the “battle” which
had previously, in the normal case, followed “appeal” as a matter of
course.[236]

-----

Footnote 236:

For fuller details see _infra_ under chapter 36, and _supra_ p. 108.

-----

(3) The Civil Jury owes its origin to quite a different set of reforms,
though inaugurated by the same reformer. Among the evil legacies left to
Henry II. from Stephen’s reign, not the least troublesome were the
numerous claims advanced by rival magnates to the various estates and
franchises which had been bestowed with equally lavish hands, but on
different persons, by Matilda and Stephen. Henry realized the urgent
need of giving his realm rest by protecting vested interests and by
introducing a more rational expedient than trial by combat for deciding
between rival claimants to landed estates. Here again he had recourse to
a new development of “inquisition.” In such cases an option was given to
the defendant (the man in possession, the man with a vested interest
which deserved protection), to refer the question at issue to the
verdict of local recognitors, twelve knights or freeholders in this
case, and therefore men of some position. The name “Assize” was, for
reasons to be immediately explained, applied alike to the procedure
itself and to the twelve neighbours who gave the verdict.

This new expedient, perhaps because it was looked on with suspicion as
an innovation of a violent and revolutionary nature, was applied at
first only to a few special cases, namely, to certain disputes as to
vested interests in land. It was used to settle claims of ultimate
title—the out-and-out ownership of the land—and then it was known as the
Grand Assize; it was also used to settle a few well-defined groups of
pleas of disputed possession, and then it was known as a Petty Assize
(of which there were, however, three distinct and well-known
varieties).[237]

-----

Footnote 237:

These three Petty Assizes are mentioned by name in c. 18 of the Great
Charter, and under that heading the entire subject is more fully
discussed. See _infra_.

-----

In these cases, the defendant could escape “battle” and compel the
plaintiff, even against his will, to submit his claim to the verdict of
the recognitors. This new-fangled privilege of the defendant had no
basis in the ancient custom of the land, but depended solely on royal
prerogative. The king, by a high-handed act of power, thus favoured the
defendant, by depriving the claimant of that remedy which was his right
by feudal law, namely, the resort to the legal duel. It was because the
new procedure was thus founded on a royal Ordinance, that the name
“Assize” was applied to it. The _assisa_ was a remedy strictly confined
to four groups of pleas.

By consent of _both_ parties, however, disputes of almost every
description might be similarly determined; being referred (under
supervision of the king’s judges) to the verdict of local recognitors,
usually twelve in number, who were then known as a _jurata_ (not an
_assisa_, the two being strictly opposed to each other). While the
_assisa_ was narrowly confined to a few types of cases, the _jurata_,
since it favoured neither party, was a flexible remedy capable of
indefinite expansion, and thus soon became the more popular and the more
important of the two. Yet the ancient _assisa_ and the ancient _jurata_,
always closely connected, and resembling each other in most essential
features, can both claim to be ancestors of the modern civil "jury,"—the
name of the more popular institution having survived. Magna Carta, in
providing for the frequent holding of the three Petty Assizes, marked a
stage in the development of the Civil Jury; while, in enforcing the
criminal procedure of Henry Plantagenet, and guarding it from abuse, the
Charter had also a vital bearing on the genesis of the Grand Jury and
the Petty Jury alike.

These scattered and incidental references to tendencies still vague and
indefinite must not, however, be misread as a reference to the definite
procedure into which at a later date they coalesced: Magna Carta does
not promise “trial by jury” to anyone.

PART IV.
HISTORICAL SEQUEL TO MAGNA CARTA.

I. Re-issues and Confirmations of the Great Charter.

While King John had accepted the reforms contained in Magna Carta
unwillingly and insincerely, the advisers of his son accepted them in
good faith. Three re-issues of the Charter were granted in 1216, in
1217, and in 1225, and these were followed by many confirmations, a full
account of which would involve a complete political and legal history of
England. The scheme of this Historical Introduction is restricted to the
narration of such facts as have a direct bearing on the genesis and
contents of the Charter of John. Yet no account of Magna Carta would be
complete without some notice of the more important alterations contained
in these three re-issues.

On 28th October, 1216, Henry of Winchester, was crowned at Gloucester
before a small assemblage.[238] The young King took the usual oath as
directed by the Bishop of Bath, and he also performed homage to the
Pope’s representative Gualo, for the King of England was now the vassal
of Rome. At a Council held at Bristol, on 11th November, William
Marshal, Earl of Pembroke, was appointed _Rector regis et regni_; and,
next day, the Charter was re-issued in the King’s name. This was a step
of extreme importance, marking the acceptance by those in power for the
time being of the programme of the baronial opposition.

-----

Footnote 238:

See _Annals of Waverley_, p. 286, and Stubbs, _Const. Hist._, II. 18.

The Charter in its new form was really a manifesto issued by the
moderate men who rallied round the throne of the young King; it may be
viewed in two aspects, as a declaration by the Regent and his
co-adjutors of the policy on which they accepted office, and as a bid
for the support of the barons who still adhered to the faction of the
French prince. Its issue was, indeed, dictated by the crucial situation
created by the presence in England of Prince Louis of France supported
by a foreign army and by a large faction of the English barons who had
sworn homage to him as their king. It was, therefore, framed in terms
likely to conciliate such of the opposition as were still open to
conciliation. Yet the new Charter could not be a verbatim re-issue of
the old one. Vital alterations were required by the altered
circumstances.[239] It was no longer the expression of a reluctant
consent by the government of the day to the demands of its enemies, but
rather a set of rules deliberately accepted by that government for its
own guidance. The chief tyrant against whom the original provisions had
been directed was now dead, and certain forms of tyranny, it was
confidently hoped, had died with him. Restraints now placed on the
Crown’s prerogatives would only hamper the free action of the men who
framed them, not of their political opponents. The new beneficent
government must not suffer for the sins of the old evil one. The Regent,
while willing to do much for the cause of conciliation, could not afford
to paralyze his own efficiency at a time when foreign invaders were in
possession of one-half of England, from which it would require a supreme
effort to dislodge them. In especial, the Crown, in its urgent need for
money wherewith to pay the wages of its mercenaries, must suffer no
unnecessary restraints upon its powers of taxation. The existing civil
war made it imperative that the government should retain a free hand in
exacting feudal services and in levying scutages. Moderate-minded men
would readily acquiesce in the wisdom of this policy; while it was
useless to modify it in the hope of conciliating the extreme party who
had thrown in their lot irretrievably with Prince Louis.

-----

Footnote 239:

The cause for wonder is rather how few changes required to be made.
“It is, however, by no means the least curious feature of the history,
that so few changes were needed to transform a treaty won at the point
of the sword into a manifesto of peace and sound government.” Stubbs,
_Const. Hist._, II. 21.

-----

The Charter of 1216 is, therefore, notable for its omissions. The chief
among these may be arranged under five groups.[240] (1) Restraints
placed in 1215 on the taxing power of the Crown now disappeared. The
chapters which forbade the king to increase the “farms” or fixed rents
of the counties and hundreds, those which defined the king’s relations
with the Jews, and those which restricted the lucrative rights derived
from the rigorous enforcement of the forest laws, were discarded. An
even more important omission was that of the clause which abolished the
Crown’s rights to increase feudal contributions arbitrarily without
consent of the Common Council.

-----

Footnote 240:

This classification takes no account of such alterations as seem to be
merely verbal or inserted to remove ambiguities, _e.g._ upon chapters
22, 28, and 30 of the original Charter.

-----

(2) One clause specially valued by the national Church was also omitted.
John’s grant of liberty of election by the canons of the chapters was
quietly ignored; although the vague declaration that the Church “should
be free” was allowed to remain.

(3) A great number of provisions of purely temporary interest naturally
disappeared, among them those providing for the disbandment of mercenary
troops and the dismissal from office of obnoxious individuals. Of more
importance was the omission of all reference to the device adopted for
enforcing the original Charter by means of the baronial committee of
twenty-five Executors.

(4) A number of minor omissions of a miscellaneous nature may be grouped
together; for example, chapter 27, providing that the chattels of every
freeman who died intestate should be divided under the supervision of
the Church; chapter 41, granting freedom to leave the kingdom, and
return, without the king’s consent; chapter 45, by which the Crown
restricted itself in the choice of justiciars and other officers; and
the latter half of chapter 47, relating to the banks of rivers and their
guardians.[241]

-----

Footnote 241:

These alterations show traces of some influence at work hostile to the
national Church. Not only is the promise of canonical election
withdrawn, but the omissions of the clauses regulating intestate
succession and guaranteeing freedom to leave the kingdom (a privilege
highly valued by the clergy) seem to prejudice the interests of
English churchmen. Now the papal legate was an active supporter of the
re-issue of this Charter in 1216; whereas Rome, in the crisis of June,
1215, had been bitterly opposed to the original grant of Magna Carta.
The inference is that Rome did not protest against these omissions to
the prejudice of the English Church. Why was this? The explanation
probably lies in the divergence of the interests of the national
Church from those of the Church universal. Canonical election, for
example, was nothing to Rome; successive Popes made provision for
their favourites more readily in England by bringing pressure to bear
on the King than on the monks of the various chapters. Henry III.
habitually acted on the omission; creating wide-felt discontent by
filling the English sees partly with his own foreign favourites, and
partly with ecclesiastics nominated by the Roman Curia. The King and
the Pope thus entered into a tacit partnership for their mutual
benefit at the expense of the English national Church.

-----

(5) These various alterations implied, incidentally rather than
deliberately, the omission of all mention of such constitutional
machinery as had found a place in the words of John’s Great Charter. The
twenty-five Executors fell with the other temporary provisions; while
chapter 14, which defined the composition and mode of summons of the
_Commune Concilium_, was omitted as a matter of course, along with
chapter 12, to which it had merely formed a supplement. It was
apparently thought unnecessary to make any mention of the Council, and
this attitude may be explained partly on the ground that the framers of
the new deed took for granted its continued existence in the future as
in the past, and partly by the consideration that its vital importance
as a constitutional safeguard had not yet been realized. Chapter 14 of
1215, to which much importance is invariably attached by modern writers,
probably held quite a subordinate place in the minds of its framers and
was abandoned altogether in 1216, never to be replaced.[242]

-----

Footnote 242:

It is notable that it failed to find a place in the Charter of 1225,
which was paid for by the nation at the price of one-fifteenth of
moveables.

-----

However natural may be the explanation, the fact is no less notable that
the only clauses of the original Charter which partook of a
constitutional character entirely disappeared from all of its re-issues.
Magna Carta as granted by Henry is purely concerned with matters which
lie within the sphere of private law, and contains no attempt to devise
machinery of government or to construct constitutional safeguards for
the protection of national liberties. The circumstances of the King’s
minority, perhaps, implied a constitutional check on the monarchy in the
necessary existence of guardians, but when Henry III. attained majority,
Magna Carta, deprived of its original sanctions, would, with the
disappearance of the Regency, tend to become an empty record of royal
promises. The entire machinery of government remained exclusively
monarchic; the king, once out of leading-strings, would be restrained
only by his own sense of honour and by the fear of armed resistance—by
moral forces neither legal nor constitutional. The logical outcome,
under the ripening process of time, was the Barons’ War.

The importance of the omissions is considerably minimized, however, by
two considerations. (_a_) Many of the original provisions were merely
declaratory, and their omission in 1216 by no means implied that they
were then abolished. The common law remained what it had been
previously, although it was not considered necessary to specify those
particular parts of it in black and white. In particular, throughout the
entire reign of Henry, the _Commune Concilium_ frequently met, and was
always, in practice, consulted before a levy was made of any scutage or
aid. (_b_) It is clearly stated in the new charter that the advisability
of replacing these omitted clauses was reserved for further
consideration at some more opportune occasion. In the so-called
“respiting clause” (chapter 42) six topics were specially named as thus
reserved because of their “grave and doubtful” import: the levying of
scutages and aids, the debts of the Jews, the liberty of going from and
returning to England, the forest laws, the “farms” of counties, and the
customs relating to banks of rivers and their guardians. This respiting
clause amounts to a definite engagement by the King to take into serious
consideration at some future time (probably as soon as peace had been
restored) how far it would be possible to re-insert the omitted
provisions in a new charter. This promise was partially fulfilled a year
later.[243]

-----

Footnote 243:

Dr. Stubbs propounds the theory that this re-issue of 1216 represents
a compromise whereby the central government, in return for increased
taxing powers, allowed to the feudal magnates increased rights of
jurisdiction. He gives, however, no reasons for this belief, either in
_Select Charters_, p. 339, or in his _Constitutional History_, II. 27.
It is abundantly clear that the Crown reserved a free hand for itself
in taxation, but there seems no evidence to support the other part of
the theory, namely, that feudal justice gained new ground against
royal justice in 1216 which had not been already gained in 1215.

-----

A practical difficulty confronted the advisers of the young King as to
the execution of the Charter. No instance of a Regency had occurred
since seals came into general use; and, therefore, neither law nor
custom afforded precedents for the execution of documents during a
king’s minority. The seal of a king, like that of any ordinary magnate,
was personal to him, and not available for his heir. The custom indeed
was to destroy the matrix when a death occurred, and thus to prevent its
being put to improper uses. John’s great seal could no longer be
used,[244] and the advisers of Henry III. shrank from the responsibility
of making a new one for the infant monarch. Yet no charter would be
binding unless executed with all the recognized formalities. In these
circumstances it was resolved to authenticate the new Charter by
impressing on it the seals of the papal legate and of the Regent. Henry
was made to explain that, in the absence of a seal of his own, the
Charter had been sealed with the seals of Cardinal Gualo and of William
Marshal, Earl of Pembroke, “_rectoris nostri et regni nostri_.”

-----

Footnote 244:

It is unnecessary to invent any special catastrophe to account for the
disappearance of John’s seal. Blackstone (_Great Charter_, xxix.)
says, "King John’s great seal having been lost in passing the washes
of Lincolnshire."

-----

The issue of the new Charter was not immediately successful in bringing
the civil war to an end; but a stream of waverers flowed from Louis to
Henry, influenced partly by the success of the national faction in the
field and partly by the moderate policy of the government typified by
the re-issue of the Charter. On 19th May, 1217, the royalists gained a
decisive victory at the battle known as the “Fair of Lincoln”; and, on
24th August following, Hubert de Burgh, the Justiciar, destroyed the
fleet on which Louis depended. The French prince was compelled to sue
for peace. Although negotiations were somewhat protracted, the resulting
Treaty of Lambeth bears date the 11th September, 1217, the day on which
they opened.[245] Several interviews took place at Lambeth between 11th
and 13th September, and these were followed by a general conference at
Merton, commencing on the 23rd, at which Gualo, Louis, the Regent, and
many English nobles were present.[246] Some difference of opinion exists
as to the exact stages of these negotiations,[247] and it seems best to
treat as one whole the settlement ultimately arranged. “The treaty of
Lambeth is, in practical importance, scarcely inferior to the charter
itself.”[248] It marked the final acceptance by the advisers of the
Crown of the substance of Magna Carta as the permanent basis of
government for England in time of peace, not merely as a provisional
expedient in time of war. Its terms were equally honourable to both
parties: to the Regent and his supporters, because of the moderation
they displayed; and to Louis who, while renouncing all claim to the
English Crown, did so only on condition of a full pardon to his allies,
combined with the guarantee of their cause, so far at least as that was
embodied in the Charter. Ten thousand marks were paid to Louis,
nominally as indemnity for his expenses; but he had in return to restore
the Exchequer Rolls, the charters of the Jews (that is the rolls on
which copies of their starrs or mortgages had been registered),[249] the
Charters of Liberties granted by John at Runnymede, and all other
national archives in his possession. Sir William Blackstone thinks it
probable that, under this clause of the treaty, the original of the
Articles of the Barons was handed over, and deposited among the other
archives of the Archbishop of Canterbury at Lambeth Palace where it
remained until the middle of the seventeenth century.[250] One condition
of this general pacification was of supreme importance—the promise given
by the Regent and the papal legate to grant a new and revised Charter.
This promise was fulfilled some six weeks later, a Charter of Liberties
and a separate Forest Charter being issued on the 6th November,
1217.[251]

-----

Footnote 245:

Compare what is said of the negotiations at Runnymede, and the date of
John’s Magna Carta, _supra_, p. 48.

Footnote 246:

Blackstone, _Great Charter_, xxxiv.

Footnote 247:

_Ibid._

Footnote 248:

Stubbs, _Const. Hist._, II. 25.

Footnote 249:

See _infra_ under chapter 9.

Footnote 250:

_Great Charter_, xxxix., and _cf. infra_, p. 201.

Footnote 251:

The Forest Charter, preserved in the archives of Durham Cathedral,
bears this date, and that, in itself, affords some presumption that
the Charter of Liberties (undated) to which it forms a supplement was
executed at the same time. M. Bémont accepts this date; see his
_Chartes_, xxviii., and authorities there cited. Blackstone, _Great
Charter_, xxxix., gives the probable date as 23rd September. Dr.
Stubbs, always catholic in his sympathies, gives both dates, 23rd
September in _Sel. Charters_, 344, and 6th November in _Const. Hist._,
II. 26. This Charter of Liberties of 1217, originally found among the
archives of Gloucester Abbey and now in the Bodleian Library at
Oxford, still bears the impression of two seals—that of Gualo in
yellow wax, and that of the Regent in green. See Blackstone, _Great
Charter_, p. xxxv. The existence of the separate Forest Charter was
only surmised by Blackstone, _Ibid._, p. xlii.; but shortly after he
wrote, an original of it was found among the archives of Durham
Cathedral. For an account of this and of its discovery, see Thomson,
_Magna Charta_, pp. 443-5.

-----

The issue of these two Charters put the copestone to the general
pacification of the kingdom. After the wide-spread havoc wrought by two
years of civil war, the moment had come for a definite and final
declaration by the Regent of his policy for ruling an England once more
at peace. Not only was he bound in honour to this course by the Treaty
of Lambeth, but the opportunity was a good one for fulfilling the
promise made in chapter 42 of the Charter of 1216. Accordingly the
respiting clause of that document now disappeared altogether, and some
new clauses took its place. The matters reserved for further discussion
as “_gravia et dubitabilia_” had now been reconsidered and were either
finally abandoned, or else accepted with more or less radical
alterations. The results of these deliberations are to be found in a
number of additions to the Charter of Liberties of 1217, the most
important of which are chapters 44 and 46, and in the terms of a Forest
Charter now granted for the first time.

Chapter 46 is a “saving clause,” reserving to archbishops, bishops,
abbots, priors, templars, hospitallers, earls, barons, and all other
persons, cleric and lay, the liberties and free customs which they
previously had. The vagueness of this provision (a mere reference to the
undefined and misty past) deprived it of all practical value. The other
addition was of much greater importance.

Chapter 44 directed that scutages should be taken in the future as they
had been wont to be taken in the time of Henry II. Now, the rates of
scutage and the procedure for levying it in that reign had been quite
specific, and could still be read among the Rolls of the Exchequer
recently recovered from Prince Louis. It was thus easy to define the
various innovations of John’s reign, those well-hated additional burdens
which had furnished the chief motive for the civil war, and which Henry
III. was now made to promise should be utterly swept away. This general
condemnation probably included the increased frequency of John’s
exactions, the assessment of scutages on the new basis provided by the
Inquest of 1212, the levy of both scutage and service cumulatively, and,
above all, the exaction of the high rate of three marks per knight’s
fee. The essence of the demands pressed on the government by the
baronial leaders in 1217 must undoubtedly have been the return to the
normal maximum rate of 20s. per knight’s fee. Henry II., we have seen,
sometimes took less, but only on one occasion took more.[252] This
provision, it should be needless to say, did not preclude the barons
individually or collectively from volunteering to contribute at a higher
rate; and the necessity of such abnormal contributions would naturally
be determined at meetings of the _Commune Concilium_.

-----

Footnote 252:

See _supra_, p. 88.

-----

The substitution of this definite stipulation of a return to the
well-known usage of Henry II. in place of the discarded chapters 12
and 14 of John’s Charter (which made “common consent” necessary for
_all_ scutages, whatever the rate) was a natural compromise; and the
barons in agreeing to it were probably quite justified in thinking,
from their own medieval point of view, that they were neither
submitting to any unfair abridgments of their rights, nor yet
countenancing any reactionary measures hurtful to the growth of
constitutional liberty.[253] Yet when this alteration is viewed by
modern eyes in the light cast by the intervening centuries of
constitutional progress, and when it is remembered that the new clause
formed the chief part of the concessions made in 1217 to baronial
claims, the conclusion inevitably suggests itself that the new
agreement is the proof of retrograde tendencies successfully at work.
All mention of the _Commune Concilium_—that predecessor of the modern
Parliament, that germ of all that has made England famous in the realm
of constitutional laws and liberties—disappears, apparently without
protest or regret. If the control of taxation by a national assembly,
if the conception of representation, if the indissoluble connection of
these two principles with each other, ever really found a place in
Magna Carta, they were contemptuously ejected from it in 1216, and
failed to find a champion in 1217 to demand their restoration.

-----

Footnote 253:

Mr. Hubert Hall (_Eng. Hist. Rev._, IX. 344) takes a different view,
however, considering that a reduction of scutages to the old rate of
the reign of Henry II. was impossible; he speaks of “the astounding
and futile concession in c. 44 of the charter of 1217.” The clause is
surely neither astounding nor futile if we regard it as a promise by
Henry III. that he would not exact more than 20s. per knight’s fee
_without consent_, and if we further note that it was the practice of
his reign to ask such consent from the _Commune Concilium_ for
scutages even of a lower rate. A levy of 10s., for example, was
granted by a Council in 1221. See Stubbs, _Const. Hist._, II. 33.

-----

A modern statesman, with any knowledge of the value of constitutional
principles, would have gladly seized the occasion of the revision of the
terms of the Charter, to assert and define the functions and rights of
the Great Council with precision and with emphasis. He would not lightly
have thrown away the acknowledgment implied in chapters 12 and 14 of
1215—in the germ, at least—of the right of a national council to
exercise a legal control over the levying of taxes. The magnates on both
sides in 1217 were content, however, to abandon to their fate all
abstract principles of constitutional development, provided they could
protect their lands and purses from an immediate increase of taxation.
Far-reaching problems of the composition and privileges of Parliament
were unhesitatingly surrendered, as soon as another method of defence
against arbitrary increase of scutage was suggested. The barons were
selling, not indeed their birthright, but their best means of gaining
new rights from the Crown, for “a mess of pottage.”

Such considerations, however, must not be pressed too far. It should not
be forgotten that no one seriously thought in 1217, any more than in
1216, of dispensing with future meetings of the feudal tenants in
_Commune Concilium_. Great Councils indeed continued to meet with
increasing frequency throughout the reign of Henry III., and the consent
of the magnates therein assembled was habitually asked to scutages even
at a lower rate than that which had been normal in Henry II.’s reign.
Sometimes such consent was given unconditionally; sometimes in return
for a new confirmation of the cherished Charters; sometimes, even, it
was met by an absolute refusal—the first distinct instance of which
seems to have occurred in January, 1242.[254]

-----

Footnote 254:

Prothero, _S. de Montfort_, 67.

-----

Another set of provisions which the respiting clause of 1216 had
promised to reconsider was amply restored in the terms of a separate
Forest Charter. This took the place not only of certain chapters of the
original grant of 1215 omitted in 1216, but also of chapters 36 and 38
of the grant of 1216. Nothing was, however, done to restore other
important omissions, namely, those relating to the Jews, to intestate
succession, to free ingress to and egress from England. On the other
hand, additional provisions, not promised in the respiting clause, were
directed against various abuses of the Crown’s feudal and other
prerogatives.[255]

-----

Footnote 255:

See cc. 7, 26, and 38 of 1217. Blackstone (_Great Charter_, xxvii.)
further considers that c. 35 of 1217 contains “more ample provision
against unlawful disseisins”; and this opinion of a great lawyer is
shared by a distinguished historian. Mr. Prothero (_Simon de
Montfort_, 17 n.), finds that the words of the re-issue “are
considerably fuller and clearer than the corresponding declaration in
the charter of 1215.” It will be shown, however, _infra_ under chapter
39, that one object of the alteration was to make it clear that
holdings of villeins were excluded from the projection of the
_judicium parium_; and that other alterations in the Charter of 1217
(_e.g._ chapter 16) are carefully drawn with a similar object.

-----

So far the Charter of 1217, with its restorations and additions, may be
regarded as a politic effort to secure the support of the barons by
satisfying their reasonable demands; but it may also be viewed in three
other aspects: (1) as containing provisions for suppressing the anarchy
still prevalent in several districts, a legacy from the civil war; (2)
as amending some few details of the original grant which the experience
of two years had shown to be defective or objectionable; and (3) as
making a first attempt to solve certain problems of government which had
come quite recently to the foreground, but which were not successfully
grappled with until three-quarters of a century later, when the
legislative genius of Edward Plantagenet was brought to bear upon them.

Among the chapters restoring order, the most important, with the
exception of those recasting the machinery of administration, was that
which ordered the destruction of the “adulterine” castles,[256] that is,
the private strongholds built by barons without the licence of the
Crown. These remained in 1217, as they had remained in 1154, a result of
past civil war, and a menace to peace and good government in the future.
It was the aim of every efficient ruler to abolish all fortified
castles—practically impregnable in the thirteenth century when artillery
was unknown—except those of the King, and to see that the royal castles
were under command of “constables”[257] of approved loyalty. John had
placed his own strongholds under creatures of his own, who, after his
death, refused to give them up to his son’s Regent. The attempt to
dislodge these soldiers of fortune, two years later, led to new
disturbances in which the famous Falkes de Breauté played a leading
part.[258] The destruction of “adulterine” castles and the resumption of
royal ones were both necessary accompaniments of any real pacification.

-----

Footnote 256:

C. 47 of 1217.

Footnote 257:

See _infra_ under cc. 24 and 45.

Footnote 258:

Stubbs, _Const. Hist._, II. 32.

-----

The re-issue of 1217 may also be regarded as bearing some analogy to a
modern amending Statute. Experience, for example, had suggested the
desirability of several alterations in the procedure for holding petty
assizes. Many objections had been taken to the dispatch of Justices,
with commissions to hold assizes in the various counties, so frequently
as four times every year. It was now agreed to reduce these circuits
from once a quarter to once a year—a concession to those who felt the
burden of too frequent attendance.[259] Although the king’s Justices
were still to enjoy the co-operation of knights from each county, it was
no longer specially mentioned that these knights should be _elected_.
All pleas of darrein presentment were removed from the jurisdiction of
the Justices on circuit, and reserved for the consideration of “the
Bench,” presumably now settled at Westminster.[260] The two other
assizes (novel disseisin and mort d’ancestor) were still left to the
king’s Justices in the respective counties where the lands lay, but
difficult points of law were reserved for “the Bench.”[261] The
inferiority of the Justices of Assize to the Courts at Westminster was
thus made clear.

-----

Footnote 259:

C. 13 of 1217.

Footnote 260:

C. 15 of 1217.

Footnote 261:

C. 14 of 1217.

-----

The same natural reluctance of those who owed suit to the local courts,
to neglect their own affairs in order to perform public duties, which
led to the demand for less frequent visits of the Justices of Assize,
led also to an emphatic restatement of the old customary rules as to
attendance at County Courts. Ordinary sessions were not to be held more
frequently than once a month, nor was the sheriff to make his Tourn, or
local circuit, throughout the various hundreds of his county more
frequently than twice a year, namely at Easter and Michaelmas: and only
at Michaelmas was he to hold view of frankpledge—one of the most
important functions performed by him in the course of his circuit.[262]
It was a more distinct concession to the feudal anti-centralizing
spirit, that this royal view of frankpledge—for the sheriff acted as the
king’s deputy—was prohibited from infringing any freeman’s franchises,
whether such franchises had existed under Henry II. or had been
subsequently acquired.[263]

-----

Footnote 262:

C. 42 of 1217.

Footnote 263:

_Ibid._ This seems to imply that all the aggressions since Henry’s
reign, had not been on one side. The barons, in obtaining a promise to
respect “franchises” acquired since 1189, tacitly admitted that they
had been recently encroaching on royal prerogatives. By the Statute of
Gloucester and the subsequent _quo warranto_ procedure Edward I. made
a partially successful effort to redress the balance.

-----

Two questions, destined to become of supreme importance in the future,
have also left traces on this re-issue of the Charter:—on chapters 39
and 43 respectively. The former treats of the vexed question of a feudal
tenant’s right to dispose of parts of his holding by gift or sale. There
were two different methods of effecting this—by way of subinfeudation or
by way of substitution: the tenant might create a new link in the feudal
chain by granting part of his lands to a third party, who became his
vassal as a result of the new grant; or he might endeavour to make the
donee the direct vassal of his overlord, _quoad_ the land he had newly
acquired. There was here a direct conflict of interest between overlord
and tenant, which extended to both ways of conveying land. Freedom to
sell it or give it away was clearly an advantage to the tenant; while
the lord objected to a transaction which might thrust on him new vassals
he did not desire, or might divide between two or more vassals the
obligations formerly incumbent on one, making the incidence of feudal
burdens uncertain and their enforcement more difficult. Chapter 39
contained a compromise. The tenant might part with a portion of his
holding, provided the balance he reserved was sufficient to ensure full
performance by himself of the obligations due to the lord. The original
vassal thus remained primarily liable for the whole of the feudal
obligations (whatever right of relief he might have against his donees
or sub-tenants), and must reserve in his own hands sufficient lands out
of the proceeds of which to fulfil them. The final solution of the
problem, here temporarily disposed of, was contained in the Statute
commonly known as _Quia Emptores_,[264] which allowed the tenant to
dispose of parts of his estate by way of substitution, while forbidding
subinfeudation entirely.

-----

Footnote 264:

18 Edward I., also known as Westminster III.

-----

Chapter 43 marks the growing hostility against the accumulation by the
monasteries of wealth in the form of landed estates, and begins the
series of legislative measures which culminated in the Statute of
Mortmain.[265] The times were not ripe in 1217 for a final solution of
this problem, and the charter of that year contented itself with an
attempt to remedy one of the subsidiary abuses of the system merely, and
not to abolish the main evil. An ingenious expedient had been devised by
lawyers to enable tenants to cheat their lords out of some of the lawful
feudal incidents. Religious houses formed one species of corporation,
and all corporations made bad tenants, since, as they never died, the
lord of the fief was deprived of the possibility of a wardship, relief,
or escheat falling to him. This was a hardship; but it was not unfair,
provided that the transaction which made the abbey or monastery owner of
the subjects was a _bona fide_ one. Sometimes, however, more or less
collusive agreements were made between a lay free-holder and a religious
house whereby a new link was inserted in the feudal chain to the
prejudice of the freeholder’s lord. The freeholder bestowed his lands on
a particular house, which took his place as the new tenant of the lord
and then subinfeudated the same subjects to the original tenant, who
thus got his lands back again, but now became tenant of the church, not
of his former lord. The lord was thus left with a corporation for his
tenant and lost all the profitable incidents, which would, under the new
arrangement, accrue to the church when the freeholder died. Such
expedients were prohibited, under pain of forfeiture, by chapter 43 of
the re-issue of 1217; and this prohibition was interpreted very
liberally by the lords in their own favour.[266]

-----

Footnote 265:

7 Edward I., also known as the Statute _de religiosis_.

Footnote 266:

See Pollock and Maitland, I. 314.

-----

These were the main alterations made in 1217 in the tenor of the Great
Charter.[267] This re-issue is of great importance, since it represents
practically the final form taken by the Charter, only two changes being
made in subsequent issues.[268] On the 22nd February, 1218, copies of
the Great Charter in this new form were sent to the sheriffs to be
published and enforced. In the writs accompanying them, the special
attention directed to the clause against unlicensed castles shows the
importance attached to their demolition.[269]

-----

Footnote 267:

Minor variations are discussed under their appropriate chapters
_infra_. A full list is given by Blackstone, _Great Charter_, xxxvi.

Footnote 268:

_Cf._ Stubbs, _Const. Hist._, II. 27. “This re-issue presents the
Great Charter in its final form.”

Footnote 269:

The terms of these writs are preserved in _Rot. Claus._, I. 377.

The Regent and the ministers of the Crown seem to have felt increasingly
the inconvenience of conducting the government without a great seal of
the King. There was a natural reluctance to accept grants authenticated
merely by substitutes for it, since these might not be treated as
binding on the monarch when he came of age. The Regent at last agreed to
the engraving of a great seal for Henry, but not without misgivings. To
prevent it being used by unscrupulous ministers to validate lavish
grants to their own favourites to the impoverishment of the Crown, the
Council, on the advice of the Regent, issued a proclamation that no
charter or other deed implying perpetuity should be granted under the
new seal during the King’s minority—a saving clause of which Henry was
destined to make a startling use. This proclamation was probably issued
soon after Michaelmas 1218.[270]

-----

Footnote 270:

Stubbs, _Const. Hist._, II. 30. The _Annals of Waverley_, p. 290,
speak of a re-issue of the charters about this date; but this probably
results from confusion with what happened a year earlier. See Stubbs,
_Ibid._

-----

On 14th May, 1219, England lost a trusted ruler through the death of the
aged Regent, whose loyalty, firmness, and moderation had contributed so
much to repair the breaches made in the body politic by John’s evil
deeds, and the consequent civil war. After the good Earl of Pembroke’s
death, the Bishop of Winchester and Hubert de Burgh contended for the
chief place in Henry’s councils, with alternating success, but neither
of them succeeded to the title of _Rector regis et regni_.[271] A few
years later, the young King seems to have grown impatient under the
restraints of a minority, and the Roman Curia was ready to bid for his
goodwill by humouring him. In 1223 Honorius III., by letter dated 13th
April, declared Henry (then only in his sixteenth year) to be of full
age as regarded most of the duties of a king.[272]

-----

Footnote 271:

Stubbs, _Const. Hist._, II. 31.

Footnote 272:

Stubbs, _Const. Hist._, II. 32, and authorities there cited.

-----

The terms of this papal letter may have suggested to some of Henry’s
councillors the possibility of renouncing the Charters on the ground
that they had been granted to the prejudice of the King before he had
been declared of full age. One of his flatterers, William Briwere by
name, at a “colloquium” held in January, 1223, advised him to repudiate
the two Charters when requested by Stephen Langton to confirm them.
Briwere’s bold words are reported by Matthew Paris.[273] “_Libertates
quas petitis, quia violenter extortae fuerunt, non debent de jure
observari._” This doctrine of repudiation moved the primate to anger,
and Henry, still accustomed to leading-strings, gave way, swearing to
observe the terms of both charters. An element of truth, however,
underlay Briwere’s advice, and the whole incident probably showed to the
more far-seeing friends of liberty the necessity of a new and
_voluntary_ confirmation of the Charters by the King. An opportunity for
securing this occurred next year, when Henry at Christmas, 1224,
demanded one-fifteenth of all his subjects’ moveables. He was met by a
firm request that he should, in return for so large a grant, renew Magna
Carta. The result was the re-issue on 11th February, 1225, of both
Charters each of which was, as a matter of course, fortified by the
impression of the great seal recently made. The importance of the whole
transaction was enhanced by the declaration made by Honorius III. only
two years previously, that Henry was of full age to act for himself. The
new forest Charter was practically identical with that issued in 1217;
while the only alterations in the tenor of the Charter of Liberties were
the result of a laudable determination to place on record the
circumstances in which it had been granted. In the new preamble Henry
stated that he conceded it “_spontanea et bona voluntate nostra_” and
all reference to the consent of his magnates was omitted, although a
great number of names appear as witnesses at the close of the Charter.
These alterations were intended to emphasize the fact that no pressure
had been brought to bear on him, and thus to meet future objections such
as William Briwere had suggested in 1223, namely, that the confirmation
of the Charter had been extorted by force.[274]

-----

Footnote 273:

_Chronica Majora_, III. 76.

Footnote 274:

Dr. Stubbs thinks that in thus avoiding one danger, a greater danger
was incurred. "It must be acknowledged that Hubert, in trying to bind
the royal conscience, forsook the normal and primitive form of
legislative enactment, and opened a claim on the king’s part to
legislate by sovereign authority without counsel or consent." (_Const.
Hist._, II. 37.) This seems to exaggerate the importance of an
isolated precedent, the circumstances of which were unique. The
confirmation was something far apart from an ordinary “legislative
enactment.”

-----

The “consideration” also clearly appears in the concluding portion of
the Charter, where it is stated that in return for the foregoing gift of
liberties along with those granted in the Forest Charter, the
archbishops, bishops, abbots, priors, earls, barons, knights, free
tenants, and all others of the realm had given a fifteenth part of their
moveables to the King.

The prominence given to this feature brings the transaction embodied in
the re-issue of 1225 (as compared with the original grant of 1215) one
step nearer the legal category of “private bargain.” It is, in one
aspect, simply a contract of purchase and sale. Another important new
clause follows—founded probably on a precedent taken from chapter 61 of
the Charter of King John: Henry is made significantly to declare “And we
have granted to them for us and our heirs, that neither we nor our heirs
shall procure any thing whereby the liberties in this charter shall be
infringed or broken; and if any thing shall be procured by any person
contrary to these premises, it shall be held of no validity or effect.”
This provision was clearly directed against future papal dispensations
or abrogations, such as that which King John had obtained from Innocent
in 1215. The clause, however, was diplomatically made quite general in
its terms.[275]

-----

Footnote 275:

A few minor alterations, such as the omission of the clause against
unlicensed castles (now unnecessary) and some verbal changes need not
be mentioned. A list of these is given by Blackstone, _Great Charter_,
l.

-----

One original copy of this third re-issue of the Great Charter is
preserved at Durham with the great seal in green wax still perfect,
though the parchment has been “defaced and obliterated by the
unfortunate accident of overturning a bottle of ink.”[276] A second is
to be found at Lacock Abbey, in Wiltshire. The accompanying Forest
Charter is also preserved at Durham.[277]

-----

Footnote 276:

See Blackstone, _Ibid._, xlvii. to l.

-----

Footnote 277:

_Ibid._

-----

This third re-issue brings the story of the genesis of the Great Charter
to an end. It marked the final form assumed by Magna Carta; the
identical words were then used which afterwards became stereotyped and
were confirmed, time after time, without further modification. It is
this Charter of 1225 which is always referred to in the ordinary
editions of the Statutes, in the courts of law, in parliament, and in a
long series of classical law books beginning with the second _Institute_
of Sir Edward Coke.[278]

-----

Footnote 278:

One slight exception should be noted. In one point of detail a change
had occurred since 1225; the rate of relief payable from a barony had
been reduced from £100 to 100 marks. See _infra_ under chapter 2.

-----

Although the Charter, thus, in 1225 took the permanent place it has
since retained among the fundamental laws of England, it was not yet
secure from attacks. Two years later the actions of Henry raised strong
suspicions that he would gladly annul it, if he dared.

The young King, in spite of the Pope’s bull declaring him of full age in
1223, had in reality only passed from one set of guardians to another;
he had long chafed under the domination of the able but unscrupulous
Peter des Roches, Bishop of Winchester, when in the beginning of 1227 he
suddenly rebelled. Acting probably under the advice of Hubert de Burgh,
who wished to return to power, Henry determined to shake off the control
of Bishop Peter. At a Council held at Oxford in January, 1227, Henry,
though not yet twenty, declared himself of full age;[279] and soon
thereafter showed what use he intended to make of his newly acquired
freedom. Making an unexpected application of the proclamation issued by
the Regent, William Marshal, in 1218, that the great seal should not,
during the minority, be used to authenticate any grants in perpetuity of
royal demesne lands or other rights of the Crown, Henry now interpreted
this to imply the nullity of all charters whatsoever which had been
issued under the great seal since his accession. He even tentatively
applied this startling doctrine to the Forest Charter.

-----

Footnote 279:

A bull of Gregory IX., dated 13th April, 1227, confirmed Henry in this
declaration that his minority was ended. See Blackstone, _Great
Charter_, li., and Stubbs, _Const. Hist._, II. 39.

-----

Henry’s new policy seems to have been endorsed by the magnates present,
and on 21st January, 1227, he issued by their “common counsel” a series
of “letters close” directing that all recipients of Crown charters must
apply for their renewal—a ceremony requiring, of course, to be
handsomely paid for. On 9th February a second series of “letters close”
was issued, resulting in the extension of many forests to their old
boundaries once more.[280]

-----

Footnote 280:

See _Rot. Claus._, II. 169, and Stubbs, _Const. Hist._, II. 40, where
it is suggested that “the declaration seems merely to have been a
contrivance for raising money.” This is not quite accurate. Mr. G. J.
Turner, in his introduction to _Select Pleas of the Forest_, pp. xcix.
to cii., gives a full and convincing account of Henry’s procedure and
motives. “The king neither repudiated the Charter of the Forest nor
annulled the perambulations which had been made in his infancy. He
merely corrected them after due inquiry.”

-----

Fears, apparently unfounded, that the Great Charter was in danger, seem
to have been rife. If Henry really entertained any intention of setting
aside Magna Carta, it is fortunate that the attack upon it, suggested to
the King by William Briwere in January, 1223, was not seriously
attempted until four years later. The delay was of supreme importance,
since there had intervened the third re-issue of the Charter containing
the declaration that the King had acted voluntarily, and fortified by
the facts that Honorius had previously declared him of full age for such
purposes, and that he had accepted a price for the confirmation of the
Charter. Henry could not now repudiate the papal dispensation which he
had gladly accepted and acted upon four years earlier. In this way the
re-issue of both charters in 1225 had gone far to secure the national
liberties. Henry shrank from any open infringement of the Great Charter;
and, although he was partially successful in restoring the forests to
their old wider boundaries, thus undoing many reforms of his minority,
he proceeded without violating the letter of the Forest Charter.
Henceforward, Henry’s attitude towards the charters was a settled one,
and easily understood. He confirmed them with a light heart whenever he
could obtain money in return, and thereafter acted as though they did
not exist.

Henceforth history is concerned not with re-issues but with
confirmations of the Great Charter. Of these the number is considerable,
beginning with that granted at Westminster on 28th January, 1237;[281]
but it forms no part of the scheme of this Historical Introduction to
describe these in detail.[282] One of them, the so-called _Confirmatio
Cartarum_ of 5th November, 1297, is specially important, not because it
is a confirmation, but because it is something more. It contains new
clauses which impose restrictions on the taxing power of the Crown; and
these, to some extent, take the places of those chapters (12 and 14) of
the original grant of John, which had been omitted in all intervening
re-issues and confirmations.

-----

Footnote 281:

Blackstone, _Great Charter_, 68–9; Stubbs, _Sel. Charters_, 365–6.

Footnote 282:

The more important among them are enumerated by Coke in his second
_Institute_, p. 1. Further details are given by Blackstone, _Great
Charter_, lii.; Thomson, _Magna Charta_, 437–446; and in Bémont,
_Chartes_, pp. xxx. to liii.

-----

A Statute of 1369 (42 Edward III. c. 1), requires special notice, since
it commands that “the Great Charter and the Charter of the Forest be
holden and kept in all points, and if any statute be made to the
contrary that shall be holden for none.” Parliament in 1369 thus sought
to deprive future Parliaments of the power to effect any alterations
upon the terms of Magna Carta. Yet, if Parliament in that year had the
power to add anything by a new legislative enactment to the ancient
binding force of the Great Charter, it follows that succeeding
Parliaments, in possession of equal powers, might readily undo by a
second statute what the earlier statute had sought to effect. If
Parliament had power to alter the sacred terms of Magna Carta itself, it
had equal power to alter the less sacred statute of 1369 which declared
it unalterable. The terms of that statute, however, are interesting as
perhaps the earliest example on record of the illogical theory
(frequently reiterated in later years) that the English Parliament might
use its present legislative supremacy in such a manner as to limit the
legislative supremacy of other Parliaments in the future.

II. Magna Carta and the Reforms of Edward I.

The Great Charter, alike from its excellences and from its defects,
exercised a potent influence on the trend of events throughout the two
succeeding reigns. It is hardly too much to say that the failure of
Magna Carta to provide adequate machinery for its own enforcement is
responsible for the spirit of unrest and for the protracted struggles
and civil war which made up the troubled reign of Henry III.; while the
difference of attitude assumed by Henry and by his son Edward
respectively towards the scheme of reform it embodied explains the
fundamental difference between the two reigns—why the former was so full
of conflicts and distress, while the latter was so prosperous and
progressive. To trace the history of these reigns in detail lies outside
the scope of this Historical Introduction. It seems necessary, however,
to emphasize such outstanding events as have an obvious and close
connection with the Great Charter, and also to outline the policy of
Edward, which led ultimately to the triumph of its underlying
principles.

The fundamental difference between the reigns of Henry III. and Edward
I. lies in this, that while Henry, in spite of numerous nominal
confirmations of Magna Carta, never loyally accepted the settlement it
contained, Edward, on the contrary, acquiesced in the main provisions of
the Great Charter, under many subtle modifications it is true, yet
honestly on the whole, and with a sincere intention to carry them into
practice.

At the same time, the attitude even of Henry III. towards Magna Carta
indicates a distinct advance upon that of his father. It was much that
the advisers of John’s infant heir solemnly accepted, on behalf of the
Crown, the provisions of the Charter, and strove to enforce them during
the minority; and it was even more that Henry, on attaining majority,
confirmed the arrangement thus arrived at, freely and on his own
initiative, and found himself thereafter unable openly to repudiate the
bargain he had made. Yet the settlement of the dissensions between Crown
and baronage was still nominal rather than real. In the absence of
proper constitutional machinery, the king was merely bound by bonds of
parchment which he could break at pleasure. The victory of the friends
of liberty proved a hollow one, since unsupported promises count for
little in the great struggles fought for national liberties. Even the
crude constitutional devices of the Charter of 1215 entirely disappeared
from its confirmations; and, in the absence of all sanctions for its
enforcement, the Charter became an empty expression of good intentions.
If a quarrel arose, no constitutional expedient existed to reconcile the
disputants—nothing to obviate a final recourse to the arbitrament of
civil war. Thus, part of the blame for the recurring and devastating
struggles of the reign of Henry III. must be attributed to the defects
of the Great Charter.

The whole interest of the reign indeed lies in the various attempts made
to evolve adequate machinery for enforcing the liberties contained in
Magna Carta. Experiments of many kinds were tried in the hope of turning
theory into practice. The system of government outlined in the
Provisions of Oxford of 1258, for example, reproduced the defects of the
crude scheme contained in chapter 61 of the Great Charter, and added new
defects of its own. It sought to keep the king in the paths of good
government by the coercion of a body of his enemies. This baronial
committee was not designed to enter into friendly co-operation with
Henry in the normal work of government, but rather to supersede entirely
his right to exercise certain of the royal prerogatives. No glimmering
was yet apparent of the true solution afterwards adopted with success.
It was not yet realized that the best way to control the Crown was
through the agency of its own ministers, and not by means of a hostile
opposition organized for rebellion—that the correct policy was to make
it difficult for the king to rule except through regular ministers, and
to secure that all such ministers should be men in whom the _Commune
Concilium_ reposed confidence and over whom it exercised control.

It is true that Simon de Montfort may have had some vague conception of
the real constitutional remedy for the evils of the reign; but his
ideals were overruled in 1258 by the more extreme section of the
baronial party. Earl Simon indeed had one opportunity of putting his
theories into practice. During the brief interval between the battle of
Lewes, which made him supreme for the moment, and the battle of Evesham,
which ended his career, he enjoyed an unfettered control over the
movement of reform; and some authorities find in the provisional scheme
of government, by means of which he attempted to realize his political
ideals in the closing months of 1264, traces of the true constitutional
expedient afterward successfully adopted as a solution of the problem.
In one respect, undoubtedly, the Earl of Leicester did influence the
development of the English constitution; he furnished the first
precedent for a national Parliament, which reflected interests wider
than those of the Crown tenants and the free-holders, when he invited
representatives of the boroughs to take their places by the side of the
representatives of the counties in the national council summoned to meet
in January, 1265. His schemes of government, however, were not fated to
be realized by him in a permanent form. The utter overthrow of his
faction followed his decisive defeat and death at Evesham on 4th August,
1265.

The personal humiliation of Simon de Montfort, however, in reality
assured the ultimate triumph of the cause he had made his own. Prince
Edward, from the moment of his brilliant victory at Evesham, was not
only supreme over his father’s enemies, but henceforth he was supreme
also within his father’s councils. He found himself in a position at
once to realize some of his most important political ideals; and from
the very moment of his victory, he adopted as his own, with some
modification, it is true, the main constitutional conceptions of his
uncle Earl Simon, who had been his friend and teacher before he became
his deadliest enemy.

Edward Plantagenet, alike when acting as the chief adviser of his aged
father and after he had succeeded him on the throne, not only accepted
the main provisions of the Great Charter,[283] but adopted also, along
with them, a new scheme of government which formed their necessary
counterpart. To Edward is due the first dim conception of “parliamentary
government,” to this extent at least, that the king, as head of the
executive government, should take a national council into partnership
with him in the work of national administration. His political ideals
were the natural result of the experience obtained during the later
years of his father’s reign; and he endeavoured to embody in his scheme
of government the best parts of the various experiments in which that
reign abounded. His policy, although founded on that of his uncle Simon
de Montfort, was profoundly modified by his own individual genius. The
very fact of the adoption of Earl Simon’s ideals by the heir to the
throne entirely altered their chances of success. All such schemes had
been foredoomed to failure so long as they merely emanated from an
opposition leader however powerful; but their triumph was speedily
assured now that they were accepted as a programme of reform by the
monarch himself. Henceforth the new political ideals, summed up in the
conception of a national Parliament, were to be fostered by the Crown’s
active support, not merely thrust upon the monarchy from without.

-----

Footnote 283:

The best proof of this will be found in a comparison of Magna Carta
with the Statute of Marlborough, and the chief statutes of Edward’s
reign, notably that of Westminster I.

-----

Under the protection of Edward I.—the last of the four great
master-builders of the constitution—the _Commune Concilium_ of the
Angevin kings (itself a more developed form of the Curia Regis of the
Conqueror and his sons) grew into the English Parliament. This implied
no sudden dramatic change, but a long slow process of adjustment, under
the guiding hand of Edward.

The main features of his scheme may be briefly summarized: Edward’s
conception of his position as a national king achieving national ends,
the funds necessary for effecting which ought to be contributed by the
nation, naturally led him to devise a system of taxation which would
fill the Exchequer while avoiding unnecessary friction with the
tax-payer. His problem was to keep his treasury full in the way most
convenient to the Crown, and at the same time to reduce to a minimum the
discontent and inconvenience felt by the nation at large under the
burden. In broadening the basis of taxation, he was led to broaden the
basis of Parliament; and thus he advanced from the feudal conception of
a _Commune Concilium_, attended only by Crown tenants, to the nobler
ideal of a national Parliament containing representatives of every
community and every class in England. The composition of the great
council was altered; the principle of representation known for centuries
before the Conquest in English local government, now found a home, and,
as it proved, a permanent home, in the English Parliament. It was
obvious that Parliament, whose composition was thus altered, must meet
more frequently than of old. Edward elevated the national council from
its ancient position of a mere occasional assembly reserved for special
emergencies, to a normal and honoured place in the scheme of government.
Henceforth, frequent sessions of parliament became a matter of course.

The powers of this assembly also widened almost automatically, with the
widening of its composition. Taxation was its original function, since
that was the primary purpose (so the best authorities maintain in spite
of some adverse criticism) for which the representatives of the counties
and the boroughs had been called to it. Legislation, or the right to
veto legislation, was soon added—although at first the new-comers had
only a humble share in this. The functions of hearing grievances and of
proffering advice had, even in the days of the Conqueror, belonged to
such of the great magnates as were able to make their voices heard in
the Curia Regis; and similar rights were gradually extended to the
humbler members of the augmented assembly. The representatives of
counties and of towns retained rights of free discussion even after
Parliament had split into two separate Houses. These rights, fortified
by command of the purse strings, tended to increase, until they secured
for the Commons some measure of control over the executive functions of
the king. This parliamentary control varied in extent and effectiveness
with the weakness of the king, with his need of money, and with the
political situation of the hour.

The new position and powers of Parliament logically involved a
corresponding alteration in the position and powers of the smaller but
more permanent council or _Concilium Ordinarium_ (the future Privy
Council). This had long been increasing in power, in prestige, and in
independence, a process quickened by the minority of Henry III. The
Council was now strengthened by the support of a powerful Parliament,
usually acting in alliance with the leaders of the baronial opposition.
The members of the Council were generally recruited from Parliament, and
their appointment as king’s ministers and members of the Curia was
strongly influenced by the proceedings in the larger assembly.

The Council thus became neutral ground on which the conflicting
interests of king and baronage might be discussed and compromised. Wild
schemes like that of chapter 61 of Magna Carta or like that typified in
the Committee appointed by the Mad Parliament in 1258, were now
unnecessary. The king’s own ministers, backed by Parliament, became an
adequate means of enforcing the constitutional restraints embodied in
royal Charters. The problem was thus, for the time being, solved. A
proper sanction had been devised, fit to change royal promises into
realities.

To sum up, Edward’s aim of ruling as a national king implied the
frequent assembling of a central parliament composed of individuals
fitted to act as links between the Crown and the various classes of the
English nation whom he expected to contribute to the national Exchequer.
It implied also that the national business should be conducted by
ministers likely to command the confidence of that parliament.[284]
Thus, Edward’s policy dimly foreshadowed some of the most fundamental
principles of modern constitutional government—parliament,
representation, ministerial responsibility. Edward Plantagenet was, of
course, far from realizing the full meaning of these conceptions, and if
he had realized it, he would have been most unwilling to accept them;
yet he was unconsciously helping forward the cause of constitutional
progress.

-----

Footnote 284:

The doctrine that the _Commune Concilium_ should have some voice in
the appointment of the Ministers of the Crown had indeed been acted
upon on several occasions even in the reign of Henry III. See Stubbs,
_Const. Hist._, II. 41.

-----

This temporary solution, during the reign of Edward I., of an
ever-recurring problem of government has been viewed in two different
aspects. It is sometimes regarded simply as the result of the pressure
of events—as a natural phenomenon evolved, subject to natural laws, to
meet the needs of the age. By other writers it is attributed to the
wisdom and conscious action of King Edward. The two views are perhaps
not so inconsistent as they at first sight seem, since great men work in
harmony with the spirit of their times, and appear to control events
which they only interpret and express. The bargain made at Runnymede
between the English monarch and the English nation found its necessary
counterpart and sanction, before the close of the thirteenth century, in
the conception of a king ruling through responsible ministers and in
harmony with a national Parliament. Edward Plantagenet was merely the
instrument by whose agency the new conception was for a time partially
realized. Yet, he merits the gratitude of posterity for his share in the
elaboration of a working scheme of government, which took the place of
the clumsy expedients designed as constitutional sanctions by the barons
in 1215. He supplied the logical complement of the theories vainly
enunciated in John’s Great Charter, thus changing empty expressions of
good intentions into accomplished facts. The ultimate triumph of the
principles underlying Magna Carta was assured through the constitutional
machinery devised by Edward Plantagenet.

PART V.

MAGNA CARTA: ORIGINAL VERSIONS, PRINTED EDITIONS, AND COMMENTARIES.

I. Manuscripts of Magna Carta and Relative Documents.

The barons who had forced the Great Charter on King John were determined
that its contents should be widely known and permanently preserved. It
was not sufficient that the great seal should be formally impressed upon
one parchment. Those who compelled John to submit were not content even
with the execution of its terms in duplicate or in triplicate, but
insisted that the great seal should be appended to many copies all of
practically identical terms and of equal authority. These were to be
distributed throughout the land, and to be preserved in important
strongholds and among the archives of the chapters of cathedral
churches.

I. _The extant original versions._ Of the many copies of the Charter
authenticated under John’s great seal, four have escaped the destroying
hand of time, and may still be examined by members of the public after
nearly seven centuries have passed. These four records are:

(1) _The British Museum Magna Carta, number one_—formally cited as
“Cotton, Charters XIII. 31A.” The recent history of this document is
well known. It was found among the archives of Dover Castle in the
seventeenth century; and not improbably it may have lain there for
centuries before, possibly from a date not much later than that of its
original execution; for the castle of Dover, like the Tower of London,
was a natural place for the preservation of documents of national value.
There it was discovered by Sir Edward Dering while warden of the castle,
and by him it was presented to Sir Robert Cotton, accompanied by a
letter dated 10th May, 1630.[285] It still forms an item in the
collection preserved in the British Museum, which bears the name of the
famous antiquary.

-----

Footnote 285:

This letter is also preserved in the British Museum, and cited as
“Cotton, Julius, C. III. Fol. 191.”

-----

In the great fire of 23rd October, 1731, which attacked the Cottonian
Library, this valuable Charter was seriously damaged and rendered in
parts illegible, while the yellow wax of the seal was partially melted.
It is possible that this accident has added somewhat to the prestige of
this particular copy of Magna Carta, which, like the three others still
extant, is written continuously, though with many contractions, in a
neat, running, Norman hand. A special characteristic of this version is
that some omissions seem to have been made in the body of the deed and
to have been supplied at the foot of the parchment. These are five in
number.[286] It is possible to regard them as corrections of clerical
omissions due to carelessness or hurry in engrossing the deed; but the
fact that one of the additions is distinctly in the King’s favour raises
a strong presumption that they embodied additions made as afterthoughts
to what had been originally dictated to the engrossing clerk, and that
they were inserted at the King’s suggestion before he would adhibit the
great seal.

-----

Footnote 286:

These are carefully noted among the variations described by the
editors of the Charters of Liberties forming Part I. of the first
volume of the _Statutes of the Realm_. These addenda are (1) at the
end of c. 48, “_per eosdem, ita quod nos hoc sciamus prius, vel
justiciarius noster, si in Anglia non fuerimus_,” providing that the
King should receive intimation of all forest practices branded as
“evil” before they are abrogated; (2) two small additions, near the
beginning of c. 53, (a), “_et eodem modo de justicia exhibenda_,” and
(b) “_vel remansuris forestis_”; (3) in c. 56, these four words, “_in
Anglia vel in Wallia_”; and (4) in c. 61 the words “_in perpetuum_”
after “_gaudere_.” In the 2nd British Museum MS. three of these
addenda appear at the foot, viz. (1), (2_a_) and (2_b_); but the words
of (3) and (4) are incorporated in the body of that MS.

-----

The importance of this document was recognized at a comparatively early
date, and a facsimile prepared by John Pine, a well-known engraver of
the day, some eighteen months after the great fire. The engraving bears
a certificate dated 9th May, 1733, narrating that the copy is founded on
the original, which had been shrivelled up by the heat; but that where
two holes had been burned, the obliterated words had been replaced from
the other version (to be immediately described), also preserved in the
Cottonian collection.

(2) _The British Museum Magna Carta, number two_—formally cited as
“Cotton, Augustus, II. 106.” The early history of this document is
unknown, but sometime in the seventeenth century it came into the
possession of Mr. Humphrey Wyems, and by him it was presented to Sir
Robert Cotton on 1st January, 1628–9. Unlike the other Cottonian copy,
this one is happily in an excellent state of preservation; but there is
no trace left of any seal.[287] Three of the five addenda inserted at
the foot of the copy previously described are found in a similar
position here; but the substance of the two others is included in the
body of the deed. On the left-hand margin, titles intended to be
descriptive of several chapters occur in a later hand.[288] Thus for the
preservation of two original copies of the national charter of liberties
the nation is indebted to Sir Robert Cotton, but for whose antiquarian
zeal they might both have been lost. Apparently, however, a story told
by several authors[289] as to the humiliating fate which threatened the
original Magna Carta must be rejected. Sir Robert, it is said,
discovered “the palladium of English liberties” in the hands of his
tailor at the critical moment when the scissors were about to transform
it into shapes for a suit of clothes. This is undoubtedly a fable, since
both manuscripts of Magna Carta in the Cottonian collection are
otherwise accounted for.

-----

Footnote 287:

“The fold and label are now cut off, though it is said once to have
had slits in it for two seals, for which it is almost impossible to
account; but Dr. Thomas Smith, in his Preface to the _Cottonian
Catalogue_, Oxford, 1695, folio, states that they were those of the
barons” (Thomson, _Magna Charta_, 425).

Footnote 288:

Reproductions of this copy are sold at the British Museum at 2s. 6d.
each.

Footnote 289:

See Isaac D’Israeli, _Curiosities of Literature_, I. 18, and Thomson,
_Magna Charta_, 424.

-----

(3) _The Lincoln Magna Carta._ This copy is under the custody of the
Dean and Chapter of the Cathedral, where it has undoubtedly lain for
many centuries. It has been suggested that Bishop Hugh of Lincoln,
canonized by the Roman Church, whose name appears in the list of
magnates consenting to John’s grant, may have brought it with him from
Runnymede on his return to Lincoln. The word “Lincolnia” is endorsed in
a later hand in two places at the back of the document on folds of the
parchment. It has no corrections or additions inserted at the foot, but
embodies in their proper places all those which occurred in the versions
already discussed. Further, it is executed with more flourishes and in a
more finished manner than these, and the inference is that it took
longer to engross. The Record Commissioners in preparing the _Statutes
of the Realm_ considered this version as of superior authority to any of
the others and have accordingly chosen it as the copy for their
engraving of Magna Carta published in 1810 in that valuable work, and
also in the first volume of their edition of Rymer’s _Foedera_ in
1816.[290]

-----

Footnote 290:

The engraving was executed to their order by James Basire.

-----

(4) _The Salisbury Magna Carta_—preserved in the archives of the
Cathedral there. The early history of this manuscript has not been
traced, but its existence was known at the close of the seventeenth
century.[291] Sir William Blackstone, in April, 1759,[292] instituted a
search for it, but without success—his inquiries being met with the
statement that it had been lost some thirty years before, during the
execution of repairs in the Cathedral library. As its disappearance had
really taken place during the tenure of the see by Gilbert Burnet, whose
antiquarian interests were well known, his political adversaries accused
him of appropriating it—an undoubted calumny, yet one to which some
colour was lent by facts to be hereafter explained. The document had not
been re-discovered in 1800 when the royal commission published its
report of the result of its inquiries for national records.[293] Two
sub-commissioners visited Salisbury in 1806 in search of it, but
obtained no satisfaction. It seems, however, to have been re-discovered
within the next few years, since it is mentioned in a book published in
1814,[294] and it is now exhibited to the public by order of the Dean
and Chapter of Salisbury Cathedral. It resembles the Lincoln copy both
in its beautiful leisurely writing and also in the absence of additions
at the bottom of the parchment.[295]

-----

Footnote 291:

See James Tyrrell, _History of England_, Vol. II. 821 (1697-1704).

Footnote 292:

Blackstone, _Great Charter_, p. xvii.

Footnote 293:

See _Report_ (1800), p. 341, containing the Return by the Chapter
Clerk of the Cathedral Church of Salisbury, dated 15th May, 1800.

Footnote 294:

Dodsworth, _Historical Account of the Cathedral_, 202.

Footnote 295:

It is unnecessary to treat in detail of the copies of the charter not
authenticated by John’s Great Seal, though some of these are of great
value as secondary authorities. The four most important are (_a_) a
copy appearing in the Register of Gloucester Abbey, (_b_) the Harleian
MSS., British Museum No. 746 (which also contains the names of the
twenty-five Executors in a hand probably of the reign of Edward I.),
(_c_) in the Red Book of the Exchequer. There is also (_d_) an early
French version, printed in D’Achery, _Spicilegium_, Vol. XII. p. 573,
together with the writ of 27th September addressed to the Sheriff of
Hampshire. See Blackstone, _Great Charter_, p. xviii., and Thomson,
_Magna Charta_, pp. 428-430.

-----

II. _Comparison of the Originals._ Prior to the publication of Sir
William Blackstone’s great work, extraordinary confusion seems to have
prevailed concerning the various Charters of Liberties. Not only was
John’s Magna Carta confused with the various re-issues by Henry; but
these latter were known only from an official copy of the Charter of
1225 contained in the confirming statute of the twenty-eighth year of
the reign of Edward I., known as an “Inspeximus,” because of the opening
word of the King’s declaration that he had seen the document of which he
gave a copy. Neither Madox[296] nor Brady[297] was aware of the
existence of any one of the four originals; and no mention is made of
them in the first edition of Rymer’s _Foedera_, which appeared in 1704.
Mr. Tyrrell indeed seems to have known of the second original copy in
the British Museum and also of the Salisbury version.[298] Mr. Care[299]
showed no clear knowledge of the various manuscripts, though he
mentioned the existence of several. Even Sir William Blackstone in 1759
collated only the two Cottonian copies, since he failed to find that of
Salisbury, and was unaware of the existence of the Lincoln
manuscript.[300]

-----

Footnote 296:

Thomas Madox, _Firma Burgi_ (1726). On p. 45, Madox refers only to the
_Inspeximus_ of Edward I.

Footnote 297:

Robert Brady, _Complete History of England_, p. 126 of Appendix to
Vol. I. (1685), takes his text of the Charter from Matthew Paris,
“compared with the manuscript found in Bennet College Library.”

Footnote 298:

James Tyrrell, _History of England_ (1697-1704). In p. 9 of Appendix
to Vol. II. p. 821, Tyrrell prints a text of John’s Charter founded on
that of M. Paris, collated with those two originals.

Footnote 299:

Henry Care, _English Liberties in the Freeborn subjects’ inheritance;
containing Magna Charta_, etc. (1719), p. 5. The first edition, with a
somewhat different title, is dated 1691.

Footnote 300:

Strangely enough, Sir Thomas Duffus Hardy, so recently as 1837, in
publishing his _Rotuli Chartarum_ (Introduction, p. ii. note 5)
declared that no original of John’s Charter existed. Many copies, he
knew, had been "made and deposited, for the sake of perpetuation, in
all the principal religious houses in the kingdom. However,
notwithstanding all the care taken by multiplication of copies, it is
singular that no contemporary copy of King John’s Magna Carta has yet
been found." The Lincoln MS. he dismissed as “certainly not of so
early a date,” while he confuses the only one of the British Museum
MSS. known to him with the Articles of the Barons. He further
reasserts the fallacy, so clearly exposed by Blackstone eighty years
earlier, that John had issued a separate _Carta de Foresta_.

-----

As these four versions are practically identical in their substance—the
variations being merely in the use of contractions or in other verbal
changes of a trivial character—no important question seems to be
involved in the discussion as to whether any one of them has greater
value than the others. The Record Commissioners considered that the
Lincoln copy was the first to be completed (and therefore that it
possessed special authority), because, unlike the two Cottonian copies,
it contained no insertions at the foot of the instrument. Yet it seems
more plausible to argue that this very immunity from clerical errors, or
from additions made after engrossment, proves that it was of later and
less hurried execution than the others, and therefore of less authority,
if any distinction is permissible. Mr. Thomson has much ground for his
contention in speaking of the fire-marked version in the British Museum
that “the same circumstances may probably be a proof of its superior
antiquity, as having been the first which was actually drawn into form
and sealed on Runnymede, the original whence all the most perfect copies
were taken.”[301]

-----

Footnote 301:

Thomson, _Magna Charta_, 422.

-----

In all printed texts of Magna Carta, the contents are divided into a
preamble and sixty-three chapters, and each chapter is numbered and
treated in a separate paragraph by itself. There is no warrant for this
in any one of the four originals, all of which run straight on from
beginning to end, like other feudal charters, and contain no numbers or
other indication where one provision ends and another begins. Strictly
speaking, Magna Carta has thus no chapters: these are a modern
invention, made for convenience of reference.

III. _The Articles of the Barons._ Of hardly inferior historical
interest to these four original copies of the Great Charter is the
parchment which contains the heads of the agreement made between John
and the rebels on 15th June, 1215, from which the Charter was afterwards
expanded. The parchment containing these heads, known as the Articles of
the Barons, is now in the British Museum, cited officially as “Donation
MSS. 4838.” The seven centuries which have passed over it have left
surprisingly few traces; it is quite legible throughout, and still bears
the impression of John’s great seal in brown wax. It is probable that
this document may have passed with other English records into the hands
of Prince Louis during the civil war which followed close on the
transaction at Runnymede; that it was handed over to the Regent William
Marshal in terms of the Treaty of Lambeth concluded in September, 1217;
and that thereafter it was deposited in Lambeth Palace, where it
remained until the middle of the seventeenth century. Archbishop Laud
seems to have been aware of its historical interest, as he placed it
among the more precious documents in his keeping. When threatened with
impeachment by the Long Parliament, he thought it prudent to set his
papers in order; and on 18th December, 1640, he dispatched for that
purpose to his episcopal palace, his friend Dr. John Warner, Bishop of
Rochester.

There was indeed no time to lose; a few hours later, Laud was committed
to the custody of Black-Rod, and an official messenger was sent by the
House of Lords to seal up his papers. Bishop Warner had, however,
escaped with the Articles of the Barons before this messenger arrived;
he kept it till he died, and at his death it passed to one of his
executors named Lee, and from him to his son Colonel Lee, who presented
it to Gilbert Burnet, afterwards Bishop of Salisbury and author of the
famous _History of His Own Time_. When the Salisbury Magna Carta
disappeared, Burnet was suspected of appropriating it to his own uses.
The grounds which gave some apparent weight to the misrepresentations of
his political opponents were that special facilities had been granted to
him to search public records in the prosecution of his historical
labours, and that as matter of fact he actually had in his
possession—quite lawfully, as we now know—the Articles of the Barons,
which was confused by the carelessness of early historians with Magna
Carta itself. The calumny was so widely spread that Burnet thought it
necessary formally to refute it, explaining that he had received the
Articles as a gift from Colonel Lee. “So it is now in my hands, and it
came very fairly to me.”

Bishop Burnet left it as a legacy to his son Sir Thomas Burnet; and on
his death it passed to his executor David Mitchell, whose permission to
print it Blackstone obtained in 1759. Shortly thereafter it was
purchased from Mr. Mitchell’s daughter by another great historian,
Philip, second Earl of Stanhope, and by him it was presented to the
British Museum in 1769. It is now exhibited to the public along with the
two Cottonian copies of Magna Carta. The Record Commissioners have
reproduced it in facsimile in _Statutes of the Realm_ in 1810, and also
in the _New Rymer_ in 1816.[302]

-----

Footnote 302:

Reproductions of it, as well as of the second Cottonian version of the
Charter, are sold by the authorities of the British Museum at the
price of 2s. 6d.

-----

The document begins with this headline: “_Ista sunt Capitula quae
Barones petunt et dominus Rex concedit._” Then the articles follow in 49
paragraphs of varying length, separate, but unnumbered, each new chapter
(unlike the chapters of Magna Carta, which run straight on as befits its
character as a charter) beginning a new line. The numbers which
invariably appear in all printed editions have no warrant in the
original.

A blank space sufficient for two lines of writing occurs between
paragraphs 48 and 49, indicating perhaps that the last chapter, which
contains the revolutionary provision for the appointment of the
twenty-five Executors, had been added as an after-thought. Chapters 45
and 46 are connected by a rude bracket, and a clause is added in the
same hand as the rest, but more rapidly, modifying the provisions of
both in the King’s favour. This, at least, is clearly an
after-thought.[303]

-----

Footnote 303:

_Cf. supra_, p. 47, and Blackstone, _Great Charter_, xvii.

-----

IV. _The so-called “unknown Charter of Liberties.”_ Among the French
archives there is preserved the copy of what purports to be a charter
granted by King John, but irregular in its form. This document is
preserved among the _Archives du Royaume_ in the _Section Historique_
and numbered J. 655.[304] A copy of this copy was discovered at the
Record Office in London by Mr. J. Horace Round in 1893, previous to
which date it seems to have been practically unknown to English
historians, although it had been printed by a French writer thirty years
earlier.[305] Mr. Round communicated his discovery of this “unknown
charter of liberties” to the _English Historical Review_, in the pages
of which there ensued a discussion as to its nature and validity,
inaugurated by him. Three theories were suggested: (_a_) Mr. Round
maintained that the document was a copy, in a mangled form perhaps, of a
charter actually granted in the year 1213 by King John to the northern
barons, containing concessions which they had agreed to accept in
satisfaction of their claims.[306] (_b_) Mr. Prothero preferred to view
it, not as an actually executed charter, given and accepted in
settlement of the various claims in dispute, but rather as an abortive
proposal made by the King early in 1215 and rejected by the barons.[307]
(_c_) Mr. Hubert Hall dismissed the document as a forgery, and described
it as "a coronation charter attributed to John by a French scribe in the
second decade of the thirteenth century"—probably between November,
1216, and March, 1217, when King Philip desired to prove that John had
committed perjury by breaking his promises, and had thereby forfeited
his right to the Crown of England.[308]

-----

Footnote 304:

See the account given by Mr. Hubert Hall, _English Historical Review_,
IX. 326.

Footnote 305:

Alexandre Teulet, _Layettes du Trésor_, I. p. 423 (1863).

Footnote 306:

_Engl. Hist. Rev._, VIII. 288-294.

Footnote 307:

_Ibid._, IX. 117-121.

Footnote 308:

_Ibid._, IX. 326-335.

-----

Mr. Hall describes the method of procedure adopted by the compiler of
this supposed forgery. Placing in front of him copies of Henry I.’s
Charter of Liberties and of Henry III.’s charters issued in 1216-17, he
proceeded to select from these sources whatever suited his purpose, and
thereafter “either by design or carelessness, or ignorance of English
forms, he altered the wording of both his originals so as to produce the
effect of a paraphrase interspersed with archaisms.” This extremely
ingenious theory is not entirely convincing. Not to insist on the number
of unproved inferences on which it is based, it seems to have one grave
defect—it ignores the absurdity of attempting to obtain credence for
such a clumsy composition, especially when it was well known that John
had never granted a coronation charter at all. Even if a skilful forger
could have utilized the document as the basis for a completed charter,
this would still have required the impress of John’s great seal to give
it validity. Such an imposture could not be seriously intended to impose
on any one.

A fourth theory may be suggested very tentatively, namely, that the
document in question is a copy of the actual schedule drawn up by the
barons previous to 27th April, 1215. That such a schedule existed we
know from the express declaration of Roger of Wendover,[309] who informs
us that it was sent to the King with the demand that his seal should be
forthwith placed to it, under threat of civil war. From this, it is safe
to infer that the schedule, as it left the barons’ hands, was ready for
execution; but lack of experience in drawing up Crown charters would
prevent them from producing an entirely regular instrument. They would
assuredly take as their model the charter of Henry I., which had helped
to give definiteness of aim to all their efforts. It would be necessary,
however, to bring this up to date, by additions which we might _a
priori_ expect to resemble the provisions afterwards adopted with more
elaboration in the agreement made at Runnymede. This schedule, then,
rapidly thrown together, would be likely to contain many of the
characteristics actually discovered by Mr. Hall in the document under
discussion. Such an identification of the “unknown Charter of Liberties”
with the schedule of 27th April, 1215, would explain all the features
emphasized by Mr. Hall—the archaisms, the erroneous style, and the
employment, first of the third person singular, and then of the first
person singular, instead of using throughout the first person plural
invariably used by John. It would also explain why the first half of the
parchment on which the “unknown charter” is written, contains a copy of
Henry I.’s charter, and why the two possess so many features in common.

-----

Footnote 309:

R. Wendover, III. 298, and _cf. supra_, p. 40.

-----

It would clearly be inadvisable to found any conclusions upon the terms
of a document, the nature and authenticity of which form the subject of
so many rival theories; but even if further investigation proves it to
be a forgery, a forgery of contemporary date may throw light on
otherwise obscure passages in genuine charters. One or two instances of
this will be found in the sequel.

II. Previous Editions and Commentaries.

Every general history of England and almost every book which has ever
appeared on English law has had something to say by way of commentary on
Magna Carta. It is perhaps for this very reason that exceedingly few
treatises have been devoted exclusively to its elucidation. While
edition after edition of the text of the Charter, or of its re-issues,
have appeared, few of these have been accompanied by explanations
however brief. The paucity of attempts to explain the meaning of the
Charter is almost more remarkable than the frequency with which the text
has been reproduced. Magna Carta is a document often printed, but seldom
explained.

I. _Printed Editions of the Text of Magna Carta._ Previous to 1759 even
the best informed writers on English history laboured under much
confusion in regard to the various charters of liberties. Few of them
seem to have been aware that fundamental differences existed between the
original charter granted by John and the re-issues of Henry III. Much of
the blame for this confusion must be borne by Roger of Wendover, who, in
his account of the transactions at Runnymede, incorporated, in place of
John’s Charter, the text of the two charters granted by Henry.[310]

-----

Footnote 310:

R. Wendover, III. 302-318.

-----

The early historians were content to rely either on this version or on
that contained in the _Inspeximus_ of Edward I. Thus, in all early
printed collections of statutes, the text which professes to represent
the original Charter follows in reality the words of Henry’s third
re-issue. The very earliest printed edition of Magna Carta seems to have
been that published on 9th October, 1499, by Richard Pynson, the King’s
printer,[311] and a contemporary of Wynkyn de Worde. This was not, of
course, John’s Charter, but followed Edward’s _Inspeximus_ of Henry’s
Charter of 1225.

-----

Footnote 311:

This date is given by Bémont, _Chartes_, lxxi., but Robert Watt in his
_Bibliotheca Britannica_, Thomson, _Magna Charta_, 450, and Lowndes,
_Bibliographer’s Manual_, 1449, all give the date of the earliest
edition as 1514. Bémont, lxxi., and Thomson, 450–460, Watt, and
Lowndes furnish details of the various editions of Pynson, Redman,
Berthelet, Tottel, Marshe, and Wight, from 1499 to 1618. All of these
are now superseded by the _Statutes of the Realm_, published by the
Record Commission in 1810.

-----

Since the middle of the eighteenth century, many editions of the text of
John’s Great Charter have been published, either alone or along with the
text of the various re-issues of the reign of Henry III.; but it seems
unnecessary to mention more than four of these.

(1) In 1759 appeared Sir William Blackstone’s scholarly work entitled
_The Great Charter and The Charter of the Forest_, containing accurate
texts of all the important issues of the Charters of Liberties carefully
prepared from the original manuscripts so far as these were known to
him.[312]

-----

Footnote 312:

The substance of this admirable edition, now unhappily scarce, has
been reproduced in the same author’s _Tracts_ (1762).

-----

(2) In some respects the Record Commissioners have improved even on
Blackstone’s work in their edition of the _Statutes of the Realm_,
published in 1810. A special section of the volume is devoted to
Charters of Liberties, where not only the grants of John and Henry III.,
but also the charters which led up to them, and their subsequent
confirmations, have received exhaustive treatment.

(3) A carefully revised text, _Magna Carta regis Johannis_, was
published by Dr. Stubbs in 1868; and the various charters are also to be
found, arranged in chronological order, in his well-known volume, first
published in 1870, entitled _Select Charters and other illustrations of_
_English Constitutional History_, a convenient collection easily
accessible to all students of law and history.

(4) For the continuous study of the sequence of charters, the best book
of reference is _Chartes de Libertés Anglaises_ by M. Charles Bémont
published in 1892, in the pages of which the various editions of John’s
and Henry’s charters will be found in a form convenient for comparison
with each other, and with previous and succeeding documents.

II. _Commentaries and Treatises._ It is doubtful whether any good
purpose would be served by the preparation of a list of all the books
which contain casual references to Magna Carta or to its provisions; and
it is clear that the task would be an extremely burdensome one. There is
no difficulty, however, in naming the few treatises of outstanding merit
which have been exclusively or mainly devoted to the exposition of the
Great Charter. Of these only nine require special mention.

(1) The mysterious medieval lawbook known as the _Mirror of Justices_
contains a chapter upon Magna Carta which has some claims to rank as a
commentary, although it represents the opinions of a political
pamphleteer rather than those of an unbiassed judge. The date of this
treatise is still the subject of dispute. It has been usual to place it
not earlier than the years 1307-27, mainly because it makes mention of
“Edward II.” Prof. Maitland, however, dates it earlier, maintaining on
general grounds that it was “written very soon after 1285, and probably
before 1290.”[313] He explains the reference to “Edward II.” as applying
to the monarch now generally known in England as Edward I., but
sometimes in his own reign known as Edward II., to distinguish him from
an earlier Edward, still enshrined in the popular imagination, namely,
Edward Confessor. Mr. Maitland is not disposed to treat this work of an
unknown author too seriously, and warns students against “his ignorance,
political bias, and deliberate lies.”[314]

-----

Footnote 313:

See _The Mirror of Justices_ (edited for the Selden Society by Prof.
Maitland), _Introd._, xxiii. to xxiv.

Footnote 314:

_Ibid._, xxxvii. _Cf._ xlviii.

(2) Dismissing the _Mirror_, then, as a dangerous and possibly
disingenuous guide, the earliest serious commentary known to exist is
that of Sir Edward Coke, formerly Lord Chief Justice. This elaborate
treatise, forming the second of Coke’s four _Institutes_, was published
in 1642 under direction of the Long Parliament, the House of Commons
having given the order on 12th May, 1641.[315]

-----

Footnote 315:

See _Dictionary of National Biography_, XI. 243.

-----

Although this commentary, like everything written by Coke, was long
accepted as a work of great value, its method is in reality entirely
uncritical and unhistorical. The great lawyer reads into Magna Carta the
entire body of the common law of the seventeenth century of which he was
admittedly a master. He seems almost unconscious of the great changes
accomplished by the experience and vicissitudes of the four eventful
centuries which had elapsed since the Charter had been originally
granted. The various clauses of Magna Carta are thus merely occasions
for expounding the law as it stood, not at the beginning of the
thirteenth century, but in his own day. In the skilful hands of Sir
Edward, the Great Charter is made to attack the abuses of James or
Charles, rather than those of John or Henry, which its framers had in
view. In expounding the _judicium parium_, for example, he carefully
explains many minute details of procedure before the Court of the Lord
High Steward, and describes elaborately the nature of the warrants to be
issued prior to the arrest of any one by the Crown; while, in the clause
of Henry’s Charter which secures an open door to foreign merchants in
England “unless publicly prohibited,” he discovers a declaration that
Parliament shall have the sole power to issue such prohibitions,
forgetful that the regulation of trade was an exclusive prerogative of
the Crown with which Parliament had no right to interfere for many
centuries subsequent to the reign of Henry III.

(3) In 1680 Mr. Edward Cooke, barrister, published a small volume
entitled _Magna Charta made in the ninth year of King Henry III. and
confirmed by King Edward I. in the twenty-eighth year of his reign_.
This contained a translation of Henry’s Magna Carta with short
explanatory notes founded mainly on the commentary of Sir Edward Coke.
In his Preface, Mr. Cooke declared that his object was to make the Great
Charter more accessible to the public at large, since, as he said, “I am
confident, scarce one of a hundred of the common people, know what it
is.”

(4) Sir William Blackstone’s _Introduction_ to his edition of the
charters, published in 1759, as already mentioned, contains valuable
information as to the documents he edits; but he explicitly disclaims
all intention of writing a Commentary. He is careful to state “that it
is not in his present intention, nor (he fears) within the reach of his
abilities, to give a full and explanatory comment on the matters
contained in these charters.”[316]

-----

Footnote 316:

Introduction, p. ii.

-----

(5) The Hon. Daines Barrington published in 1766 his _Observations upon
the Statutes from Magna Charta to 21 James I._ This book contains some
notes on the Charter also founded chiefly upon Coke’s _Second
Institute_; his original contributions are not of outstanding value.

(6) In 1772 Prof. Francis Stoughton Sullivan gave to the public his
course of lectures previously delivered in the University of Dublin
under the title _An Historical Treatise on the Feudal Law, with a
Commentary on Magna Charta_. The author’s own words give a sufficiently
accurate conception of its scope and value: “I shall therefore proceed
briefly to speak to _Magna Charta_, and in so doing shall omit almost
all that relates to the feudal tenures, which makes the greatest part of
it, and confine myself to that which is now law.”[317]

-----

Footnote 317:

See p. 375 of the work cited.

-----

(7) Mr. John Reeves’ invaluable _History of English Law_, the first
edition of which appeared in 1783-84, marked the commencement of a new
epoch in the scientific study of the genesis of English law. Treating
incidentally of Magna Carta, he shows wonderful insight into the real
purport of many of its provisions, but the state of historical knowledge
when he wrote rendered many serious errors inevitable.

(8) In 1829, Mr. Richard Thomson published an elaborate edition of the
charters combined with a commentary which contains much useful
information, but makes no serious attempt to supplement the unhistorical
explanations of Sir Edward Coke by the results of more recent
investigations in the provinces of law and history. His work is a
storehouse of information which must, however, be used with caution.

(9) In many respects, the most valuable contribution yet made to the
elucidation of the Great Charter is that contained in M. Charles
Bémont’s preface to his _Chartes des Libertés Anglaises_, published in
1892. Although he has subjected himself to the severe restraints imposed
by the slender size of his volume and by a rigid desire to state only
facts of an undisputed nature, leaving theories strictly alone; he has,
nevertheless, done much to help forward the study of the charters. In
particular he has performed an important service by insisting upon the
close mutual connection between the various Charters of Liberties, from
that of Henry I. down to the confirmations of Edward I., and of
subsequent kings. It is doubtful, however, whether by this very
insistence upon the gradual process of development which may be traced
in this long series, he does not lay himself open to the misconception
that he takes too narrow a view of the scope and relations of the
Charter. Magna Carta’s points of contact with the past and future
history of English liberties and English laws and institutions must not
be narrowed down to those occurring in one straight line. Its
antecedents must not be looked for exclusively among documents couched
in the form of charters, nor its results merely in their subsequent
confirmations. It is impossible to understand it aright, except in close
relation to all the varied aspects of the national life and the national
development. Every Act appearing on the Statute Rolls is, in a sense, an
Act amending Magna Carta; while such enactments as the Statute of
Marlborough and the Statute of Westminster I. have as intimate a
connection with John’s Great Charter as the _Confirmatio Cartarum_ or
the _Articuli super Cartas_ have. This is a truth which M. Bémont
undoubtedly recognizes, though the scheme of his book led him rather to
emphasize another and, at first sight, contradictory aspect of his
subject. His object was not to explain the numerous ways in which the
Charters of Liberties are entwined with the whole of English history,
but merely to furnish a basis for the accurate study of one of their
most important features. His book is indispensable, but is not intended
to form, in any sense, a commentary on Magna Carta.

It would thus appear that only two serious attempts have been made to
produce treatises forming, explicitly and exclusively, commentaries on
the Great Charter, namely the _Second Institute_ of Coke and the
laborious and useful work of Mr. Richard Thomson. Since Mr. Thomson’s
_Magna Charta_ appeared, three-quarters of a century have passed,
marking an enormous advance in historical and legal science; yet the
results of modern research, so capable of throwing light on the
subject-matter of the Great Charter, have never been systematically
brought to bear upon it. Dr. Stubbs, from whom such a work would have
been especially welcome, contented himself with giving a paraphrase or
abstract of the Charter, rendering into English equivalents as literally
as possible the actual words of his Latin text—a cautious course, which
cannot lead his disciples astray, but leaves them to the guidance of
their own ignorance rather than of his knowledge. The reason given by
Dr. Stubbs for keeping silence is rather the excess than the absence of
information. “The whole of the constitutional history of England,” he
tells us, “is little more than a commentary on Magna Carta.”[318] It is
for this reason, presumably, that he refrains from all explanations and
confines himself to an abstract of its main provisions. While thus many
invaluable hints may be obtained from the pages of the three volumes of
his history, and from his other works, Dr. Stubbs has not in any of his
published writings contributed anything of the nature of a direct
commentary upon John’s Great Charter. In this policy, he has been
followed by the members of the great modern school of English historians
of which he is the founder.[319]

-----

Footnote 318:

See _Const. Hist._, I. 572, and cf. _Select Charters_, 296.

Footnote 319:

One of the most brilliant members of that school, Mr. Prothero, whose
power of rendering difficult subjects both lucid and interesting would
specially have qualified him for the task of explaining Magna Carta,
declines the task partly upon the ground that it would be impossible
"to throw any new light on a subject exhausted by the ablest
writers."—_S. de Montfort_, p. 14.

-----

Many valuable hints may be obtained from other writers such as Dr.
Gneist, Sir Edward Creasy, Mr. Taswell Langmead, Dr. Hannis Taylor, Miss
Norgate, and Sir James Ramsay,[320] but their efforts to explain the
meaning of the Great Charter take the form of disconnected notes, rather
than of exhaustive commentaries.[321]

-----

Footnote 320:

The works of these and other authors are mentioned in the Appendix.

Footnote 321:

It is unnecessary to do more than mention _A Historical Treatise on
Magna Charta_ by Mr. Boyd C. Barrington, of the Philadelphia Bar
(1899), of which the author says (p. ii.): “No claim is made for
originality, but solely for research, which has been exhaustive in
every line I can pursue.” It is dismissed by his distinguished
fellow-countryman, Dr. Gross (_Sources and Literature of English
History_, p. 348), as “of little value.”

-----

TEXT, TRANSLATION, AND COMMENTARY.

MAGNA CARTA.

PREAMBLE.[322]

Johannes Dei gratia rex Anglie, dominus Hibernie, dux Normannie et
Aquitannie, et comes Andegavie, archiepiscopis, episcopis, abbatibus,
comitibus, baronibus, justiciariis, forestariis, vicecomitibus,
prepositis, ministris et omnibus ballivis et fidelibus suis salutem.
Sciatis nos intuitu Dei et pro salute anime nostre et omnium
antecessorum et heredum nostrorum, ad honorem Dei et exaltationem sancte
Ecclesie, et emendacionem regni nostri, per consilium venerabilium
patrum nostrorum, Stephani Cantuariensis archiepiscopi tocius Anglie
primatis et sancte Romane ecclesie cardinalis, Henrici Dublinensis
archiepiscopi, Willelmi Londoniensis, Petri Wintoniensis, Joscelini
Bathoniensis et Glastoniensis, Hugonis Lincolniensis, Walteri
Wygorniensis, Willelmi Coventriensis, et Benedicti Roffensis
episcoporum; magistri Pandulfi domini pape subdiaconi et familiaris,
fratris Aymerici magistri milicie Templi in Anglia; et nobilium virorum
Willelmi Mariscalli comitis Penbrocie, Willelmi comitis Sarresburie,
Willelmi comitis Warennie, Willelmi comitis Arundellie, Alani de
Galeweya constabularii Scocie, Warini filii Geroldi, Petri filii
Hereberti, Huberti de Burgo senescalli Pictavie, Hugonis de Nevilla,
Mathei filii Hereberti, Thome Basset, Alani Basset, Philippi de
Albiniaco, Roberti de Roppeleia, Johannis Mariscalli, Johannis filii
Hugonis et aliorum fidelium nostrorum.

-----

Footnote 322:

The division of Magna Carta into a preamble and sixty-three chapters
is a modern device, for convenience of reference, for which there is
no warrant in the Charter itself. Cf. _supra_, 200. No title or
heading precedes the substance of the deed in any one of the four
known originals, but on the back of the Lincoln one (cf. _supra_, 197)
these words are endorsed;—“_Concordia inter Regem Johannem et Barones
pro concessione libertatum ecclesie et regni Anglie_.” The form of the
document is discussed _supra_, 123-9. The text is taken from that
issued by the Trustees of the British Museum founded on the Cottonian
version No. 2. Cf. _supra_, 196.

John, by the grace of God, king of England, lord of Ireland, duke of
Normandy and Aquitaine, and count of Anjou, to the archbishops,
bishops, abbots, earls, barons, justiciars, foresters, sheriffs,
stewards, servants, and to all his bailiffs and liege subjects,
greeting. Know that, looking to God and for the salvation of our soul,
and those of all our ancestors and heirs, and unto the honour of God
and the advancement of holy Church, and for the reform of our realm,
[we have granted as underwritten][323] by advice of our venerable
fathers, Stephen, archbishop of Canterbury, primate of all England and
cardinal of the holy Roman Church, Henry archbishop of Dublin, William
of London, Peter of Winchester, Jocelyn of Bath and Glastonbury, Hugh
of Lincoln, Walter of Worcester, William of Coventry, Benedict of
Rochester, bishops; of master Pandulf, subdeacon and member of the
household of our lord the Pope, of brother Aymeric (master of the
Knights of the Temple in England), and of the illustrious men,[324]
William Marshall, earl of Pembroke, William, earl of Salisbury,
William, earl Warenne, William, earl of Arundel, Alan of Galloway,
(constable of Scotland), Waren Fitz Gerald, Peter Fitz Herbert, Hubert
de Burgh (seneschal of Poitou), Hugh de Neville, Matthew Fitz Herbert,
Thomas Basset, Alan Basset, Philip of Albini, Robert of Ropesle, John
Marshall, John Fitz Hugh, and others, our liegemen.

-----

Footnote 323:

The sentence is concluded in chapter one (see _infra_)—the usual
division, here followed, being a purely arbitrary one.

Footnote 324:

The phrase “_nobiles viri_” was not used here in any technical sense;
the modern conception of a distinct class of “noblemen” did not take
shape until long after 1215. Cf. what is said of “peerage” under cc.
14 and 39.

-----

The Great Charter of John opens, in the form common to all royal
charters of the period, with a greeting from the sovereign to his
magnates, his officials, and his faithful subjects, and announces, in
the pious legal formula used by impious and pious kings alike, that he
had made certain grants by the advice of those counsellors whom he
names. Three features of this preamble call for comment.

I. _The King’s Title._ Some points of interest are suggested by the form
of the royal style adopted by John, which is connected by an unbroken
thread of development with that of William I. on the one hand, and of
His Majesty, Edward VII., on the other. John’s assumption of the royal
plural “_Sciatis Nos_” reads, in the light of subsequent history, as a
tribute to his arrogance rather than to his greatness, when compared
with the humbler first person singular consistently used by his more
distinguished father. In this particular, however, Richard, not John,
had been the innovator on the usage of Henry II.[325] For a further
alteration in the royal style John was alone responsible. To the titles
borne by his father and brother, John invariably added that of “lord of
Ireland,” a reminiscence of his youth. When the wide territories of
Henry II., had been distributed among his elder sons, the young John
(hence known as “John Lackland”) was left without a heritage, until his
father bestowed on him the island of Ireland, recently appropriated; and
this brought with it the right to style himself “_dominus Hibernie_.”
This title of his younger days was not unnaturally retained by him after
he had outlived all his brothers and inherited their wide lands and
honours.

-----

Footnote 325:

Coke (_Second Institute_, pp. 1-2) is here in error; he makes John the
innovator.

-----

John began his reign in 1199 as ruler over the undivided possessions of
the House of Anjou at their widest stretch, extending without a break,
other than the waters of the Channel, from the Cheviots to the Pyrenees.
These lands were held by John, as by his father, under a variety of
titles and conditions. Anjou, the original home and fief of the
hot-blooded Plantagenet race, still carried with it only the modest rank
of count. In addition to this paternal title, Henry II. had, at an early
age, become duke of Normandy in his mother’s right, and thereafter duke
of Aquitaine by marriage with Eleanor, its heiress. These three great
fiefs were held by Henry and his sons under the king of France as their
lord paramount. Long before 1215, John’s bad fortune or incompetence had
lost to him these wide continental dominions except the most distant of
them all, his mother’s dowry of Aquitaine. His ancestral domains of
Anjou and Normandy had been irretrievably lost, but he still retained
their empty titles; and in this his son Henry III. followed him,
grasping the shadow long after the substance had fled. Entries relating
to Gascony frequently appear on the Rolls of Parliament of Edward I.;
and the kings of England were styled dukes of Aquitaine, dukes of
Guienne, or dukes of Gascony (the three descriptions being used
indifferently) until Edward III. merged all these titles in a wider one,
when he claimed the throne of France.

England alone, of John’s possessions, real and nominal, was held by the
higher style of “_Rex_,” implying strictly sovereign rule, independent
of any overlord, and retained by John in 1215 in spite of his recent
acceptance of Innocent III. as feudal overlord. Of Ireland, John was
still content to describe himself, as formerly, “lord,” not king. The
exact meaning of the word “_Dominus_” in medieval charters, particularly
in those of Stephen, has been made the subject of much learned
controversy; which has not yet resulted in a consensus of opinion as to
the technical meaning, if any, borne by the word.[326] “_Dominus_,”
indeed, seems to have been loosely used wherever something of substance
or of ceremonial was lacking from the full sovereignty implied in the
more specific name of king. In this connection much stress was laid on
the solemn sacrament of coronation, implying among other things formal
consecration by the church.[327]

Footnote 326:

Various theories will be found in Round’s _Geoffrey de Mandeville_,
70; Dr. Rüssler’s _Matilde_, 291–4; and Ramsay’s _Foundations of
England_, II. 403.

Footnote 327:

Cf. _supra_, p. 119.

-----

John’s connection with England, then, is expressed in two simple words,
“_Rex Anglie_,” no explanation being vouchsafed of how he had acquired
this title. Such vindication, indeed, was not called for, as this was no
coronation charter, John having already reigned for fifteen years
without any serious rival—the claims of Arthur, the son of his elder
brother Geoffrey, never having been taken seriously in England.[328] The
simple words, “_Dei gratia rex Anglie_,” may be contrasted with the
detailed titles set out in the coronation charters of Henry I. and
Stephen respectively. Henry I. in 1100 had emphasized his relationship
to preceding kings, describing himself as “_Filius Willelmi regis post
obitum fratris sui Willelmi, Dei gracia rex Anglorum_”;[329] while
Stephen in April, 1136, in his second and more deliberate charter, used
an entirely different formula, “_Dei gracia assensu cleri et populi in
regem Anglie electus, et a Willelmo Cantuarensi archiepiscopo et sancte
Romane ecclesie legato consecratus, et ab Innocentio sancte Romane sedis
pontifice postmodum confirmatus_,”[330] the laboured nature of which
betrays the consciousness of weakness.

-----

Footnote 328:

Geoffrey’s daughter Eleanor was in 1215, a prisoner in Corfe Castle.
See _infra_, c. 59.

Footnote 329:

See Appendix.

Footnote 330:

See Appendix.

-----

Thus Henry I. and Stephen each laid stress on the strong points of his
title and ignored its defects. These two claims of kingship express, in
a crude form, two rival theories of the title to the English Crown—(1)
hereditary succession, and (2) election. Neither of these is an accurate
reflection of the full theory and practice of the twelfth century, which
blended both principles in proportions not easy to define with accuracy.
Professor Freeman has pushed to excess the supposed right of the
Witenagemot to elect the king, and has transferred wholesale to the
Norman _Curia_ (which, in some respects, took its place) all the powers
enjoyed by its forerunner. A recent German writer, Dr. Oskar
Rössler,[331] has gone equally far in the opposite direction, flatly
denying that the Normans ever admitted the elective element at all. The
theory now usually held is a mean between these extremes, namely that
the Norman _Curia_ (or the chief magnates who usually composed it) had a
limited right of selecting among the sons, brothers, or near relations
of the last king, the individual best suited to succeed him. Such a
right, never authoritatively enunciated, gradually sank to an empty
formality. Its place was taken, to some extent, by the successful
assertion by the spiritual power (usually represented by the archbishop
of Canterbury), of a claim to give or withhold the consecrating oil
which accompanied the church’s blessing. Without this no _dominus_ could
be recognized as _rex_. On this theory the descriptions of their own
titles given by Henry I. and Stephen were alike incomplete: each ignored
the facts which did not suit him. John, on the contrary, secure in
possession, condescends on no particulars, but contents himself with the
terse assertion of the fact of his kingship: “_Johannes, dei gratia, Rex
Anglie_.”

-----

Footnote 331:

_Matilde_, _passim_.

-----

II. _The Names of the Consenting Nobles._ It was natural that the
Charter should place formally on record the assent of those counsellors
who attended John when he made terms with his enemies, of those magnates
who remained in at least nominal allegiance, and were therefore capable
of acting as the mediators by whose good offices peace was for a time
restored.[332] The leading men in England during this crisis may be
arranged in three groups: (1) the leaders of the great host openly
opposed to John at Runnymede; (2) the agents of John’s oppressions,
extreme men, mostly aliens, many of whom were in command of royal
castles or of mercenary levies ready to take the field; and (3) moderate
men, mostly churchmen or John’s ministers or relations, who, whatever
their sympathies might be, remained in allegiance to the king and helped
to arrange terms of peace—a comparatively small band, as the paucity of
names recited in Magna Carta testifies.[333] The men, here made
consenters to John’s grant of Magna Carta, are again referred to, though
not by name, in chapter 63, in the character of witnesses.

-----

Footnote 332:

Dr. Stubbs, _Const. Hist._, I. 582, gives the motive of thus naming
them as “the hope of binding the persons whom it includes to the
continued support of the hard-won liberties.” Those named were all
moderate men. M. Paris (_Chron. Maj._ II., 589) describes them as
“_quasi ex parte regis_,” while Ralph of Coggeshall (p. 172) narrates
how “by the intervention of the Archbishop of Canterbury, with a few
of his bishops and some barons, a kind of peace was made.” Cf. _Annals
of Dunstable_, III. 43. The neutrality of the prelates is proved by
other evidence. (_a_) C. 62 gave them authority to certify by letters
testimonial the correctness of copies of the Charter. (_b_) The 25th
of the Articles of the Barons left to their decision whether John
should enjoy a crusader’s privileges; while c. 55 gave Langton a
special place in determining what fines were unjust. (_c_) The Tower
of London was placed in the custody of the archbishop as a neutral man
whom both sides could trust. (_d_) Copies are preserved of two
protests on different subjects by the prelates in favour of the king.
See Appendix.

Footnote 333:

Cf. _supra_, 43–4, and for biographical information see authorities
there cited.

-----

III. _The Reasons of the Grant._ The preamble contains also a statement
of what purport to be John’s reasons for conceding the Charter. These
are quaintly paraphrased by Coke:[334] "Here be four notable causes of
the making of this great charter rehearsed. 1. The honour of God. 2. For
the health of the King’s soul. 3. For the exaltation of holy church, and
fourthly, for the amendment of the Kingdom." The real reason must be
sought in another direction, namely, in the army of the rebels; and John
in after days did not scruple to plead consent given under threat of
violence, as a reason for voiding his grant. The technical legal
“consideration,” the _quid pro quo_ which John received as the price of
this confirmation of their liberties was the renewal by his opponents of
the homage and fealty which they had solemnly renounced. This
“consideration” was not stated in the charter, but the fact was known to
all.[335]

-----

Footnote 334:

_Second Institute_, 1, n.

Footnote 335:

Cf. _supra_, 41.

-----

CHAPTER ONE.

In primis concessisse Deo et hac presenti carta nostra confirmasse, pro
nobis et heredibus nostris in perpetuum, quod Anglicana ecclesia libera
sit, et habeat jura sua integra, et libertates suas illesas; et ita
volumus observari; quod apparet ex eo quod libertatem electionum, que
maxima et magis necessaria reputatur ecclesie Anglicane, mera et
spontanea voluntate, ante discordiam inter nos et barones nostros motam,
concessimus et carta nostra confirmavimus, et eam obtinuimus a domino
papa Innocencio tercio confirmari; quam et nos observabimus et ab
heredibus nostris in perpetuum bona fide volumus observari.[336]
Concessimus eciam omnibus liberis hominibus regni nostri, pro nobis et
heredibus nostris in perpetuum, omnes libertates subscriptas, habendas
et tenendas eis et heredibus suis, de nobis et heredibus nostris.

-----

Footnote 336:

Some editions of the Charter place here the division between c. 1 and
c. 2.

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 did 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 our heirs forever, all the underwritten
liberties, to be had and held by them and their heirs, of us and our
heirs forever.

This first of the sixty-three chapters of Magna Carta here places side
by side, bracketed equal as it were, (_a_) a general confirmation of the
privileges of the English national church, and (_b_) a declaration that
the various civil rights to be afterwards specified in detail were
granted “to all freemen” of the kingdom and to their heirs for ever. The
manner of this juxtaposition of the church’s rights with the lay rights
of freemen, suggests an intention to make it clear that neither group
was to be treated as of more importance than the other. If the civil and
political rights of the nation at large occupy the bulk of the Charter,
and are defined in their minutest details, the church’s rights, of which
no mention whatever had been made in the Articles of the Barons, receive
here a prior place.[337] A twofold division thus suggests itself.

-----

Footnote 337:

Cf. _supra_, p. 50.

-----

I. _The rights of the National Church._ A general promise that the
English church should be free was accompanied by a special confirmation
of the separate charter recently granted guaranteeing freedom of
canonical election. (1) _Quod Anglicana ecclesia libera sit._ This
emphatic, if vague declaration, which has no counterpart in the Articles
of the Barons, is repeated twice in Magna Carta, each time in a
prominent position, at the beginning and the end respectively. If the
work of the barons showed no special tenderness for churchmen’s
privileges, Stephen Langton and his bishops were careful to have that
defect remedied in the formal document by which John expressed his final
consent. In extorting this promise of a “free” English church, the
prelates seem to have been satisfied that they need ask for nothing
more; the other particulars in which the Charter differs from its draft
show no trace of clerical bias. The phrase used, indeed, was deplorably
vague and elastic; it scarcely needed stretching to cover the widest
encroachments of clerical arrogance. Yet the formula was by no means a
new one; Henry I. and Stephen had successively confirmed the claim of
holy church to its freedom.[338]

-----

Footnote 338:

See these charters in Appendix.

Henry II. was careful to avoid making any such promises: his whole reign
was an effort, not unsuccessful in spite of the terrible disadvantage at
which he was placed by the murder of Becket, to deprive the church of
what her leaders considered her legitimate “freedom.” John in 1215,
however, receded from the ground occupied by his father, confirming by
the Great Charter the promise given by the weakest of his Norman
predecessors, in a phrase repeated in all subsequent confirmations.

It by no means follows that “freedom of the church,” as promised by
Stephen, meant exactly the same thing as “freedom of the church”
promised by John and his successors.[339] The value to be attached to
such assurances varied in inverse ratio to the strength of the kings who
made them, and this is well illustrated by a comparison of the charters
of Henry I., Stephen, and John. Henry qualifies the phrase by words
which illustrate if they do not limit its application. God’s holy church
was to be free “_so that_ I shall neither sell nor let to farm, nor on
the death of archbishop, bishop, or abbot, accept anything from the
demesne of the church or from its tenants, until his successor has
entered into possession.”[340] This suggests a somewhat narrow
interpretation of the church’s freedom—exemption mainly from the
iniquities of Rufus. Stephen’s charter, on the contrary, explains or
supplements the same phrase by definite declarations that the bishops
should have sole jurisdiction over churchmen and their goods, and that
all rights of wardship over church lands were renounced, thus making it
a “large and dangerous promise.”[341]

-----

Footnote 339:

It is perhaps worthy of note that while the charters of Henry I. and
Stephen spoke only of “holy church,” John speaks of the “English
church.” This change suggests a growth of patriotism among the
prelates, led by Stephen Langton.

Footnote 340:

Cf. _supra_, 117.

Footnote 341:

Cf. Pollock and Maitland, I. 74.

“Freedom of the church” had thus come in 1136 to include “benefit of
clergy” in a specially sweeping form, and much besides.[342] It is easy
to understand why churchmen cherished an elastic phrase which, wide as
were the privileges it already covered, might readily be stretched
wider. Laymen, on the contrary, contended for a more restrictive
meaning; and the Constitutions of Clarendon must be viewed primarily as
an attempt to arrive at definite conclusions on disputed points of
interpretation. Henry II. substantially held his ground, in spite of his
nominal surrender after Becket’s murder. Thanks to his firmness, "the
church’s freedom" shrank to more reasonable proportions, so that the
well-known formula, when repeated by John, was emptied of much of the
content found in it by Stephen’s bishops. If it still implied “benefit
of clergy” that phrase was now read in a more restricted sense, while
wardship over vacant sees was expressly reserved to the Crown by John.
Chapter 18 of Magna Carta accepted, apparently with the approval of all
classes, the principle that questions of church patronage (assizes of
darrein presentment)[343] should be settled before the King’s Justices,
a concession to the civil power inconsistent with the more extreme
interpretations formerly put by churchmen on the phrase.[344]

-----

Footnote 342:

Cf. _supra_, 120–1.

Footnote 343:

For explanation see _infra_, c. 18.

Footnote 344:

On the other hand c. 22, which lays down special rules for the
amercement of beneficed clerks, to that extent confirmed class
privileges of the clergy.

-----

In later reigns the pretensions of the church to privileged treatment
were gradually reduced to narrow bounds, and the process of compression
was facilitated by that very elasticity on which the clergy had relied
as being favourable to the expansion of their claims. It was the civil
government which benefited in the end from the vagueness of the words in
which Magna Carta declared _quod Anglicana ecclesia libera sit_.[345]

-----

Footnote 345:

Mr. J. H. Round (_Geoffrey de Mandeville_, 3), speaking of Stephen’s
“oath” to restore the church her “liberty,” describes this as “a
phrase the meaning of which is well known.” If “well” known, it was
known chiefly as something vague, something which baffled definition,
because churchmen and laymen could never agree as to its contents,
while it tended also to vary from reign to reign. Mr. Round attempts
no definition. Sir James Ramsay (_Angevin Empire_, p. 475), writing of
the phrase as used in John’s Charter, is less prudent. "It would
relieve the clergy of all lay control, and of all liability to
contribute to the needs of the State beyond the occasional scutages
due from the higher clergy for their knights’ fees." This definition
assuredly would not have satisfied Henry I., as a legitimate
interpretation of the words as used by him in his Charter of
Liberties.

(2) _Canonical election._ A separate charter to the national church had
been granted on 21st November, 1214, and re-issued on 15th January,
1215.[346] Its tenor may be given in three words, “freedom of election.”
In all cathedral and conventual churches and monasteries, the
appointment of prelates was to be free from royal intervention for the
future, provided always that licence to fill the vacancy had first been
asked of the king. Now, _in words_, this was no new concession, but
merely a confirmation of the Concordat arrived at long before between
Henry I. and archbishop Anselm as a solution of the rival claims of
Church and State in the election of bishops and abbots.[347] The essence
of that arrangement had been to vest solely in the canons of the chapter
of the vacant diocese the nominal right to appoint the new bishop,
subject, however, to the actual election taking place in the royal court
or chapel—so that the king, being present, might endeavour to prevent
the appointment of any churchman he objected to. The result had not been
what Anselm and the papal court expected; Henry I. and his successors
strenuously used or abused the influence thus reserved to them: none but
royal favourites were ever appointed, and the nominally free canonical
election became a sham. Churchmen had long desired to remedy this:
Langton saw his opportunity, and on 21st November, 1214, secured from
King John, so far as mere words could secure anything, that the right of
election by the canons of the chapter should henceforth be transformed
from a pretence into a reality. The bishops present at Runnymede used
their influence to have a distinct confirmation of this recent
concession inserted in the very forefront of Magna Carta.

-----

Footnote 346:

Cf. _supra_, p. 39. The text will be found in _Statutes of the Realm_,
I. 5, and in _New Rymer_, I. 126-7. It was confirmed by Innocent on
30th March, 1215. See Potthast, _Regesta pontificum romanorum_, No.
4963.

Footnote 347:

Cf. _supra_, p. 22.

-----

Their forethought was insufficient permanently to prevent royal
influence from bending canonical election to its will. Henry III.,
indeed, in his reissues was made to repeat the phrase _quod Anglicana
ecclesia libera sit_, but omitted all reference alike to canonical
election and to the charters of 21st November, 1214, and 15th January,
1215. Later in his reign, he took advantage of this, with the Pope’s
connivance or support, to reduce again the rights of cathedral chapters
in the appointment of bishops to the sinecure they had been before.

It is true that Henry III. was prone, alike by nature and from policy,
to lean on the papal arm, and that the _Curia_ at Rome rather than the
_Curia Regis_ for a time dominated the appointment to vacant sees. Henry
and Innocent IV. indeed formed a tacit alliance for dividing all fat
livings among their respective creatures, king’s men or pope’s men, who
had little interest in England or its welfare. Edward I., impatient of
foreign dictation as he was, had to submit to a partial continuance of
“provisions” for hangers-on of the papacy in his insular domains; but
the national church had little to gain. The canons elected the nominee
of king or pope, as each was, for the moment, in the ascendant.[348]

-----

Footnote 348:

Cf _supra_, p. 167.

-----

An interesting, if purely academic, question might be raised as to how
far the rights guaranteed by Magna Carta to the English church were
meant to imply freedom from papal as well as from royal interference. It
is clear that the movement which culminated in the charter of 21st
November, 1214, originated in England, not at Rome; and apparently
Nicholas, the papal legate at that date, opposed the endeavours of
Stephen Langton to obtain it. The archbishop indeed looked upon the
legate as the chief obstacle to the reform by the king of the grievances
of the national church.[349] In spite of Magna Carta, then, the
independence of the national church retrograded, rather than advanced,
during the long alliance between Henry III. and the successive occupants
of the papal throne.[350]

-----

Footnote 349:

See Miss Norgate, _John Lackland_, p. 208, and authorities there
cited.

Footnote 350:

Cf. Prothero, _Simon de Montfort_, p. 152. “The English church was
indeed less independent of the king in 1258 than in 1215, and far less
independent of the Pope than in the days of Becket.”

-----

II. _Civil and Political Rights._ After providing thus briefly for the
church, chapter one proceeds to give equal prominence, but at greater
length, to the grant or confirmation of secular customs and liberties.
This takes here the form of a general enacting clause, leaving details
to be specified in the remaining sixty-two chapters of the Charter. Some
of the more important points involved have already been discussed in the
Historical Introduction—for example, the feudal form of the grant,
better suited, according to modern ideas, to the conveyance of a
specific piece of land, than to the securing of the political and civil
liberties of a mighty nation; and the vexed question as to what classes
of Englishmen were intended, under the description of “freemen,” to
participate in these rights.[351]

-----

Footnote 351:

See _supra_, pp. 128-9 and 141-2. For the meaning of “freeman” and
Coke’s inclusion of villeins under that term for some purposes but not
for others, see _infra_, cc. 20 and 39.

-----

Another interesting point, though of minor importance, calls for
separate treatment. John does not state that his grants of civil and
political rights had been made spontaneously. Whether deliberately or
not, there is here a marked distinction between the phraseology applied
to secular and to ecclesiastical rights respectively. While the
concessions to churchmen are said to have been granted “_mera et
spontanea voluntate_,” no such statement is made about the concessions
to the freemen. John may have favoured this omission as strengthening
his contention that the Great Charter had been sealed by him under
compulsion. In the third re-issue of Henry III. (1225) this defect was
remedied—the words “_spontanea et bona voluntate nostra_” being used in
its preamble.[352] Some importance seems to have been attributed to this
addition, which formed the essence of a concession bought by the
surrender of one-fifteenth of the moveable property of all estates of
the realm.

-----

Footnote 352:

Cf. _supra_, p. 181.

-----

CHAPTER TWO.

Si quis comitum vel baronum nostrorum, sive aliorum tenencium de nobis
in capite per servicium militare, mortuus fuerit, et cum decesserit
heres suus plene etatis fuerit et relevium debeat, habeat hereditatem
suam per antiquum relevium; scilicet heres vel heredes comitis de
baronia comitis integra per centum libras; heres vel heredes baronis de
baronia integra per centum libras; heres vel heredes militis de feodo
militis integro per centum solidos ad plus; et qui minus debuerit minus
det secundum antiquam consuetudinem feodorum.

If any of our earls or barons, or others holding of us in chief by
military service shall have died, and at the time of his death his
heir shall be of full age and owe “relief,” he shall have his
inheritance on payment of the ancient relief, namely the heir or heirs
of an earl, £100 for a whole earl’s barony; the heir or heirs of a
baron, £100 for a whole barony; the heir or heirs of a knight, 100s.
at most for a whole knight’s fee; and whoever owes less let him give
less, according to the ancient custom of fiefs.

All preliminaries concluded, the Charter at once attacked what was, in
the barons’ eyes, the chief of John’s abuses, his arbitrary increase of
feudal obligations. The Articles of the Barons, indeed, had plunged at
once into this most crucial question without a word by way of pious
phrases or legal formulae, such as were necessary in a regular Charter.

I. _Assessment of Beliefs._ Each “incident” had its own special
possibilities of abuse, and the Great Charter deals with each of these
in turn. The present chapter defines the reliefs to be henceforth paid
to John.[353] The vagueness of the sums at first was a natural corollary
of the early doubts as to whether the hereditary principle was
absolutely binding or not. The heir with title not yet recognized was
keen to come to terms. The lord took as much as he could grind from the
inexperience or timidity of the youthful heir; the heir tried to profit
from the good nature or temporary embarrassments of the lord. All was
vague; and such vagueness favoured the strongest or most wily.

-----

Footnote 353:

Cf. _supra_, p. 73.

-----

A process of definition, however, was early at work; and progressed,
though slowly. Public opinion set limits of variation, to go beyond
which was considered unreasonable or even indecent. Some conception of a
“reasonable relief” was evolved. Yet the criterion varied: the Crown
might defy rules binding on others. Henry I., indeed, when bidding
against duke Robert in 1099 for the throne showed himself willing, in
words if not in practice, to accept the limits set by contemporary
opinion. His Charter of Liberties promised that all reliefs should be
_justa et legitima_—an elastic phrase no doubt, and one in after days
liberally interpreted by the exchequer officials in their royal master’s
favour. By the end of the twelfth century, when Glanvill wrote, the
exact sums which could be taken by mesne lords had been fixed; although
the Crown remained free to exact higher rates. _Baroniae capitales_, he
tells us, were charged relief, not at a fixed rate, but at sums which
varied _juxta voluntatem et misericordiam domini regis_.[354]

-----

Footnote 354:

Glanvill’s words (IX. c. 4) are unfortunately ambiguous. He
distinguishes three cases: (_a_) the normal knight’s fee, from which
100s. was due as relief (whether this extends to fees of crown tenants
does not appear); (_b_) socage lands, from which one year’s rent might
be taken; and (_c_) “_capitales baroniae_,” which were left subject to
reliefs at the king’s discretion. Now “barony” was a loose word:
baronies, like barons, might be small or great (cf. _infra_, c. 14);
all crown fiefs being “baronies” in one sense, but only certain larger
“honours” being so reckoned in another. Glanvill leaves this vital
point undetermined, but evidence from other sources makes it probable
that even smaller crown holdings should for this purpose be classed
under his _capitales baroniae_, and not with knights’ fees held from
mesne lords. Two passages from the _Dialogus de Scaccario_ (II. x. E.
p. 135 and II. xxiv. p. 155) clearly support the distinction between
all crown tenants (small as well as great) on the one hand, and
tenants of mesne lords on the other: only the latter had their reliefs
fixed, while the former were at the king’s discretion. (The second
passage shows how the exchequer officials held the onus of proof to
lie on the heir to a crown fief to show that he was worthy to succeed
his father, and suggests rich gifts to the king as the best form of
proof.) Madox (I. 315-6) cites from the Pipe Rolls large sums exacted
by the crown. Usually the number of knights’ fees paid for is not
specified, but in one case a relief of £300 was paid for six fees—that
is, at the rate of £50 per fee, or exactly ten times what a mesne lord
could have exacted. (See Pipe Roll, 24 Henry II., cited by Madox,
_ibid._) There is further evidence to the same effect: where a barony
had escheated to the crown, reliefs of the former under-tenants would
in future be payable directly to the crown; but it was the practice of
Henry II. (confirmed by c. 43 of Magna Carta, _q. v._) to charge, in
such cases, only the lower rates exigible prior to the escheat. A
similar rule applied to under-tenants of baronies in wardship; see the
case of the knights of the see of Lincoln in the hands of a royal
warden in Pipe Roll, 14 Henry II. (cited by Madox, _ibid._). It would
thus appear that all holders of crown fiefs (not merely _barones
majores_) were in Glanvill’s day still liable to arbitrary extortions
in name of reliefs. The editors of the _Dialogus_ (p. 223) are also of
this opinion. Pollock and Maitland (I. 289), however, maintain the
opposite view—namely, that the limitation to 100s. per knight’s fee
was binding on the crown as well as on mesne lords.

Every year, however, made for definition; and custom pointed with
increasing authority towards 100s. per knight’s fee, and £100 for a
barony. Two entries on the Pipe Roll of 10 Richard I. amusingly
illustrate the unsettled practice. A sum of £100 is described as a
“reasonable relief” for a barony, and immediately this entry is
stultified by a second entry of a considerable additional payment by way
of “fine” to induce the king to accept the sum his own roll had just
declared “reasonable.”[355] John was more openly regardless of reason.
The Pipe Roll of 1202 shows how an unfortunate heir failed to get his
heritage until he paid 300 marks, with the promise of an annual
“acceptable present” to the king.[356]

-----

Footnote 355:

Madox, I. 316.

Footnote 356:

Madox, I. 317.

-----

If John could ask so much, what prevented him asking more? He might name
a prohibitive price, and so defeat the hereditability of fiefs
altogether. Such arbitrary exactions must end, so the barons were
determined in 1215; custom must be defined, so as to prevail henceforth
against royal discretion. The first demand of the Articles of the Barons
is, “that heirs of full age shall have their heritage by the ancient
relief to be set forth in the Charter.” Here it is, then, duly set forth
and defined in chapter 2 of Magna Carta as £100 for an "earl’s barony,"
£100 for "a baron’s barony," 100s. for a knight’s fee, and a
proportional part of 100s. for every fraction of a knight’s fee. This
clause produced the desired effect. These rates were strictly observed
by the exchequer of Henry III., as we know from the Pipe Rolls of his
reign. Thus, when a certain William Pantoll was charged with £100 for
his relief on the mistaken supposition that he held a “barony,” he
protested that he held only five knight’s fees, and got off with the
payment of £25.[357] The relief of a barony was subsequently reduced
from £100 to 100 marks. The date of this change, if we may rely on
Madox,[358] lies between the twenty-first and thirty-fifth years of
Edward I.[359]

-----

Footnote 357:

_Ibid._, I. 318.

Footnote 358:

_Ibid._, I. 321.

Footnote 359:

The first of the long series of charters and confirmations which
contains it seems to be the _Inspeximus_ of 10th October, 1297, which
in all probability merely recognized officially a rule long demanded
as simple justice by the barons and public opinion. (See Madox, I.
318, Pollock and Maitland, I. 289, and Bémont, _Chartes_, p. 47.)

-----

Apparently all who paid reliefs to the king were mulcted in a further
payment (calculated at 9 per cent. of the relief) in name of "Queen’s
Gold," a contribution to the private purse of the Queen Consort, and
collected by an official specially representing her at the
exchequer.[360]

-----

Footnote 360:

See note by editors of _Dialogus_, p. 238. The Petition of the Barons
in 1258 (_Sel. Charters_, 382) protested against this, and the
practice was discontinued.

The Charter deals only with tenure by knight’s service; nothing is said
of other tenures. The explanation of the omission may possibly be
different in the cases of socage and of serjeanty respectively.[361]
(_a_) _Socage._ The barons were not so vitally interested in socage,
that being, in the normal case, the tenure of humbler men.[362] In later
reigns the king, like an ordinary mesne lord, contented himself with one
year’s rent of socage lands in name of relief. (_b_) _Serjeanty._ The
barons cannot have been indifferent to the fate of serjeanties, since
many of them held great estates by such tenures. Possibly they assumed
that the rules applied to knights’ fees and baronies would apply to
serjeanties as well. The Crown, however, acted on a different view;
large sums were frequently extorted by Henry III. By the reign of Edward
I., however, the practice of the exchequer was to limit itself to one
year’s rent (a sufficiently severe exaction)[363] for serjeanties, which
thus fell into line with socage.[364]

-----

Footnote 361:

Cf. _supra_, pp. 66-9.

Footnote 362:

It is possible to argue that the custom as to socage was already too
well settled to require any confirmation. Glanvill (IX. c. 4) stated
the relief for socage at one year’s annual value. It is not absolutely
clear, however, whether this restriction applied to the crown.
Further, no custom, however well established, was sufficiently safe
against John’s greed, to make confirmation unnecessary.

Footnote 363:

See Littleton, _Tenures_, II. viii., s. 154, and Madox, I. 321, who
cites the case of a certain Henry, son of William le Moigne, who was
fined in £18 for the relief of lands worth £18 a year held "by the
serjeanty of the King’s Lardinary."

Footnote 364:

Cf. _supra_, p. 69.

-----

II. _Units of Assessment._ Some explanation is required of the three
groups into which crown estates were thus divided—knight’s fees, barons’
baronies, and earls’ baronies.

(1) _Feodum militis integrum._ The origin of the knight’s fee is
obscured by a network of conflicting theories. A thread of connection is
sometimes traced between it and the mysterious five-hide unit of
Anglo-Saxon times; other authorities would ascribe its introduction into
England to a definite act of some great personage—either William the
Conqueror, according to Selden, who founds on a well-known but
untrustworthy passage in Ordericus Vitalis, or Ranulf Flambard,
according to Freeman, Stubbs, and Gneist. It seems probable that the
Normans, here as elsewhere, pursued their policy of avoiding an open
rupture with the past, and that the Conqueror adapted as far as possible
the existing system of land tenure to his own needs. There is little
doubt, in light of the evidence accumulated by Mr. Round in his _Feudal
England_, that William I. stipulated verbally for the service of a
definite number of knights from every fief bestowed by him on his Norman
followers. A knight’s fee or _scutum_ thus became a measure of military
service, and of feudal assessment; _servitium unius militis_ was a
well-known legal unit. But a difficult problem arises when it is asked
what definite equation, if any, existed between land and service. Three
answers have been given: (_a_) A definite ratio exists between amount of
service and extent of ground. In other words, the knight’s fee contains
a fixed area of land; every five hides sent one warrior, thus preserving
the old Anglo-Saxon unit.[365] (_b_) The ratio lies not between service
and extent, but between service and value. An estate of £20 annual
rental sends one knight to the king’s wars; the normal knight’s fee
contains 20 librates of land.[366] (_c_) Other authorities deny that any
proportion exists at all: William the Conqueror exacted from each of his
grantees precisely as much or as little knight’s service as he saw fit.

-----

Footnote 365:

C. Pearson, _Hist. of Engl._, I. 375, note 2.

Footnote 366:

J. H. Round, _Feudal England_, 295.

-----

Is it not possible to reconcile these divergent conclusions? Undoubtedly
the Conqueror held himself bound by no fixed rules, but made exceptions
where he pleased: some favoured foundations were exempt from all service
whatsoever.[367] Yet, if he distributed estates at his own free will, he
did not necessarily distribute them irrationally or at random. He
demanded service of knights in round numbers, 5 or 10 or 20, as he saw
cause, and in normal cases he was guided by some loose sense of
proportion. Where there was no reason either for preferential treatment
or for special severity, service would be roughly proportionate either
to the area or to the value. This rule was William’s servant, not his
master, and was made to yield to many exceptions, which would amply
account for the existence in later days of knight’s fees varying from 2
hides to 14 hides, instead of the normal 5.[368] Each such fee, whatever
its acreage or its rental, owed the service of one knight, and paid
relief at 100s.

-----

Footnote 367:

_E.g._ Gloucester and Battle Abbeys: see Round, _ibid._, 299.

Footnote 368:

See Round, _Feudal England_, 294, and Pollock and Maitland, I. 235.

-----

(2) _Baronia integra._ The word “barony” cannot be easily defined, on
account of the many changes it has undergone.[369] A “barony” at the
Norman Conquest differed in almost every respect from a “barony” at the
present day. The word _baro_ was originally synonymous with _homo_,
meaning, in feudal usage, a vassal of any lord. It soon became usual,
however, to confine the word to king’s men; “_barones_” were thus
identical with "crown tenants"—a considerable body at first; but a new
distinction soon arose between the great men and the smaller men among
their number (between _barones majores_ and _barones minores_). The
latter were usually called knights (_milites_), while “baron” was
reserved for the holder of an “honour.”[370] For determining what
constituted an “honour,” however, it was impossible to lay down any
absolute criterion. Mere size was not sufficient: a magnate once classed
as a full “baron” might successfully claim to be only a “knight,” thus
lightening some of his feudal burdens, for example this one of
“reliefs.” Chapter 14 of Magna Carta helped to stereotype the division,
since it stipulated that each _major baro_ should receive an individual
writ of summons to the Council, leaving the _barones minores_ to be
convened collectively through the sheriff. As the one point of
certainty, where everything else was vague, these writs came to possess
an exaggerated importance, and it was finally held (at a date long
subsequent to Magna Carta) that the mere receipt of a special summons,
if acted upon, made the recipient a baron, and entitled his heirs, in
all time coming, to succeed him in what was fast hardening into a
recognized title of dignity. The “barons” in 1215 knew nothing of all
this; they desired merely to have the reliefs due by them taxed at a
fixed rate. Each “barony” should pay £100, a sum afterwards reduced to
100 marks.

-----

Footnote 369:

See Pollock and Maitland, I. 262, and authorities there cited. “An
honour or barony is thus regarded as a mass of lands which from of old
have been held by a single title.” An exact definition is, perhaps,
impossible: the term was first applied in early days without any
technical meaning; in later days each “honour” had separately
established its position by prescriptive usage. See also Pike, _House
of Lords_, pp. 88-9, on the difficulty of defining “an entire barony.”

Footnote 370:

This change was not complete in 1215, but Magna Carta, when it uses
“_barones_” alone, seems to refer to “_barones majores_” only (see cc.
2, 21, 61). In c. 14, “_barones majores_” are contrasted with
“_barones minores_.”

-----

Relief was thereafter a fixed sum, while the size of the barony varied
in each case. As the same holds true of the knight’s fee, it is doubly
ridiculous to attempt to discover an equation between the knight’s fee
and the barony founded upon the ratio of the sums payable. Coke,
however, was guilty of this absurdity.[371]

-----

Footnote 371:

See Coke on _Littleton_, II. iv. s. 112, and _ibid._ _Second
Institute_, p. 7. Founding on the later practice of the exchequer,
which exacted one hundred marks of relief from a barony, and one
hundred shillings from a knight’s fee, he assumed the false equation
"1 barony = 13⅓ knight’s fees." If he had known of the earlier
practice, which followed the rule of John’s Charter, he might have
jumped to another equation, equally false, namely that "1 barony = 20
knight’s fees." There is, in reality, no fixed proportion between the
two, either as to extent or value.

-----

(3) _Baronia comitis integra._ A peculiar phrase is used in the text, an
"earl’s barony" appearing where “earldom” might be expected.[372] The
reason is that “earldom” originally implied the holding of an office and
not the ownership of land, whereas relief was payable for the earl’s
lands or “honour,” not for his office. The Charter, therefore, uses
words well fitted to make its meaning clear. The earl (or _comes_) was
the successor of the ealdorman as local governor of a county or group of
counties. His title was official, not tenurial, or even, in early times,
necessarily hereditary.

-----

Footnote 372:

In the _Inspeximus_ of Edward I., however, the word _comitatus_
(earldom) displaces the _baronia comitis_ of the text. See _Statutes
of Realm_, I. 114.

-----

Some of the ideas most intimately connected with a modern earldom were
signally inappropriate to the Norman earls. At the present day an
earldom is one of several “steps in the peerage,” a conception that did
not then exist. At the present day it carries with it a seat in the
House of Lords, whereas no instance is recorded until long after the
Norman Conquest of any earl or other great man demanding as a right to
be present in the king’s council: the custom of summoning all crown
tenants became stereotyped only in the reign of Henry II. and was not
formally recognized previous to chapter 14 of Magna Carta. At the
present day, again, the hereditary principle is the chief feature of an
earldom, whereas William did not admit that the office necessarily
passed from father to son.[373]

-----

Footnote 373:

See Pike, _House of Lords_, 57.

-----

The policy of the Conqueror had been to bring each county as far as
possible under his own direct authority; many districts had no earls,
while in others the connection of an earl with his titular shire was
reduced to a shadow, the only points of connection being the right to
enjoy “the third penny” (that is, the third part _pro indiviso_ of the
profits of justice administered in the county court) and the right to
bear its name. It is true that in addition the earl usually held
valuable estates in the shire, but he did this only as any other
landowner might. For purposes of taxation the whole of his lands,
whether in his own county or elsewhere, were reckoned as one unit, here
described as _baronia comitis integra_, the relief on which was taxed at
one hundred pounds.

Very gradually in after ages, the conception of an earldom suffered
change. The official character gave way before the idea of tenure, and
later on the modern conception was formulated of a hereditary dignity
conferring specific rank and privileges. The period of transition when
the tenurial idea prevailed is illustrated by the successful attempt of
Ranulf, earl of Chester and Lincoln, in the reign of Henry III. to
aliene one of his two earldoms—described by him as the _comitatus_ of
Lincoln.[374] Earls are now, like barons, created by letters patent, and
need not be land-owners. Thus the words “barony” and “earldom,” so
diverse in their origin and early development, were closely united in
their later history.

-----

Footnote 374:

See Pike, _House of Lords_, 63. This term _comitatus_ was a word of
many meanings. Originally designating the “county” or “the county
court,” it came to mean also the office of the earl who ruled the
county, and later on it might indicate, according to context, either
his titular connection with the shire, his estates, his share of the
profits of justice, or his rank in the peerage.

-----

III. _Liability of Church Property to “Relief.”_ The Great Charter of
John, unlike the Charter of Henry I. makes no mention of the lands of
vacant sees in this connection, probably because the main question had
long been settled in favour of the church. The position of a bishopric
was, however, a peculiar one. Each prelate was a crown tenant, and his
fief was reckoned a “barony,” entitling its owner to all the privileges,
and saddling him with all the feudal obligations of a baron.[375]

-----

Footnote 375:

This was specially affirmed in 1164 by article 11 of the Constitutions
of Clarendon, which stipulated that each prelate should hold his lands
_sicut baroniam_, merely a restatement of existing law.

-----

It was not then unnatural that, when a prelate died, the Crown should
demand “relief” from his successor, in the same way as from the heir of
a dead lay baron. Such demands, when made by William Rufus and his
minister Flambard, met with bitter opposition. The Crown in consequence,
unwilling to forego any of its feudal dues, endeavoured to shift their
incidence from the revenues of the see to the shoulders of the feudal
under-tenants. After bishop Wulfstan’s death on 18th January, 1095, a
writ was issued in William’s name to the freeholders of the see of
Worcester, calling on each of them to pay, as a relief due on their
bishop’s death, a specified sum, assessed by the barons of the
exchequer.[376]

-----

Footnote 376:

_Sicut per barones meos disposui._ The writ is given in Heming’s
_Cartulary_, I. 79-80, and reprinted by Round, _Feudal England_, 309.

-----

In revenge for such extortions from church lands and tenants, the
historians of the day, all necessarily recruited from the clerical
class, have heartily recommended Rufus and Flambard to the opprobrium of
posterity. Anselm compelled Henry I. to promise amendment in his
coronation Charter, which undertook to exact nothing during vacancies
either from the demesne of the church or from its tenants.[377] No
corresponding promise was demanded from John, a proof that such
exactions had ceased. The Crown no longer extorted relief from church
lands, although wardship was, without protest, enforced during
vacancies.

-----

Footnote 377:

See Appendix.

-----

CHAPTER THREE.

Si autem heres alicujus talium fuerit infra etatem et fuerit in
custodia, cum ad etatem pervenerit, habeat hereditatem suam sine relevio
et sine fine.

If, however, the heir of any one of the aforesaid has been under age
and in wardship, let him have his inheritance without relief and
without fine when he comes of age.

The Crown is here forbidden to exact relief where it had already enjoyed
wardship. It was hard on the youth, escaping from leading-strings, to be
met, when he “sued out his livery,” with the demand for a large relief
by the exchequer which had already appropriated all his available
revenue. The same event, namely, the ancestor’s death, was thus made the
excuse for two distinct feudal incidents.[378]

-----

Footnote 378:

Where there had already been a wardship, the relief was thus the price
paid by the heir in order to escape from the heavy hand of the king,
and was therefore known as “_ousterlemain_.” Mr. Taswell-Langmead
(_Engl. Const. Hist._, p. 51, n.) states the amount at half a year’s
profits. He cites no authorities for this, and is probably in error.
The _Dialogus_, II. x. E., p. 135, forbids relief to be taken, when
wardship had been exercised _per aliquot annos_.

-----

Such double extortion had long been forbidden to mesne lords; Magna
Carta was merely extending similar limitations to the king. The
grievance complained of had been intensified by an unfair expedient
which John sometimes adopted. In cases of disputed succession he
favoured the claims of a minor, enjoyed the wardship, and thereafter
repudiated his title altogether, or confirmed it only in return for an
exorbitant fine. The only safeguard was to provide that the king should
not enjoy wardship until he had allowed the heir to perform homage,
which constituted the binding tie of lord and vassal between them,
prevented the king from challenging the vassal’s right, and bound him to
“warrant” the title against all rival claimants. This expedient was
actually adopted in the revised Charter of 1216.[379]

-----

Footnote 379:

See chapter 3 of 1216, which stipulates that no lord shall have
wardship of an heir “_antequam homagium ejus ceperit_.” Cf. Coke,
_Second Institute_, p. 10.

-----

The alterations in that reissue were not altogether in the vassal’s
favour. Another addition made a reasonable stipulation in favour of the
lord, which incidentally illustrates the theory underlying wardship. The
essence of tenure in chivalry was the grant of land in return for
military services. Only a knight was capable of bearing arms; hence it
was that the lord held the lands in ward until the minor should reach
man’s estate. Ingenious attempts had apparently been made to defeat
these legitimate rights of feudal lords by making the infant heir a
“knight,” thus cutting away the basis on which wardship rested. The
reissue of 1216 prevented this, providing that the lands of a minor
should remain in wardship, although he was made a knight.[380]
Incidentally, the same Charter of Henry declared twenty-one years to be
the period at which a military tenant came of age, a point on which
John’s Charter had been silent.

-----

Footnote 380:

Coke, _ibid._, p. 12, makes a subtle, and apparently unwarranted,
distinction to depend on whether the minor was made a knight before or
after his ancestor’s death. The proviso, he argues, does not apply to
the former case, because the word used is “_remaneat_,” and lands
cannot “remain” in wardship if they were not in it before. Such
reasoning is puerile.

-----

In one case, exceptionally, wardship and relief might both be exacted on
account of the same death, though not by the same lord. Where the dead
man had formerly held two estates, one of the Crown and one of a mesne
lord, the Crown might claim the wardship of both, and then the
disappointed mesne lord was allowed to exact relief as a solatium for
his loss.[381]

-----

Footnote 381:

See _Coke on Littleton_, Book II. c. iv. s. 112; and cf. _infra_, cc.
37 and 43 for the “prerogative wardship” of the Crown.

-----

CHAPTER FOUR.

Custos terre hujusmodi heredis qui infra etatem fuerit, non capiat de
terra heredis nisi racionabiles exitus, et racionabiles consuetudines,
et racionabilia servicia, et hoc sine destructione et vasto hominum vel
rerum; et si nos commiserimus custodiam alicujus talis terre vicecomiti
vel alicui alii qui de exitibus illius nobis respondere debeat, et ille
destructionem de custodia fecerit vel vastum, nos ab illo capiemus
emendam, et terra committatur duobus legalibus et discretis hominibus de
feodo illo, qui de exitibus respondeant nobis vel ei cui eos
assignaverimus; et si dederimus vel vendiderimus alicui custodiam
alicujus talis terre, et ille destructionem inde fecerit vel vastum,
amittat ipsam custodiam, et tradatur duobus legalibus et discretis
hominibus de feodo illo qui similiter nobis respondeant sicut predictum
est.

The guardian of the land of an heir who is thus under age, shall take
from the land of the heir nothing but reasonable produce, reasonable
customs, and reasonable services, and that without destruction or
waste of men or goods; and if we have committed the wardship of the
lands of any such minor to the sheriff, or to any other who is
responsible to us for its issues, and he has made destruction or waste
of what he holds in wardship, we will take of him amends, and the land
shall be committed to two lawful and discreet men of that fee, who
shall be responsible to us for the issues, or to him to whom we shall
assign them; and if we have given or sold the wardship of any such
land to someone and he has therein made destruction or waste, he shall
lose that wardship, and it shall be transferred to two lawful and
discreet men of that fief, who shall be responsible to us in like
manner as aforesaid.

This chapter and the next treat of wardship,[382] a much hated feudal
incident, which undoubtedly afforded openings for grave abuses. It is a
mistake, however, to regard its mere existence as an abuse: it seems to
have been perfectly legal in England from the date of the Norman
Conquest, although some writers[383] consider it an innovation devised
by William Rufus and Flambard, without precedent in the Conqueror’s
reign. The chief argument for this mistaken view is that Henry I., in
promising redress of several admitted inventions of Rufus, promised also
to reform wardship. This may show that wardship was abused, but does not
prove it an innovation.

-----

Footnote 382:

The nature of wardship is more fully explained _supra_, pp. 75-7.

Footnote 383:

_E.g._ Mr. Taswell-Langmead, _Engl. Const. History_, p. 51, n.

-----

The Charter of Henry committed him undoubtedly to drastic remedies,
which would have amounted to the virtual abolition of wardship
altogether. Chapter 4 of that document removed from the lord’s custody
both the land and the person of the heir, and gave them to the widow of
the deceased tenant (or to one of the kinsmen, if such kinsman had, by
ancient custom, rights prior to those of the widow).[384] This was only
one of the many insincere promises which the “lion of justice” never
kept, and probably never meant to keep. Wardship continued to be exacted
from lay fiefs throughout the reigns of Henry I. and Stephen. Article 4
of the Assize of Northampton (1176) merely confirmed the existing
practice when it allowed wardship to the lord of the fee.[385] The
barons in 1215 made no attempt to alter this, or to revert to the
drastic remedies of the Charter of Henry I., although the evils
complained of had become worse under John’s misgovernment.

-----

Footnote 384:

“This, it would seem, was the old English rule”; see Ramsay,
_Foundations of England_, II. 230.

-----

It must be remembered that “wardship” placed the property and person of
the heir at the mercy of the Crown. Even if the popular belief as to the
fate met by Prince Arthur at his uncle’s hands was unfounded, John was
by no means the guardian to inspire confidence in the widowed mother of
a young Crown tenant whose estates the king might covet for himself.
Further, the king might confer the office, with the delicate issues
involved, upon whomsoever he would. When such a trust was abused it was
difficult to obtain redress. In 1133 a guardian, accused _de puella quam
dicitur violasse in custodia sua_, paid a fine to the crown, if not as
hush money, at least in order to obtain protection from being sued
elsewhere than in the _Curia Regis_.[386] It is easy to understand how
thoroughly this feudal incident must have been detested in England and
Normandy, all the more so if, as Hallam contends, it was not recognized
as a feudal due in other parts of Europe.[387]

-----

Footnote 385:

It is a common error to suppose that this Assize restores wardship to
the lord.

Footnote 386:

See _Pipe Roll_, 29 Henry II., cited Madox, I. 483.

Footnote 387:

Cf. _supra_, p. 78.

Guardians were of two kinds. The king might entrust the lands to the
sheriff of the county where they lay (or to one of his bailiffs), such
sheriff drawing the revenues on the Crown’s behalf, and accounting in
due season at the exchequer. Alternatively, the king might make an
out-and-out grant of the office, together with all profit to be derived
from it, to a private individual, either some royal favourite or the
bidder of the highest price. Commentators of a later date[388] apply the
word “committee” to the former type of guardian, reserving “grantee” for
the latter. This distinction, which is mentioned by Glanvill,[389]
obtains recognition in this passage of the Charter. Neither was likely
to have the interests of the minor at heart. Both would extort the
maximum of revenue, the one for the king, the other for himself. They
had always strong inducements to exhaust the soil, stock, and timber,
uprooting and cutting down whatever would fetch a price, and replacing
nothing. The heir found too often a wilderness of impoverished lands and
empty barns.

-----

Footnote 388:

_E.g._ Coke, _Second Institute_, p. 13.

Footnote 389:

VII. c. 10.

-----

The remedies proposed by Magna Carta were too timid and half-hearted;
yet something was effected. It was unnecessary to repeat the recognized
rule that the minor must receive, out of the revenues of the land,
maintenance and education suited to his station; but the Crown was
restrained by chapter 3 from exacting relief where wardship had already
been enjoyed; chapter 37 forbade John to exact wardship in certain cases
where it was not legally due; while here in chapter 4 an attempt was
made to protect the estate from waste.

The promised reforms included a definition of “waste”; punishment of the
wasteful guardian; and protection against repetition of the abuse. Each
of these calls for comment. (1) _The definition of waste._ The Charter
uses the words “_vastum hominum vel rerum_” (a phrase which occurs also
in Bracton).[390] It is easy to understand waste of goods; but what is
"waste of men"? An answer may be found in the words of the so-called
“unknown Charter of Liberties,”[391] which binds guardians to hand over
the land to the heir “_sine venditione nemorum et sine redemptione
hominum_.” Clearly, to enfranchise villeins was one method of “wasting
men.” The young heir, when he came to the enjoyment of his estates, must
not find his praedial serfs emancipated.[392] The words of the “unknown
Charter” may be used to illustrate the text, even if it be a forgery,
since a consensus of opinion holds it to be either contemporary or of
slightly later date.[393]

-----

Footnote 390:

II. folio 87.

Footnote 391:

See Appendix.

Footnote 392:

Another way of “wasting” villeins was by tallaging them excessively.
(For meaning of tallage cf. _infra_ c. 12.) Thus Bracton’s _Note Book_
reveals how one guardian _destruxit villanos per tallagia_ (_v._ case
485); how another exiled or destroyed villeins to the value of 300
marks (case 574); how a third destroyed two rich villeins so that they
became poor and beggars and exiles (case 632). Cf. also case 691.
Daines Barrington, writing towards the middle of the eighteenth
century, went too far when he inferred from this passage “that the
villeins who held by servile tenure were considered as so many negroes
on a sugar plantation” (_Observations_, p. 7.). For a definition of
“villein” see _infra_ c. 20.

Footnote 393:

Cf. _supra_, pp. 202-5.

-----

(2) _The punishment of wasteful guardians._ The Charter provides a
distinct but appropriate form of punishment for each of the two types of
guardian. John promises to take “amends,” doubtless of the nature of a
fine, from the “committee” who had no personal interest in the property;
while the “grantee” is to forfeit the guardianship, thus losing a
valuable asset for which he had probably paid a high price, sufficient
punishment, perhaps, without the exaction of damages.

Subsequent statutes did not, however, take so lenient a view. While the
Statute of Westminster[394] merely repeated the words of Magna Carta,
the Statute of Gloucester[395] enacted that the grantee who had
committed waste should not only lose the custody, but should, in
addition, pay to the heir any balance between the value of the wardship
thus forfeited and the total damage. More severe penalties were found
necessary. Statute 36 Edward III. chapter 13 enacted that the king’s
Escheators (officers who first became prominent towards the close of the
reign of Henry III., and who acted in the normal case as guardians of
Crown wards), when guilty of waste, should “yield to the heir treble
damages.” If the boy was still a minor, his friends might bring a suit
on his behalf; or after he was of full age he might bring it on his own
account.[396]

-----

Footnote 394:

3 Edward I. c. 21.

Footnote 395:

6 Edward I. c. 5.

Footnote 396:

Coke, _Second Institute_, p. 13, enunciates a doctrine at variance
with this statute, holding that the heir who suffered damage could
not, on coming of age, obtain such triple damages, or indeed any
damages at all, if the king had previously taken amends himself. Coke
further maintains that even after waste had been committed, the person
of the heir was left in the power of the unjust guardian, explaining
that when the Charter took away the office “this is understood of the
land, and not of the body.” There seems, however, to be no authority
for such statements.

-----

(3) _Provision against a recurrence of the waste._ It was only fair that
reasonable precautions should be taken to prevent the heir who had
already suffered hurt, from being similarly abused a second time. John,
accordingly, promised to supersede the keeper guilty of waste by
appointing as guardians two of the most trustworthy of the free-holders
on the heir’s estate. These men, from their local and personal ties to
the young heir, might be expected to deal tenderly with his property.
The “unknown Charter,” already referred to, proposed a more drastic
remedy. Whenever the Crown’s right to a wardship opened, the lands were
to be entrusted to four knights of the fief without waiting until damage
had been done. This suggestion, if carried out, would have protected the
king’s wards, without injury to the legitimate pecuniary interests of
the Crown.

CHAPTER FIVE.

Custos autem, quamdiu custodiam terre habuerit, sustentet domos, parcos,
vivaria, stagna, molendina, et cetera ad terram illam pertinencia, de
exitibus terre ejusdem; et reddat heredi, cum ad plenam etatem
pervenerit, terram suam totam instauratam de carrucis et waynagiis,
secundum quod tempus waynagii exiget et exitus terre racionabiliter
poterunt sustinere.

The guardian, moreover, so long as he has the wardship of the land,
shall keep up the houses, parks, places for live-stock,[397]
fishponds, mills, and other things pertaining to the land, out of the
issues of the same land; and he shall restore to the heir, when he has
come to full age, all his land, stocked with ploughs and implements of
husbandry, according as the season of husbandry shall require, and the
issues of the land can reasonably bear.

-----

Footnote 397:

_Vivarium_ in strictness means a place for keeping live-stock, but
probably included the animals also. By Coke, in the _Statutes at
large_, and elsewhere, it is translated “warren”; but that word has
its Latin form in _warrena_. Stubbs’ Glossary to _Select Charters_ (p.
551) renders it as “a fish pond,” but _stagnum_ has that meaning. The
Statute Westminster II. (c. 47) speaks of _stagnum molendinæ_ (a
mill-pond). The Statute of Merton (c. 11) refers to poachers taken _in
parcis et vivariis_; while Westminster I. (c. 1) forbids _ne courge en
autri parks, ne pesche en autri vivers_, which suggests a change of
connotation. Cf. _ibid._, c. 20.

-----

These stipulations form the complement, on the positive side, of the
purely negative provisions of chapter 4. It was not sufficient to
prohibit acts of waste; the guardian must see that the estates were kept
in good repair.

I. _The Obligations of the Warden of a Lay-fief._ It was the duty of
every custodian to preserve the lands from neglect, together with all
houses, “parks” (a term explained under chapter 47), fishponds, mills,
and the other usual items of the equipment of a medieval manor. All
outlays required for these purposes formed, in modern language, a first
charge on the revenues of the estate, to be deducted before the balance
was appropriated by the “grantee,” or paid to the exchequer by the
“committee.” It was the guardian’s duty, moreover, to restore the whole
to the heir in as good condition as the produce of the land might
reasonably permit. Henry’s Charters directed that the guardian should
redeliver the land stocked with ploughs “and with all other appointments
in at least as good condition as he received it.”[398]

-----

Footnote 398:

Blackstone, _Great Charter_, lxxviii. considers this “an indulgence to
guardians, by only directing them to deliver up the land ... in as
good condition as they found it, not in as good as it would bear.”
Sometimes, the heir after coming of age, could not recover his lands
at all. The Statute of Marlborough (c. 16) gave such a ward a right to
a _mort d’ancestor_ (cf. _infra_, p. 325) against a mesne lord, but
apparently not against the Crown. The Statute of Westminster I. (c.
48) narrates that heirs were often carried off bodily to prevent them
raising actions against their guardians.

-----

Magna Carta did not attempt to abolish wardship, which continued in full
force for many centuries, with only a few of its worst abuses somewhat
curtailed. The whole subject was regulated in 1549 by the Statute 32
Henry VIII. c. 46, which instituted the Court of Wards and Liveries, the
expensive and dilatory procedure of which caused increasing discontent,
until an order of both Houses of Parliament, dated 24th February, 1646,
abolished it along with “all wardships, liveries, _primer seisins_, and
_ouster les mains_.”[399] This ordinance was confirmed at the
Restoration by the Statute 12 Charles II. c. 24.

-----

Footnote 399:

See S. R. Gardiner, _Documents_, p. 207.

-----

II. _Wardships over Vacant Sees._ The church had its own grievances,
although these took a different form. The Constitutions of
Clarendon[400] had stipulated that each great prelate should hold his
Crown lands _sicut baroniam_; and this view ultimately prevailed. It
followed that all appropriate feudal burdens affected church fiefs
equally with lay fiefs. The lands which formed the temporalities of a
see were, however, in a peculiar position, being the property, not of an
individual, but of an undying corporation (to use the definite language
of a later age). When one bishop or abbot died, a successor of suitable
age and worth had at once to be appointed. A minority was thus
impossible, and therefore, so it might be argued, wardships could never
arise. Rufus objected to what he thought an unfair exemption from a
recognized feudal incident. Flambard devised an ingenious substitute for
ordinary wardships by keeping sees long vacant, and meantime taking the
lands under the guardianship of the Crown. Such practices formed the
original ground of quarrel between Anselm and Rufus. Henry I., while
renouncing by his Charter all pretensions to exact reliefs, retained his
right of wardship, promising merely that vacant sees should neither be
sold nor farmed out. Stephen went further, renouncing expressly all
wardships over church lands; but Henry II. ignored this concession, and
reverted to the practice of his grandfather. In his reign the wardship
of the rich properties of vacant sees formed a valuable asset of the
exchequer. During a vacancy the Crown drew not only the rents and issues
of the soil, but also the various feudal payments which the
under-tenants would otherwise have paid to the bishop. The Pipe Roll of
14 Henry II.[401] records sums of £30 and £20 paid into the exchequer by
two tenants of the vacant see of Lincoln for six and four knight’s fees
respectively.[402]

-----

Footnote 400:

Article 11: see _Select Charters_, 139.

Footnote 401:

Cited by the editors of the _Dialogus_, p. 223.

Footnote 402:

Cf. under c. 43 _infra_.

-----

The practice of Henry of Anjou was followed by his sons. John was
careful specially to reserve wardships over vacant sees even in that
very accommodating charter, dated 21st November, 1214, which surrendered
the right of canonical election to the national church. Stephen Langton
had either failed to force John to relinquish wardships or else
considered such a concession unnecessary now that the king renounced his
right to veto church appointments, since wardships over church lands
would become unprofitable if elections were never unduly delayed.
Whatever the reason, the charter of 1214 did nothing to guard against
the abuse of wardships over church lands, and John’s Great Charter was
equally silent.[403] The omission was supplied in 1216, when it was
directed that the provisions already made applicable to lay fiefs should
extend also to vacant sees, with the added proviso that church wardships
should never be sold. The charter of Henry III. thus reverted to the
exact position defined by the charter of Henry I. The lands of vacant
sees might be placed under a “committee,” but never given to a
“grantee,” to use Coke’s terms.

-----

Footnote 403:

C. 46 (see _infra_) confirmed _barons_, who had founded abbeys, in
their rights of wardship over them during vacancies.

-----

These provisions were further supplemented by later acts. An Act of 14
Edward III. (stat. 4, cc. 4 and 5) gave to the dean and chapter of a
vacant see a right to the pre-emption of the wardship at a fair price.
If they failed to exercise this, the king’s right to appoint escheators
or other keepers was confirmed, but under strict rules as to waste. This
is a distinct confirmation of the king’s right to “commit” church lands,
although the prohibitions against selling them or farming them out
remained still in force.

CHAPTER SIX.

Heredes maritentur absque disparagacione, ita tamen quod, antequam
contrahatur matrimonium, ostendatur propinquis de consanguinitate ipsius
heredis.

Heirs shall be married without disparagement, yet so that before the
marriage takes place the nearest in blood to that heir shall have
notice.

The Crown’s right to regulate the marriages of wards had become an
intolerable grievance. The origin of this feudal incident and its
extension to male as well as female minors have been elsewhere
explained.[404] John made a regular traffic in the sale of wards—young
maids of fourteen and aged widows alike. No excuse would be accepted.
The Pipe Roll of John’s first year[405] records how the chattels of a
certain Alice Bertram were taken from her and sold because she refused
“to come to marry herself” at the summons of the king. Only two
expedients were open to those who objected to mate for life with the men
to whom John sold them. They might take the veil, become dead in law,
and forfeit their fiefs to escape the burdens inherent in them. Only the
cloister could afford them shelter; nowhere in the outer world were they
safe. The other way of escape was to outbid objectionable suitors. This
was not always possible, for John was predisposed to favour the suit of
his foreign gentlemen of fortune, thus befriending his creatures while
adding to the slender number of personally loyal tenants-_in-capite_.
John’s greed was insatiable, and brief entries in his Exchequer Rolls
condense the story of many a tragedy. In the first year of his reign the
widow of Ralph of Cornhill offered 200 marks, with three palfreys and
two hawks, that she might not be espoused by Godfrey of Louvain, but
remain free to marry whom she chose, and yet keep her lands. This was a
case of desperate urgency, since Godfrey, for love of the lady or of her
lands, had offered 400 marks for her, if she could show no reason to the
contrary. It is satisfactory to learn that in this case the higher bribe
was refused, and the lady escaped.[406]

-----

Footnote 404:

See _supra_, 75–8.

Footnote 405:

Cited Madox, I. 565.

Footnote 406:

See _Rotuli de Oblatis et Finibus_, p. 37, and _Pipe Roll_, 2 John,
cited by Madox, I. 515.

-----

Sometimes John varied his practice by selling, not the woman herself,
but the _right_ to sell her. In 1203 Bartholomew de Muleton bought for
400 marks the wardship of the lands and heir of a certain Lambert, along
with the widow, to be married to whom he would, yet so that she should
not be disparaged.[407]

-----

Footnote 407:

_Pipe Roll_, 4 John, cited by Madox, I. 324.

Great stress was naturally placed on exemption from "disparagement"—that
is, from forced marriage with one who was not an equal. When William of
Scotland, by the treaty of 7th February, 1212, conferred on John the
right to marry Prince Alexander to whom he would, the qualification was
expressly stated, “but always without disparagement.”[408] Such a
proviso was understood where not expressed, and formed apparently the
only restriction admitted by the Crown upon this prerogative. It is not
surprising, then, to find it specially confirmed in Magna Carta.
The Articles of the Barons had, indeed, demanded a further
protection—namely, that a royal ward should only be married _with the
consent_ of the next of kin. In our text this is softened down to the
mere intimation of an intended marriage. The opportunity was thus
afforded of protesting against an unsuitable match. Insufficient as the
provision was, it was entirely omitted from the reissues of Henry’s
reign. The sale of heiresses went on unchecked.

-----

Footnote 408:

See _infra_, c. 59.

-----

Magna Carta made no attempt to define disparagement, but the Statute of
Merton[409] gave two examples,—marriage to a villein or to a burgess.
This was not an exhaustive list. Littleton, commenting on this
statute,[410] adds other illustrations:—“as if the heir that is in ward
be married to one who hath but one foot, or but one hand, or who is
deformed, decrepit, or having an horrible disease, or else great and
continual infirmity, and, if he be an heir male, married to a woman past
the age of child-bearing.” Plenty of room was left for forcing on a ward
an objectionable husband or wife, who yet could not be proved to come
within the law’s definition of “disparagement.” The barons argued in
1258 that an English heiress was disparaged if married to anyone not an
Englishman by birth.[411]

-----

Footnote 409:

20 Henry III. c. 6.

Footnote 410:

_Tenures_, II. iv. s. 109.

Footnote 411:

See Petition of Barons (_Sel. Charters_, 383). Gradually the
conception of disparagement was expanded, partly from the natural
development of legal principles and partly from the increased power
the nobility obtained of enforcing their own definitions upon the
king. Coke commenting on Littleton (Section 107) mentions four kinds
of disparagements: (1) _propter vitium animi_, _e.g._ lunatics and
others of unsound mind; (2) _propter vitium sanguinis_, villeins,
burgesses, sons of attainted persons, bastards, aliens, or children of
aliens; (3) _propter vitium corporis_, as those who had lost a limb or
were diseased or impotent; and (4) _propter jacturam privilegii_, or
such a marriage as would involve loss of “benefit of clergy.” The last
clause had no possible connection with the law as it stood in the
thirteenth century, but was founded on the fact that marriage with a
widow or widower was deemed by the Church in later days an act of
bigamy, and therefore involved loss of the benefit of clergy, until
this was remedied by the Statute 1 Edward VI. c. 12 (sect. 16).

Was it in the power of the far-seeing father of a prospective heiress by
marrying her during his own life-time to render nugatory the Crown’s
right to nominate a husband? Not entirely; for the Charter of Henry I.
(even when renouncing the more oppressive practice of Rufus) reserved
the king’s right to be consulted by the barons before they bestowed the
hand of female relations in marriage. Magna Carta is silent on the
point, and the presumption is that the existing law was to be
maintained.

Bracton[412] explains that law:—No woman with an inheritance could marry
without the chief lord’s consent, under pain of losing such inheritance;
yet the lord when asked was bound to grant consent, if he failed to show
good reasons to the contrary; he could not, however, be compelled to
accept homage from an enemy or other unsuitable tenant. The Crown’s
rights in such matters were apparently the same as those of any mesne
lord.[413]

-----

Footnote 412:

II. _folio_ 88.

Footnote 413:

For further information on the age at which marriage could be tendered
to a ward, and the penalties for refusing, see Thomson, _Magna
Charta_, pp. 170-1.

-----

CHAPTER SEVEN.

Vidua post mortem mariti sui statim et sine difficultate habeat
maritagium et hereditatem suam, nec aliquid det pro dote sua, vel pro
maritagio suo, vel hereditate sua quam hereditatem maritus suus et ipsa
tenuerint die obitus ipsius mariti, et maneat in domo mariti sui per
quadraginta dies post mortem ipsius, infra quos assignetur ei dos sua.

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 her husband and she 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.

No amount of forethought on the part of a Crown tenant, setting his
house in order against his decease, could rescue his widow from the
extremely unfortunate position into which his death would necessarily
plunge her. He must leave her without adequate protection against the
tyranny of the king, who might inflict terrible hardships by a harsh use
of rights vested in him for the safeguard of the feudal incidents due to
the Crown as overlord. Newly deprived of her natural protector, she was
under the immediate necessity of conducting a series of delicate
negotiations with a powerful opponent fortified by prerogatives wide and
vague. She might indeed, if deprived of her “estovers,” find herself for
the moment in actual destitution, until she had made her bargain with
the Crown; she had a right, indeed (under normal circumstances) to
one-third of the lands of her late husband (her _dos rationalis_) in
addition to any lands she might have brought as a marriage portion, but
she could only enter into possession by permission of the king, who had
prior claims to hers, and could seize everything by his prerogative of
primer seisin.[414] This chapter provides a remedy. Widows shall have
their rights without delay, without difficulty, and without payment.

-----

Footnote 414:

Cf. _supra_, 78–9.

I. _The Widow’s Share of Real Estate._ Three words are used:—_dos_,
_maritagium_, and _hereditas_.

(1) _Dower._ A wife’s dower is the portion of her husband’s lands set
aside to support her in her widowhood. It was customary from an early
date for a bridegroom to make adequate provision for his bride on the
day he married her. Such a ceremony, indeed, formed a picturesque
feature of the marriage rejoicings, taking place literally at the door
of the church, as man and wife returned from the altar. The share of her
husband’s land thus set apart for the young wife was known as her _dos_
(or dowry), and would support her if her husband died. In theory the
transaction between the spouses partook of the nature of a contract by
which they arranged the extent of the provision to be given and
accepted. The wife’s rôle, however, was a passive one; her concurrence
was assumed. Yet, if no provision was made at all, the law stepped in,
on the presumption that the omission had been unintentional on the
husband’s part, and fixed the dower at one-third of all his lands.[415]

-----

Footnote 415:

See Pollock and Maitland, II. 422-3. The ceremony at the church door,
when resorted to, was no longer an opportunity of giving material
proof of affection to a bride, but a means of cheating her out of what
the law considered her legitimate provision, by substituting something
of less value.

-----

John’s Magna Carta contents itself with the brief enactment “that a
widow shall have her dower.” The Charter of 1217 goes farther,
containing an exact statement of the law as it then stood:—"The widow
shall have assigned to her for her dower the third part of all her
husband’s land which he had in his lifetime (_in vita sua_) unless a
smaller share had been given her at the door of the church." Lawyers of
a later age have by a strained construction of the words _in vita sua_,
made them an absolute protection to a wife against all attempts of her
husband to defeat or lessen her dower by alienations granted without her
consent during the subsistence of the marriage.[416] Magna Carta
contains no warrant for such a proposition, although a later clause
(chapter 11) secures the dower lands from attachment by the husband’s
creditors, whether Jews or others.

-----

Footnote 416:

Pollock and Maitland, II. 419.

-----

(2) _Maritagium._ It was customary for a land-owner to bestow some share
of his property as a marriage portion upon his daughters, that they
might not come to their husbands as empty-handed brides. The land so
granted was usually relieved from all burdens of service and homage. It
was hence known as _liberum maritagium_, which almost came to be
recognized as a separate form of feudal tenure. Grants for this purpose
could be made without the consent of the tenant’s expectant heirs,
although early English law absolutely prohibited alienation of lands for
any other purpose without their consent. _Maritagium_ was thus “a
provision for a daughter—or perhaps some other near kinswoman—and her
issue.”[417] The husband of the lady was, during the marriage, treated
as virtual owner for all practical purposes; but on his death the widow
had an indisputable title to lands brought with her “in free
marriage.”[418]

-----

Footnote 417:

See Pollock and Maitland, II. 15-16.

Footnote 418:

_Liberum maritagium_, considered as a tenure, has various
peculiarities. The lady’s husband became the feudal tenant of her
father. The issue of the marriage were heirs to the lands and would
hold them as tenants of the heir of the donor. For three generations,
however, neither service nor homage was due. After the third
transmission, the land ceased to be specially “free”; the peculiar
tenure came to an end; and the new owner was subject to all the usual
burdens of an ordinary tenant.

-----

The obvious meaning, however, has not always been appreciated. Coke[419]
reads the clause as allowing to widows of under-tenants a right denied
(by chapter 8) to widows of Crown tenants—namely “freedom to marry where
they will without any licence or assent of their lords.” This
interpretation is inherently improbable, since the barons at Runnymede
desired to place restrictions on their enemy, the king, not upon
themselves; and it is opposed to the law of an earlier reign, as
expounded by Bracton.[420]

-----

Footnote 419:

_Second Institute_, p. 16.

Footnote 420:

See _supra_, p. 253.

-----

Daines Barrington[421] invents an imaginary rule of law in order to
explain a supposed exception. An ordinary widow, he declares, could not
in the normal case marry again before the expiry of a year after her
first husband’s death. Some widows, however, were specially privileged.
_Maritagium_ was a right conferred on widows of land-owners to cut short
the period of mourning imposed on others. This is a complete inversion
of the truth; the possession of land always restricted, instead of
extending, freedom of marriage. Several later authorities follow
Barrington’s mistake.[422]

-----

Footnote 421:

_Observations_, pp. 8-10.

Footnote 422:

_E.g._ Thomson, _Magna Charta_, p. 172. Dr. Stubbs has his own reading
of _maritagium_, namely, “the right of bestowing in marriage a feudal
dependant.” See Glossary to _Sel. Charters_, p. 545. The word may
sometimes bear this meaning, but not in Magna Carta.

-----

Such mistakes when made by recent writers are the more inexcusable in
view of the clear explanation given a century ago by John Reeves,[423]
who distinguished between two kinds of marriage portion: _liberum
maritagium_, whence no service whatever was exigible for three
generations, and _maritagium servitio obnoxium_, liable to the usual
services from the first, although exempt from homage until after the
death of the third heir.[424]

-----

Footnote 423:

See his _History of English Law_, I. 121 (3rd ed.).

Footnote 424:

Cf. _Ibid._ I. 242, where Reeves rightly points out that Coke is
mistaken, although he fails to notice the distinction drawn in the
passage criticized between the Crown and mesne lords.

-----

(3) _Hereditas._ The first two words are thus readily understood: but
what is _hereditas_? Is it simply another name for one of these, or is
it something different? It is possibly used to denote estates acquired
by the wife, not as a marriage portion, but in any other way, for
example by the opening of a succession on the death of someone, her
father or other relative, of whom she is the heir.

II. _The Widow’s Share of Personal Estate._ The chapter of the Charter
at present under discussion says nothing as to the widow’s right to any
portion of her deceased husband’s goods and chattels. Chapter 26,
however, confirms the existing law which secured to her, in the normal
case, one third of her husband’s personal estate, as will be more fully
explained hereafter.

III. _Provision for the Widow’s immediate Needs._ Many intricate
questions might arise before it was possible to divide the land into
aliquot portions and so “assign” the exact one-third due to her.
Meanwhile, temporary provision must be made for her support. This was of
two kinds: (1) _Quarantine._ Magna Carta confirmed her right to remain
in the family home for a space of forty days. This was known to later
lawyers as the widow’s quarantine.[425] The Charter of 1216 notes an
exception to the general rule, on which John’s Charter is silent: if the
deceased husband’s chief place of residence had been a castle, the widow
could not stay there; feudal strongholds were not for women. In such
cases, however, so the reissue of 1216 carefully provided, another
residence must be immediately substituted. In later days, widows
unlawfully deprived of their quarantine were provided with a remedy by
means of a writ, known as “_de quarentina habenda_,” directing the
sheriff to take summary procedure to do her right.[426]

-----

Footnote 425:

The “unknown charter” (see Appendix) specified sixty days, but Magna
Carta fixed the period at forty.

Footnote 426:

See Coke, _Second Institute_, p. 16.

-----

(2) _Estovers of Common._ The widow required something more than the
protection of a roof; for, until her dower lands had been delivered to
her, no portion of the produce of her late husband’s manors could be
strictly called her own. The estate was held “in common” between her and
her husband’s heir (or between her and the “guardian” of that heir’s
estates). It was only fair that, until her rights were ascertained, she
should be allowed a reasonable share of the produce. Neither John’s
Charter nor the first issue of Henry III. said anything on this head.
The reissue of 1217 supplied the omission, expressly confirming the
widow of a Crown tenant in the right to _rationabile estoverium suum
interim de communi_. Many explanations of the word _estovers_ (generally
used in the plural) might be cited: from Dr. Johnson, who defines it
broadly as “necessaries allowed by law,” to Dr. Stubbs, who narrows it
to “firewood.”[427] It was the right to use certain parts of the natural
produce of land or other property for the supply of one’s personal or
domestic wants. Such rights varied in extent, however; from the general
right to a full supply of all things necessary for the maintenance of
life, down to the restricted right to take one kind of produce for one
specific purpose only.[428]

-----

Footnote 427:

See Glossary to _Select Charters_, p. 539: “firewood; originally
provision or stuff generally.”

Footnote 428:

Several instances of the wider use of the word may be given. Bracton
(III. _folio_ 137) explains that, pending the trial of a man accused
of felony, his lands and chattels were set aside by the sheriff until
it was determined whether they were to become the king’s property by
the conviction of the accused; meanwhile the imprisoned man and his
family out of the revenue received “reasonable estovers.” (Cf.
_infra_, c. 32.) The Statute of Gloucester (6 Edward I. c. 4) mentions
incidentally one method of stipulating for a return from property
alienated, viz., to take the grantee bound to provide the grantor in
estovers of meat or clothes. (“_A trouver estovers en vivre ou en
vesture_”). Blackstone again (_Commentaries_, I. 441) applies the name
_estovers_ to the alimony or allowance made to a divorced woman "for
her support out of the husband’s estate." Sometimes, however, the word
was used in a more restricted sense. Coke (_Second Institute_, p. 17)
says, "when _estovers_ are restrained to woods, it signifieth
housebote, hedgebote, and ploughbote,"—that is, such timber as was
required for repairing houses, hedges, and ploughs. Apparently it had
an even more restricted scope when used to describe the right of those
who dwelt in the king’s forests, viz., to take dead timber as
firewood. (Cf. _infra_, c. 44.)

-----

It seems natural to infer that in this passage of Magna Carta the word
bears its wider signification. Such was Coke’s view,[429] who held that
it implied the widow’s right to “sustenance” of every kind, including
the right to kill such oxen on the manor as she required for food.
Estovers “of common” should thus be read as extending the widow’s right
of consumption for her own and her household’s use over every form of
produce held “in common” by her and the heir’s guardian prior to a final
division.[430]

-----

Footnote 429:

_Second Institute_, p. 17.

Footnote 430:

There seems no reason to restrict her estovers to a right over
“commons,” in the sense of pastures and woods held “in common” by her
late husband and the villeins of his manor. Some such meaning, indeed,
attaches to the phrase “dower of estovers” met with in later reigns,
_e.g._ in _Year Book_ of 2 Edward II. (Selden Society), p. 58, where
it was held that such a right (claimed as a permanent part of dower)
did _not_ belong to a widow.

-----

CHAPTER EIGHT.

Nulla vidua distringatur ad se maritandum dum voluerit vivere sine
marito; ita tamen quod securitatem faciat quod se non maritabit sine
assensu nostro, si de nobis tenuerit, vel sine assensu domini sui de quo
tenuerit, si de alio tenuerit.

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.

Wealthy ladies, who were wise, were glad to escape with their children
from John’s clutches by agreeing to buy up all the Crown’s oppressive
rights for a lump sum. In the very year of Magna Carta, Margaret, the
widow of Robert fitz Roger, paid £1000;[431] and a few years earlier
Petronilla, Countess of Leicester, expended as much as 4000 marks.[432]
Though the circumstances of each of these cases seem to have been
peculiar, the Pipe Rolls contain numerous smaller sums; in 1206 Juliana,
widow of John of Kilpec, accounts for 50 marks and a palfrey.[433]
Horses, dogs, and falcons were frequently given in addition to money
fines, and testify eloquently to the greed of the king, the anxiety of
the victims, and the extortionate nature of the whole system. In return,
formal charters were usually obtained, a good example of which is one
granted to Alice, countess of Warwick, dated 13th January, 1205,[434]
containing many concessions; among others that she should not be forced
to marry; that she should be sole guardian of her sons; that she should
have one-third part of her late husband’s lands as her reasonable dower;
and that she should be quit from attendance at the courts of the shire
and of the hundred, and from payment of sheriff’s aids during her
widowhood. Another charter of 20th April, 1206, shows what a widow had
to expect if she failed to make her bargain with the Crown. John granted
to Richard Fleming, an alien as his name implies, and presumably one of
his not too reputable mercenaries, the wardship of the lands of the
deceased Richard Grenvill with the rights of marriage of the widow and
children.[435]

-----

Footnote 431:

See _Pipe Roll_ of 16 John, cited Madox I. 491.

Footnote 432:

See _Pipe Roll_ of 6 John, cited Madox I. 488.

Footnote 433:

See _Pipe Roll_ of 6 John, cited Madox I. 488.

Footnote 434:

_New Rymer_, I. 91.

Footnote 435:

See _New Rymer_, I. 92.

-----

Magna Carta sought to substitute a general rule of law for the
provisions of these private charters purchased by individuals at ruinous
expenditure. It contained no startling innovations, but only repeated at
greater length the promises made (and never kept) by Henry I. in the
relative part of clause 4 of his coronation charter. No widow was to be
constrained to marry again against her will. This liberty must not be
used, however, to the prejudice of the Crown’s lawful rights. Although
the widow need not marry as a second husband the man chosen by the king
without her consent, neither could she marry without the king’s consent
the man of her own choice. Magna Carta specially provided that she must
find security to this effect, an annoying, but not unfair, stipulation.
The Crown, in later days, compelled the widow, when having her dower
assigned to her in Chancery, to swear not to marry without licence; and
if she broke her oath, she had to pay a fine, which was finally fixed at
one year’s value of her dower.[436]

-----

Footnote 436:

See Coke, _Second Institute_, 18.

-----

CHAPTER NINE.

Nec nos nec ballivi nostri seisiemus terram aliquam nec redditum pro
debito aliquo, quamdiu catalla debitoris sufficiunt ad debitum
reddendum; nec plegii ipsius debitoris distringantur quamdiu ipse
capitalis debitor sufficit ad solucionem debiti; et si capitalis debitor
defecerit in solucione debiti, non habens unde solvat, plegii
respondeant de debito; et, si voluerint, habeant terras et redditus
debitoris, donec sit eis satisfactum de debito quod ante pro eo
solverint, nisi capitalis debitor monstraverit se esse quietum inde
versus eosdem plegios.

Neither we nor our bailiffs shall seize any land or rent for any debt,
so long as the chattels of the debtor are sufficient to repay the
debt; nor shall the sureties of the debtor be distrained so long as
the principal debtor is able to satisfy the debt; and if the principal
debtor shall fail to pay the debt, having nothing wherewith to pay it,
then the sureties shall answer for the debt; and let them have the
lands and rents of the debtor, if they desire them, until they are
indemnified for the debt which they have paid for him, unless the
principal debtor can show proof that he is discharged thereof as
against the said sureties.

The Charter now passes to another group of grievances. Chapters 9 to 11
treat of the kindred topics of debts, usury, and the Jews, and should be
read in connection with each other, and with chapter 26, which regulates
the procedure for attaching the personal estate of deceased Crown
tenants who were also Crown debtors. The present chapter, although quite
general in its terms, had special reference to cases where the Crown was
the creditor; while the two following chapters treated more particularly
of debts contracted to Jews or other money lenders.

The fact that John’s subjects owed debts to his exchequer did not, of
course, imply that they had borrowed money from the king. The sums
entered as due in the Rolls of the Exchequer represented obligations
which had been incurred in many different ways. What with feudal
incidents and scutages, and indiscriminate fines, so heavy in amount
that they could only be paid by instalments, a large proportion of
Englishmen must have been permanently indebted to the Crown. At John’s
accession most of the northern barons still owed the scutages demanded
by Richard. John remitted none of the arrears, while imposing new
burdens of his own: the attempts made to collect these debts intensified
the friction between John and his barons.[437] It was, further, the
Crown’s practice wherever possible, to make its debtors find sureties
for their debts, thus widening the circle of those liable to distraint,
while the officers who enforced payment were guilty of irregularities,
which became the cloaks of grave abuses.

-----

Footnote 437:

See _supra_, p. 89.

-----

Three equitable rules were laid down. (1) The personal estate of a
debtor must be exhausted before his real estate or its revenues were
attacked. To take away his land might deprive him ultimately of his
means of livelihood, since the chattels left to him could not yield a
permanent revenue.[438] The rule here laid down by Magna Carta has not
found a place in modern systems of law, which usually leave the option
with the creditor. (2) The estate (both real and personal) of the chief
debtor had to be exhausted before proceedings could be instituted
against his sureties. Magna Carta thus enunciated in English law a rule
which has found favour in most systems of jurisprudence. The man who is
only a surety for another’s debt is entitled to immunity until the
creditor has taken all reasonable steps against the principal debtor.
Such a right is known to the civil law as _beneficium ordinis_, and to
modern Scots law as the “benefit of discussion.” (3) If these sureties
had, after all, to pay the debt in whole or in part, they were allowed
“a right of relief” against the principal debtor, being put in
possession of his lands and rents. This rule has some analogy with the
equitable principle of modern law, which gives to the surety who has
paid his principal’s debt, the right to whatever property the creditor
held in security of that debt.

-----

Footnote 438:

The _Dialogus de Scaccario_, II. xiv., had, half a century earlier,
laid down rules even more favourable to the debtor in two respects:
(_a_) the order in which moveables should be sold was prescribed; and
(_b_) certain chattels were absolutely reserved to the debtor, _e.g._
food prepared for use; and, in the case of a knight, his horse with
its equipment.

-----

Even when the Crown’s bailiffs obeyed Magna Carta by leaving land alone
when chattels were available, they might still wantonly inflict terrible
hardship upon debtors. Sometimes they seized goods valuable out of all
proportion to the debt; and an Act of 1266[439] forbade this practice
when the disproportion was “outrageous.” Sometimes they attempted to
extort prompt payment or to ruin their victim by selecting whatever
chattel was most indispensable to him. Oxen were taken from the plough
and allowed to die of starvation and neglect. The practice of the
exchequer, in the days of Henry II., had been more considerate; oxen
were to be spared as far as possible where other personal effects were
available.[440] John’s charter has no such humane provision,[441] and
the abuse continued. The Act of 1266, already cited, forbade officers to
chase away the owner who came to feed his impounded cattle at his own
expense. The _Articuli super cartas_[442] went further; prohibiting the
seizure of beasts of the plough altogether so long as other effects
might be attached of sufficient value to satisfy the debt.[443]

-----

Footnote 439:

51 Henry III., stat. 4 (among “statutes of uncertain date” in
_Statutes of Realm_, I. 197).

Footnote 440:

See _Dialogus de Scaccario_, II. xiv.: “_Mobilia cujusque primo
vendantur; bobus autem arantibus, per quos agricultura solet exerceri,
quantum poterint parcant_” (p. 148).

Footnote 441:

Cf., however, the rule as to amercements in c. 20.

Footnote 442:

28 Edward I. c. 12. See also Statute of Marlborough, 52 Henry III. c.
15.

Footnote 443:

Henry’s reissues make two small additions explaining certain points of
detail: (_a_) the words “_et ipse debitor paratus sit inde
satisfacere_” precede the clause giving sureties exemption; and (_b_)
the sureties are declared liable to distraint, not merely when the
chief debtor has nothing, but also when he can pay, but will not,
“_aut reddere nolit cum possit_.”

CHAPTER TEN.

Si quis mutuo ceperit aliquid a Judeis, plus vel minus, et moriatur
antequam illud solvatur, debitum non usuret quamdiu heres fuerit infra
etatem, de quocumque teneat; et si debitum illud inciderit in manus
nostras, nos non capiemus nisi catallum contentum in carta.

If one who has borrowed from the Jews any sum, great or small, die
before that loan be repaid, the debt shall not bear interest while the
heir is under age, of whomsoever he may hold;[444] and if the debt
fall into our hands, we will not take anything except the principal
sum[445] contained in the bond.

-----

Footnote 444:

The words “_de quocumque teneat_” include both Crown tenants and
under-tenants, and suggest that only freeholders were to receive
protection from this clause.

Footnote 445:

_Catallum_ and _lucrum_ were the technical words used for “principal”
and “interest” respectively in bonds and other formal documents. See,
_e.g._ Round, _Ancient Charters_ (Pipe Roll Society, Vol. X.) No. 51,
and John’s Charter to the Jews, _Rot. Chart._, p. 93.

-----

The taking of usury, denied by law to Christians, was carried on by Jews
under great disadvantages and risks; and the rates of interest were
proportionately high, ranging in normal cases from two to four pence per
pound per week; that is, from 43⅓ to 86⅔ per cent. per annum.[446]
During his nonage a ward had nothing wherewith to discharge either
principal or interest, since he who had the wardship drew the revenue.
At the end of a long minority an heir would have found the richest
estates swallowed up by a debt which had increased automatically ten or
twenty-fold.[447]

-----

Footnote 446:

See Pollock and Maitland, I. 452, and Round’s _Ancient Charters_,
notes to Charter No. 51.

Footnote 447:

The Crown was sometimes called in to enable a creditor, overwhelmed by
the accumulation of interest, to come to a settlement with his
creditors. In 1199 Geoffrey de Neville gave a palfrey to the king to
have his aid “in making a moderate fine with those Jews to whom he was
indebted.” See _Rotuli de Finibus_, p. 40. Ought we to view John’s
intervention as an attempt to arrange a reasonable composition with
unreasonable usurers, or was it simply a conspiracy to cheat
Geoffrey’s creditors?

Magna Carta prevented this great injustice to the ward; but, in doing
so, inflicted, according to modern standards, some injustice on the
money-lenders. During the minority no interest at all, it was provided,
should accrue to Jew or other usurer; while, if the debt passed to the
Crown, the king must not use his prerogative to extort more than a
private debtor might; he must confine himself to the principal sum
specified in the document of debt. The provision that no interest should
run during minorities was confirmed by the Statute of Merton,[448] which
made it clear, however, that its provisions should not operate as a
discharge of the principal sum or of the interest which had accrued
before the ancestor’s death. The Statute of Jewry, of uncertain
date,[449] made interest irrecoverable by legal process. All previous
acts against usury were repealed by the statute 37 Henry VIII. c. 9,
which, however, forbade the exaction of interest at a higher rate than
10 per cent., and this remained the legal rate until reduced to 8 per
cent, by 21 James I. c. 17. Money-lending and the usury laws are
subjects closely bound up with the repressive measures against the Jews.

Footnote 448:

20 Henry III. c. 5.

-----

Footnote 449:

_Statutes of Realm_, I. 221.

-----

I. _The History of the Jews in England._ The policy of the Crown towards
those aliens of the Hebrew race who sought its protection varied at
different times, and three periods may be distinguished. From the Norman
Conquest to the coronation of Richard I. the Jews were fleeced and
tolerated; during the reigns of Richard and John and the minority of
Henry III. they were fleeced and protected; and finally they were
fleeced and persecuted, this last stage extending from the formation of
the alliance between Henry and Innocent IV. down to the ordinance of
1290, which banished in perpetuity all Jews from England. The details of
this long story of hardship and oppression, tempered fitfully by royal
clemency, which had always to be well paid for, can here be glanced at
only in the barest outline. There were Jews in England before the Norman
Conquest; but the first great influx came in the reign of Rufus, whose
financial genius recognized in them an instrument for his gain, and who
would the more gladly protect them, as likely to prove a thorn in the
side of his enemy the Church. A second influx resulted from the
persecution of Israelites on the Continent of Europe, consequent on the
failure of the first Crusade. This new alien immigration seems to have
excited mistrust in England, and led to the disarming of all Jews in
1181, a measure which left them at the mercy of the Christian rabble.

Accordingly, when a disturbance occurred at the coronation of Richard
I., on 3rd September, 1189, owing to the imprudence of some officious
Jews, a general massacre took place in London, while York and other
towns were not slow to follow the example. The king was moved to anger,
not so much by the sufferings of the Jews, as by the destruction of
their bonds, since that indirectly injured the Crown; for the more the
Jews had, the more could be extorted from them, and when the written
bond had been burned, no evidence of the debt remained. Richard,
returning from his captivity a few years later, in urgent need of money,
determined to prevent a repetition of such interference with a valuable
source of revenue. His motive was selfish, but that was no reason why
the Israelites should not pay for a measure designed for their own
protection. Assembled at Nottingham they granted a liberal aid, in
return for a new expedient devised to secure their bonds. This scheme,
for the details of which Richard was probably indebted to the genius of
his great justiciar, archbishop Hubert Walter, was of a comprehensive
and practical character. In London, York, and other important cities,
offices or bureaus were established under the Crown’s protection,
containing treasure chests, called _archae_, fitted with triple locks,
to be opened only at stated intervals in the presence of special
custodians, known as chirographers, who kept the keys. These custodians
were usually four in number, two Christians and two Jews, chosen by
juries specially summoned for that purpose by the sheriff of the county,
and they were obliged to find sureties that they would faithfully
perform their important functions. Only in their presence could loans be
validly contracted between Jews and Christians; and it was their duty to
see the terms of all such bargains reduced to writing in a regular
prescribed form in duplicate copies. No contract was binding unless a
written copy or chirograph had been preserved in one or other of those
repositories or arks, which thus served every purpose of a modern
register, and other purposes as well. If the money-lender suffered
violence and was robbed of his copy of the bond, the debtor was still
held to his obligations by the duplicate which remained. If the Jew and
all his relatives were slain, even then the debtor did not escape, but
was confronted by a new and more powerful creditor, the king himself,
armed with the chirograph. Lists of all transactions were preserved, and
all acquittances and assignments of debts, known from their Hebrew name
as “starrs,” had also to be carefully enrolled.[450] Minute and
stringent rules, codified by Hubert Walter in the terms of a written
commission, were issued to the judges when starting on their circuit in
September, 1194.[451]

Footnote 450:

Cf. J. M. Rigg, _Sel. Pleas of the Jewish Exchequer_, p. xix.

-----

Footnote 451:

See chapter 24 of the _Forma procedendi in placitis coronae regis_,
cited in _Sel. Charters_, 262.

-----

If this cunningly-devised system prevented the Christian debtor from
evading his obligations, it also placed the Jewish creditor completely
at the mercy of the Crown; for the exact wealth of every Jew could be
accurately ascertained from a scrutiny of the contents of the _archae_.
The king’s officials were enabled to judge to a penny how much it was
possible to wring from the coffers of the Jews, whose bonds, moreover,
could be conveniently attached until they paid the tallage demanded. The
custom of fixing on royal castles as the places for keeping these arks,
probably explains the origin of the special jurisdiction exercised over
the Jews by the king’s constables (“_qui turres nostras
custodierunt_”).[452] In the dungeons of their strongholds horrible
engines were at hand for enforcing obedience to their awards. Such
jurisdiction, however, extended legitimately over trivial debts
only.[453] All important pleas were reserved for the officials of the
exchequer of the Jews, a special government department, which controlled
and regulated the whole procedure. Evidences of the existence of this
separate exchequer have been traced back to 1198, although no record has
been found of a date prior to 1218.[454] John, while despising the Jews,
was not slow to realize that in them the Crown possessed an asset of
great value. It was his policy to protect their wealth as a reservoir
from which he might draw in time of need, contenting himself meanwhile
with comparatively moderate sums. Thus, by a charter dated 10th April,
1201, he took 4000 marks in return for confirming their privileges; and
he obtained a second payment of a similar amount after his rupture with
Rome. The charter of 1201 was only a confirmation of rights already
enjoyed by all English Jews in virtue of the liberal interpretation put
upon the terms of an earlier charter which had been granted by Henry I.
to a particular father in Israel with his household, but subsequently
extended, with the tacit concurrence of the Crown, to the whole Hebrew
race. Under John’s charter they enjoyed valuable and definite
privileges, which, while leaving them completely in the royal power,
exempted them from all jurisdictions except those of the king and his
castellans; while, if a Christian brought a complaint against a Jew, it
was to be judged by the peers of that Jew.[455]

-----

Footnote 452:

See John’s Charter to the Jews of 10th April, 1201, in _Rotuli
Chartarum_, p. 93.

Footnote 453:

See Pollock and Maitland, I. 453, n.

Footnote 454:

Rigg, _ibid._, xx.

Footnote 455:

“_Judicata sit per pares Judei._” See _Rot. Chart._, I. 93.

When a repetition of the massacre which had disgraced his brother’s
coronation threatened to take place in 1203, John promptly ordered the
mayor and barons of London to suppress all such attempts. In terms
contemptuous alike to the Londoners and to the Jews his writ declared
that his promise of protection, “even though granted to a dog,” must be
held inviolate.[456] Protection was accorded to them, however, only that
they might furnish a richer booty to the Crown, when the proper occasion
arrived. Suddenly John issued orders for a wholesale arrest of the Jews
throughout England. The most wealthy members of their community were
brought together at Bristol, and, on 1st November, 1210, were compelled
to give a reluctant consent to a general tallage at the enormous sum of
66,000 marks. Apparently this amount had been fixed as the result of an
exaggerated estimate of the contents of the _archae_, and was more than
they could afford to pay. The methods adopted by John’s castellans to
extort the arrears of the amount are well-known, especially in the case
of the unfortunate Jew of Bristol, from whom seven teeth were extracted,
one each day, until he consented to pay the sum demanded.[457]

-----

Footnote 456:

_Rot. Pat._, I. p. 33, and _New Rymer_, I. 89. The date is 29th July,
1203.

Footnote 457:

See Rigg, _Sel. Pleas of the Jewish Exchequer_, xxiv.

-----

It was doubly hard that the race thus plundered and tortured by the king
should be subjected to harsh treatment by the king’s enemies on the
ground that they were pampered protégés of the Crown. Yet such was the
case: on Sunday, 17th May, 1215, when the insurgents on their way to
Runnymede entered London, they robbed and murdered the Jews, using the
stones of their houses to fortify the city walls.[458] It is not to be
wondered then that the same insurgents in forcing on King John the
demands which formed the basis of Magna Carta, included provisions
against usury.

-----

Footnote 458:

See Miss Morgate, _John Lackland_, p. 230.

-----

The advisers of the young Henry in 1216 omitted these clauses, but not
from love of the Jews. They were unwilling to impair so useful a
financial resource, which has been compared to a sponge which slowly
absorbed the wealth of the nation to be quickly squeezed dry again by
the king. The Jews were always willing to disgorge a portion of their
gains in return for protection in the rest, even of a contemptuous and
intermittent kind; but their lot became hard indeed when Henry III.,
urged by popular clamour and the wishes of the Pope, began a course of
active persecution, without relaxing the rigour of those royal exactions
which had previously been the price of protection. In 1253, a severe
ordinance inflicted a long list of vexatious regulations on the Hebrews,
almost converting their quarters in each great city into ghettos, like
those of the Continent of Europe. This was merely the commencement of a
series of oppressive measures, the natural outcome of the growing hatred
with which Christians regarded Jews,—a result partly of the heated
imagination of the rabble, ready to believe unauthenticated stories of
the crucifixion of Christian children, and partly of the fact that rich
Jews, in spite of all persecution, had possessed themselves of the
landed estates of freeholders and nobles and claimed to act as lords of
Christian tenants, enjoying wardships, escheats, and advowsons, as any
Christian baron might have done. The scope of this enquiry excludes any
detailed account of the stages through which repressive legislation
passed, until the lot of the Jews in England became intolerable. The
Statute of Jewry, however,[459] was of exceptional importance; taking
from usurers the right to recover interest by legal process, and
limiting execution for the principal to one half of the debtor’s lands
and chattels. In return some temporary concessions were granted. One by
one, all these privileges were withdrawn, until the end came in 1290
with the issue of a decree of perpetual banishment by Edward I., who was
compelled to sacrifice the cherished right of keeping a royal preserve
of Jews in deference to the culmination of national prejudice in a storm
of unreasoning hate.

-----

Footnote 459:

_Statutes of Realm_, I. 221.

II. _Legal Position of the Jews._ All through these vicissitudes of
fortune the legal status of the Jews had remained unchanged in all
essentials. Their position was doubly hard; they were plundered by the
Crown and persecuted by the populace. If John saved them from being
robbed by his Christian subjects, it was that they might be better worth
the robbing by a Christian king. Yet, for this protection, at once
fitful and interested, the Jews had to pay a heavy price; not only were
they liable to be tallaged arbitrarily at the king’s will, without limit
and without appeal, but they were hated by rich and poor as the king’s
allies. Such feelings would of themselves account for the unsympathetic
treatment accorded to money-lenders by Magna Carta; two other reasons
contributed. All usury was looked on in the Middle Ages as immoral
(although illegal only for Christians), while excessive interest was
habitually exacted.

The feudal scheme of society had no place for Jews and afforded them no
protection. Not only did they share the disabilities common to all
aliens, but these were not in their case mitigated by the protection
extended to other foreigners by their own sovereigns and by the Church.
As exiles in a foreign land, exposed to the attacks of a hostile mob,
they were forced to rely absolutely on the only power strong enough to
protect them, the arm of the king. The Jews became the mere serfs, the
perquisites or chattels of the Crown, in much the same way as the
villeins became the serfs or chattels of their lords. Rights they might
have against others by royal sufferance, but they had no legal remedy
against their master. In the words of Bracton,[460] “the Jew could have
nothing of his own, for whatever he acquired, he acquired not for
himself but for the king.” His property was his merely by royal
courtesy, not under protection of the law. When he died, his relations
had no legal title to succeed to his mortgages, goods, or money; the
exchequer, fortified by an intimate knowledge of the extent of his
wealth (for that consisted chiefly in registered bonds), stepped into
possession and could do what it pleased. The king usually, indeed, in
practice contented himself with one-third of the whole; but if the
relations of the deceased Jew received less than the balance of
two-thirds, they would be well advised to offer no remonstrance. The
Crown did not admit a legal obligation; and there was no one either
powerful enough, or interested enough, to compel the fulfilment of the
tacit understanding which restricted the royal claims. Whatever the Jew
had amassed belonged legally and potentially not to him but to the
Crown. Magna Carta, in striking at money-lenders, was striking at the
king.

-----

Footnote 460:

_Folio_, 386b.

-----

CHAPTER ELEVEN.

Et si quis moriatur, et debitum debeat Judeis, uxor ejus habeat dotem
suam, et nichil reddat de debito illo; et si liberi ipsius defuncti qui
fuerint infra etatem remanserint, provideantur eis necessaria secundum
tenementum quod fuerit defuncti, et de residuo solvatur debitum, salvo
servicio dominorum; simili modo fiat de debitis que debentur aliis quam
Judeis.

And if anyone die indebted to the Jews, his wife shall have her dower
and pay nothing of that debt; and if any children of the deceased are
left under age, necessaries shall be provided for them in keeping with
the holding of the deceased; and out of the residue the debt shall be
paid, reserving, however, service due to feudal lords; in like manner
let it be done touching debts due to others than Jews.

If the preceding chapter deprived Jews of part of the interest they
claimed, the present one deprived them also in certain circumstances of
part of the security on which they had lent the principal. The widow’s
dower lands were discharged from her husband’s debts, only two-thirds of
the original security thus remaining under the mortgage. Even this must
submit to a prior claim, namely the right of the debtor’s minor children
to such “necessaries” as befitted their station in life. Magna Carta, at
the same time, with characteristic care for feudal rights, provided that
the full service due to lords of fiefs must not be prejudiced, whoever
suffered loss. Finally, these rudiments of a law of bankruptcy were made
applicable to Gentile creditors equally as to Jews. These provisions,
with others injuriously affecting the royal revenue, were omitted in
1216, not to be restored in future charters: but they were re-enacted in
their essential principle, though not in detail, by the Statute of
Jewry, which limited a creditor’s rights of execution to one moiety of
his debtor’s lands and chattels.

CHAPTER TWELVE.

Nullum scutagium vel auxilium ponatur in regno nostro, nisi per commune
consilium regni nostri, nisi ad corpus nostrum redimendum, et
primogenitum filium nostrum militem faciendum, et ad filiam nostram
primogenitam semel maritandam, et ad hec non fiat nisi racionabile
auxilium: simili modo fiat de auxiliis de civitate Londonie.

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.

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. Before discussing how far such an estimate is
justified, it will be necessary to examine the historical context, with
special reference to two classes of John’s subjects; his feudal tenants,
and the citizens of London respectively.

I. _Protection of Crown Tenants from arbitrary Exactions._ The pecuniary
obligations of the barons may be arranged in two groups according as
they depended on the king’s own actions, or were determined by
circumstances which lay beyond the royal control. Payments of the former
type (such as reliefs and amercements), exigible only at fixed dates or
on the occurrence of specific events, were treated of elsewhere in Magna
Carta. The present chapter sought to prevent John from extorting
additional payments either absolutely at his own discretion, or because
of situations which he had purposely created as excuses for demanding
money. The entire field of such arbitrary feudal dues was covered by the
words “scutages” and “extraordinary aids,”[461] the use of which
protected the barons from every sort of compulsory payment which might
be demanded by the king at his own discretion.

-----

Footnote 461:

“Extraordinary” is here applied to all aids other than the three
normal ones which, falling due each on a definite occasion, come under
the opposite group of fixed payments.

-----

(1) _Scutage._ The development of the system described by this name has
been traced in the Historical Introduction.[462] Used at first as an
expedient for substituting, in the Crown’s option, money payments for
military service, it became, under John, a regular source of revenue,
imposed almost every year on one pretext or another, while it was levied
at an increased rate, and under conditions of a vexatious and burdensome
nature. If any one cause contributed, more than the others, to the
rebellion which culminated at Runnymede, it was John’s method of
imposing scutages. This chapter, then, attempted to strike at the common
root from which many grievances grew. The Crown was no longer to be left
sole judge of the occasions on which a scutage might be demanded. “The
common consent (or counsel) of the realm” must first be obtained. If
this provision had been carried into practice, it would have removed the
supreme control of the system of scutages from the Crown which received
the money, to the Crown tenants who paid it. This truly radical remedy
included the remedy of all minor abuses as well, since the collective
body of barons who could refuse payment unconditionally, might _a
fortiori_ make grants under such conditions as they chose. Henceforward
it would lie with them to say, on each occasion, whether the old normal
20s. per knight’s fee should be superseded by some other rate, either
higher or lower. This provision was never enforced, being omitted
altogether from the reissue of 1216, while the clause substituted for it
in the Charter of 1217 took an entirely different form.[463]

-----

Footnote 462:

See _supra_, 86–93.

Footnote 463:

See _supra_, 172–3.

-----

(2) _Feudal aids._ It was recognized from an early date that in
emergencies feudal vassals ought to contribute to their lord’s support
in proportion to the extent of their holdings. Such payments were known
as aids, and were originally supposed to be free-will offerings.[464] By
John’s reign they had fallen into two groups—ordinary and extraordinary.
The former, three in number, were only dealt with incidentally by the
Charter.[465] It is with the “extraordinary” aids that this chapter
specially occupies itself. These are placed in the same position as
scutages: the Crown cannot exact either, “unless by common counsel of
the realm.”

-----

Footnote 464:

Cf. _supra_, 80–2.

Footnote 465:

These three aids were carefully specified, and a reasonable rate was
stipulated for, but not defined. In this respect the treatment here
accorded to _aids_ is less satisfactory than that of _reliefs_ in
chapter 2, which carefully defined the amount to be paid. It is
probable that the framers of the present chapter relied on existing
usage, which seems to have regarded the normal aid as one-fifth of the
normal relief, _i.e._ as 20s. per knight’s fee. An alternative
explanation is also possible, that the same “common counsel” which had
the right to veto extraordinary aids, was also expected to determine
the reasonable amount of the ordinary aids.

-----

II. _Protection of Citizens of London from arbitrary Exactions._ Some
attempt was made to protect the men of London, as well as the Crown
tenants, from John’s demands for money. The insurgent leaders in this
way discharged part of their debt to an ally with special claims upon
their gratitude.[466] The Articles of the Barons had contained several
important provisions affecting the capital; and these were embodied in
the Charter in slightly altered terms, which suggest some influence at
work not altogether friendly to the citizens.[467] The present clause of
the completed charter, for example, uses only one word, “_aids_,” where
the 32nd of the Articles of the Barons had referred to “tallages and
aids.” There is no evidence to show whether the omission had been
deliberately planned, or was merely the result of inadvertence; and the
ambiguity inherent in both words makes it dangerous to hazard a dogmatic
opinion on the practical effect of the alteration. Yet a clearly-marked
line can be traced between the respective meanings of the two terms when
they are technically used.

-----

Footnote 466:

See _supra_, p. 42.

Footnote 467:

See article 23 (which became c. 33), article 31 (c. 41), and article
32 (cc. 12 and 13), and cf. _supra_, pp. 140-1. Whether article 12 (c.
35) was more a benefit to, than a restraint upon, traders seems
doubtful.

-----

(1) “_Aid_” is the vaguer word, applicable to every payment which can be
regarded as in any sense a free-will offering. It embraced gifts to the
Crown, whether from prelate or burgess or feudal baron. London was
stimulated towards acts of generosity by kings of England both before
and after John. There were times when “voluntary” aids, like the
“benevolences” of Tudor days, could not safely be withheld.

(2) “_Tallage_” was a tax levied at a feudal lord’s arbitrary will upon
more or less servile dependants, who had neither power nor right to
refuse. The frequency of these exactions and the sums taken depended
solely on the lord’s caprice, restrained by no law, but only by such
limits as an enlightened self-interest or regard for public opinion
might dictate. Liability to arbitrary tallage was thus one of the chief
marks of an unfree status, and was contrasted with the impositions
levied on those freeholders who held by knight’s service, by socage, or
by frankalmoin. The owner of the smallest manor, like the owner of the
greatest barony, might tallage his own villeins; and the king had a
similar privilege over a wider field. His rights extended even over
civic communities who held royal charters, since towns were
theoretically on the royal demesne, and therefore liable to tallage. The
great city of London, in spite of its growing wealth, its political
importance, and its list of chartered privileges, still shared this
liability.[468]

-----

Footnote 468:

This statement, for which evidence is given _infra_, is not always
admitted. Taswell-Langmead, _Eng. Const. Hist._, p. 107, says “The
city of London can never have been regarded as a demesne of the
Crown.”

-----

(3) _Comparison of tallage and aid._ The tallage, as a forced payment,
thus differed fundamentally from the nominally free “aid,” while two
minor points of difference may also be noted. In arranging an aid the
givers usually suggested the amount, though the king might reject the
offer as insufficient; while the amount of a tallage, on the other hand,
was arbitrarily fixed by the Crown. Further, while the aid granted by a
community was a joint offering which the citizens assessed and collected
by their own officers, and for which they admitted a collective
responsibility, the Crown itself allocated on whom it pleased the
particular sums of tallage to be paid by each individual, no joint
liability being admitted by those who had to pay. It was obviously to
the advantage of a borough to forestall, by the present of a liberal
aid, the Crown’s anticipated demand for a tallage, for the hated
tax-gatherer was thus kept outside the city gates. An aid was also more
to the king’s advantage than a tallage of equal amount. Not only was he
saved the trouble, expense, and delay of the collection, but he obviated
risk of loss through the insolvency of some of the individuals fixed
upon.

A story told by Madox[469] brings out the contrast. A dispute had arisen
between the king and the Londoners. To Henry’s demand for 3000 marks of
“tallage” they at first replied by offering 2000 marks of “aid,” which
the king refused. The citizens then denied liability to tallage
altogether, but were confronted with entries in Exchequer and Chancery
Rolls which entirely contradicted their audacious contention. On the
morrow the mayor and citizens acknowledged that they were talliable, and
gave the king the sum he demanded.

-----

Footnote 469:

I. 712, citing Mem. Roll 39 Henry III.

-----

(4) _Effects of the omission of the word “tallage” from Magna Carta._ As
the two words appearing in the Articles of the Barons had
well-recognized differences of meaning, it is unlikely that the omission
of one of them from the Charter was regarded as a purely verbal change.
John would readily enough dispense with the right to exact “aids” from
the wealthy traders of his capital, if he still preserved his privilege
of tallaging them at pleasure. The omission was perhaps deliberately
made in deference to John’s strong feeling on a point which did not
personally affect the barons.[470] Another omission should be noted. The
Articles had extended protection not only to Londoners, but also “to
citizens of other places who thence have their liberties,” meaning the
towns whose chartered privileges had been modelled on those of the
metropolis. Magna Carta completely ignored, in this connection, all
towns except London.[471]

-----

Footnote 470:

Alternative explanations are possible, _e.g._ that the prelates,
accustomed to tallage their own dependants, used their influence
successfully to combat this innovation as “the thin end of the wedge.”

Footnote 471:

It might possibly be argued that the last clause of chapter 13
extending to all towns a confirmation of liberties and customs, was
intended to embrace this provision as to aids. If so, the draftsman
has expressed himself clumsily.

-----

(5) _The nature of the protection afforded by Magna Carta._ The
arrangement of the present chapter is peculiar. After treating fully of
the abuses of Crown tenants, the case of the Londoners is thrown in
carelessly in a few words: “In like manner it shall be done concerning
aids from the citizens of London.” Various interpretations of the words
“_simili modo_” are possible. High authorities suggest that the clause
means no more than that aids taken from London, like ordinary aids taken
from Crown tenants, must be “reasonable.”[472] If this is so, a
criterion of reasonableness different from that applicable to knights’
fees became necessary; and this would have been hard to find.[473]

-----

Footnote 472:

Such is the opinion expressed in the _Lords’ Report on the Dignity of
a Peer_, I. 65.

Footnote 473:

In 1168, when Henry II. took an aid for the marriage of his daughter,
London contributed £617 16s. 8d., which might afford a precedent for a
“reasonable” aid. See _Pipe Roll_, 14 Henry II., cited Madox, I. 585.

-----

It is equally probable, however, that the intention was to render the
same consent necessary to the validity of aids, asked from London, as
had previously been stipulated in the case of scutages from tenants in
chief. If this is so, then the method provided in chapter 14 for taking
“the common counsel of the realm” was peculiarly ill-adapted to secure
to the men of London any effective voice in taxing themselves. The
necessity for the consent of an exclusively baronial assembly could not
adequately protect the Londoners, whose essentially different interests
were unrepresented.

Subsequent history casts no light on the original intention of this
clause; no occasion of testing its meaning ever occurred, the entire
chapter of which it forms part having been omitted from all subsequent
issues of the Charter.

(6) _Later history of the Crown’s right to tallage the towns._ Magna
Carta, even in its original form, did not deprive the king of his right
to tallage London, like any other part of his ancient demesne; and the
Crown continued quite legally and almost without question to exercise
this prerogative at intervals from 1215 until 1340. It has sometimes
been maintained, indeed, that the _Confirmatio Cartarum_ of 1297 was
intended to abolish this prerogative, and it is true, that a document
once considered as an authoritative version of the _Confirmatio_ bore
the suggestive title of _De tallagio non concedendo_. It is now well
known that the latter document is quite unauthentic; while, if the
_confirmatio_ itself was intended to relieve the towns from tallages
taken without their consent, it signally failed. Edward III.
occasionally exacted tallages from London and other towns. His
parliaments, however, sought to prohibit this, and succeeded, in 1340,
in passing a statute which abolished, in words peculiarly wide and
categorical, unparliamentary taxation of every kind whatsoever. This
act, which is sometimes styled by modern writers “the real _statutum de
tallagio non concedendo_,” is held by Dr. Stubbs to have conclusively
abolished _inter alia_ the Crown’s right of tallage.[474] This finally
settled the law, but did not prevent the king from trying to break that
law. In subsequent years Edward III. frequently disregarded the
restriction thus placed upon his financial resources, and with varying
success. He rarely did so, however, without meeting protests; and the
rule of law laid down in the act of 1340 was never repealed.

-----

Footnote 474:

See _Const. Hist._, II. 548. “Of the scope of this enactment there can
be no doubt; it must have been intended to cover every species of tax
not authorised by parliament, and ... it seems to have had the effect
of abolishing the royal prerogative of tallaging demesne.”

-----

III. _Magna Carta and the Theory of Parliamentary Taxation._ It is a
commonplace of our text-books that chapters 12 and 14 taken together
amount to the Crown’s absolute surrender of all powers of arbitrary
taxation, and even that they enunciate a general doctrine of the
nation’s right to tax itself.[475] Yet the very idea of “taxation” in
its abstract form, as opposed to specific tolls and tallages levied on
definite things or individuals, is essentially modern. The doctrine of
the day was that the king in normal times ought “to live of his own,”
like any other land-owning gentleman. A regular scheme of “taxation” to
meet the ordinary expenses of government was undreamt of. It is too much
to suppose, then, that our ancestors in 1215 sought to abolish something
which, strictly speaking, did not exist. The famous clause treats, not
of “taxation” in the abstract, but of the scutages and aids already
discussed. It does not concern itself with the rights of Englishmen as
such, but chiefly with the interests of those who held freeholds of the
Crown, and incidentally and inadequately with those of the citizens of
London. Several considerations place this beyond reasonable doubt.

-----

Footnote 475:

_E.g._ Taswell-Langmead, _Engl. Const. Hist._, 106, and Anson, _Law
and Custom of the Const._, I. 14. Dr. Stubbs, _Const. Hist._, I. 573,
considers that these words “admit the right of the nation to ordain
taxation.”

-----

(1) The terms of the restriction are by no means wide or sweeping; but
precise, accurate, and narrow. The “common consent of the realm” was
made a requisite for three species of exactions at the most: for
scutages and for extraordinary aids taken from the feudal tenants, and
possibly also for aids taken from the city of London: that is all. Not a
word is said of any other form of taxation or of other groups of
taxpayers. The restriction thus benefits Crown tenants only, with the
doubtful addition of the Londoners. (2) If under-tenants received by
chapter 15 some protection against their mesne lords, they received none
against the claims of the king. The Charter affected not national
“taxation,” but merely feudal dues. (3) The scant measure of protection
afforded did not extend even to all Crown tenants. The king’s villeins
were, of course, excluded; and so were even freeholders whose tenure was
other than that of chivalry. Socage tenants were left liable to carucage
and other exactions, tenants in frankalmoin (among them the wealthy
Cistercian monks) to forced contributions from the wool and hides of
their sheep, while the right of the Crown arbitrarily to raise the
“farms” of all parts of its own demesnes was deliberately reserved.[476]
(4) The Crown’s initiative in “taxation” (here restricted in regard to
“aids” and “scutages”) was, under many other names and forms, left
intact. The king required no consent before taking such prizes and
custom dues as he thought fit from merchandise reaching or leaving
England, or before taking tolls and fines at inland markets under the
plea of regulating trade. Tallages also were exigible at discretion from
aliens and Jews, from tenants of demesne, from London and other
chartered towns. (5) The limited scope of this restriction on
prerogative is further illustrated by the method provided for taking
“the common consent.” The assembly to be convened for that purpose was a
narrow body, representative neither of the several ranks and classes of
the community, nor of the separate national interests, nor yet of the
various districts of England. On the contrary, its composition was
extremely homogeneous, an aristocratic council of the military tenants
of the Crown, convened in such a way that only the greater among them
were likely to attend.[477]

-----

Footnote 476:

See _infra_, under c. 25.

Footnote 477:

Even when an honour escheated to the Crown, the tenants of that honour
“were not suitors of the _Curia Regis_.” See _Report on Dignity of a
Peer_, I. 60.

-----

These facts serve as a warning not to read into Magna Carta modern
conceptions which its own words will not warrant. This famous clause was
far from formulating any national doctrine of self-taxation; it was
primarily intended to protect Crown tenants from impositions levied by
John, not _qua_ sovereign but _qua_ feudal lord. Such as it was, it was
totally omitted, along with its corollary (chapter 14), in 1216. The
provision substituted for both, in the Charter of 1217, referred only to
scutages, saying nothing about aids, and cannot possibly be read as a
general prohibition of all arbitrary taxation by the Crown.[478]

-----

Footnote 478:

Cf. _supra_, pp. 173-4 and _infra_, under c. 14.

-----

CHAPTER THIRTEEN.

Et civitas Londonie habeat omnes antiquas libertates et liberas
consuetudines suas, tam per terras, quam per aquas. Preterea volumus et
concedimus quod omnes alie civitates, et burgi, et ville, et portus,
habeant omnes libertates et liberas consuetudines suas.

And the citizens of London shall have all their ancient liberties and
free customs, as well by land as by water; furthermore, we decree and
grant that all other cities, boroughs, towns, and ports shall have all
their liberties and free customs.

A full list of the liberties and customs of London would be a long one;
and an account of how each of these grew up and was confirmed by the
Crown need not be given here. The most cherished of the privileges
enjoyed in John’s day were the right to appoint a civic chief, who bore
the name of mayor, and the right to choose sheriffs of their own who
should collect the city’s _firma_[479] (or annual rent payable to the
exchequer), so as to obviate the intrusion of royal bailiffs. Only a
brief account of the way in which the metropolis obtained these two
privileges need be here attempted.

-----

Footnote 479:

_Firma_ is explained _infra_, c. 25.

-----

The chief feature of London before the Norman Conquest seems to have
been lack of proper municipal organisation. Dr. Stubbs describes the
capital during the eleventh century as “a bundle of communities,
townships, parishes, and lordships, of which each has its own
constitution.”[480] It was thus a collection of small administrative
units, rather than one large unit. Some semblance of legal unity was, it
is true, afforded by the folkmoot, in which the citizens regularly
assembled; by its smaller council known as “husteng”; and perhaps also
by its “cnihtengild” (if, indeed, this third body be not entirely
mythical); while the existence of a “portreeve” shows that for some
financial purposes also the city was treated as one whole. London,
however, prior to the reign of Henry I. was far from possessing
machinery adequate to the duties of a local government for the whole
community.

-----

Footnote 480:

Stubbs, _Const. Hist._, I. 439. Cf. Round, _Commune of London_, 220,
who is in substantial agreement. Miss Mary Bateson, however, thinks
that “there has been a tendency unduly to minimise the measure of
administrative unity in the twelfth-century shire of London.” See the
evidence produced by her, _Engl. Hist. Rev._, XVII. 480-510.

-----

The first step towards acquiring a municipal constitution is generally
supposed to have been taken by the citizens when they obtained a charter
from Henry I. in the last years of his reign (1130-35). This is not
strictly accurate. London, indeed, by that grant gained certain valuable
privileges and enjoyed them for a short time, but it did not obtain a
constitution. The chief rights actually conferred by Henry were as
follows:—(1) The _firma_ was fixed at the reduced rate of £300 per
annum, the citizens obtaining for this payment a lease in perpetuity of
their own city with the surrounding county of Middlesex—the grant being
made to the citizens and their heirs; (2) they acquired the right to
appoint whom they pleased as sheriffs of London and Middlesex, implying
the exclusion of the king’s tax-collectors by men of their own choosing;
(3) a similar right of appointing their own nominee as justiciar was
also conferred on them, to the exclusion apparently of the royal
justices of eyre. Many minor privileges were confirmed which need not
here be specified. Mr. J. H. Round[481] argues with convincing force
that these concessions, important as they were, did not confer a civic
constitution upon London. Henry’s charter, in his opinion, confirmed all
the already existing separate jurisdictions and franchises, perpetuating
the old state of disunion, rather than creating a new principle of
cohesion. He proves, further, that these benefits continued in force
only for a few years after Stephen’s accession. That king was coerced by
the Earl of Essex into infringing the citizens’ chartered rights; and
London did not regain the ground thus lost until the reign of Richard I.

-----

Footnote 481:

_Geoffrey de Mandeville_, 356.

-----

Henry II., indeed, granted a charter to the citizens in 1155, which is
usually interpreted as a full confirmation of all the concessions of the
earlier Henry.[482] Mr. Round has conclusively proved the error of this
opinion.[483] The charter of 1155 restricted, rather than enlarged, the
privileges of London, being couched in cautious and somewhat grudging
terms. The main concessions of the earlier charter were completely
omitted: the citizens no longer elected their own sheriffs or their own
justiciar; the reduction of the _firma_ to £300 was not confirmed; and
subsequent pipe rolls show that Henry doubled that amount, although the
Londoners protested, arguing for the lower rate.

-----

Footnote 482:

See _e.g._ Miss Norgate, _Angevin Kings_, II. 471.

Footnote 483:

_Geoffrey_, 367.

-----

The next crisis came early in Richard’s reign. Then it was that London
first obtained its municipal constitution. Then also it regained and
secured on a permanent basis the privileges precariously held for a few
years under Henry I. and Stephen. The form in which the constitution
came at last was borrowed from France, and was neither more nor less
than the _Commune_, so well known on the Continent in the twelfth and
thirteenth centuries. The commune of London was possibly modelled upon
the commune of Rouen; the chief cities of England and Normandy
respectively must have had intimate relations. Mr. Round[484] has shown
that these concessions were not, as has sometimes been supposed,
voluntarily granted in 1189 by Richard I., but were extorted from his
younger brother John, when that ambitious prince was bidding high for
powerful allies to support his claim to act as Regent. London really got
its first constitution on 8th October, 1191, under picturesque and
memorable circumstances. While Richard tarried in the Holy Land, a
scramble took place at home for the right to represent him. The
Chancellor Longchamp had been appointed Regent; but John, wily and
unscrupulous, successfully ousted him, with the help of the men of
London. At the critical moment the metropolis had offered its support on
conditions, which included the restoration of all the short-lived
privileges conferred by the charter of Henry I., and, in addition, a
municipal constitution of its own in the form of a commune of the
continental type.

-----

Footnote 484:

_Commune of London_, 222.

-----

Mr. Round, in a notable passage, describes the scene. "When, in the
crisis of October, 1191, the administration found itself paralysed by
the conflict between John, as the king’s brother, and Longchamp, as the
king’s representative, London, finding that she held the scales,
promptly named the 'Commune’ as the price of her support. The chronicles
of the day enable us to picture to ourselves the scene, as the excited
citizens, who had poured forth overnight, with lanterns and torches to
welcome John to the capital, streamed together on the morning of the
eventful 8th October at the well-known sound of the great bell, swinging
out from its campanile in St. Paul’s Churchyard. There they heard John
take the oath to the ‘Commune,’ like a French king or lord; and then
London, for the first time, had a municipality of her own."[485]

-----

Footnote 485:

_Commune of London_, 224.

-----

For any accurate definition of a commune we look in vain to contemporary
writers, who are usually carried away by their political bias. Richard
of Devizes[486] quotes with approval, “_Communia est tumor plebis, timor
regni, tepor sacerdotii_.” Some insight has been gained in recent years,
however, into its exact nature. A Commune was a town which had obtained
recognition as a corporate entity, as a link in the feudal chain,
becoming the free vassal of the king or other lord, and itself capable
of having sub-vassals of its own.[487] Its chief institutions were a
mayor and an elective council, generally composed of twenty-four
members, some or all of whom were known as _échevins_ or _skivini_, a
word which in its modern form of “scavengers” has fallen on evil days,
no longer denoting the city fathers, but men who perform civic duties of
a useful but less dignified nature. Perhaps the chief peculiarity of the
commune was the method of its formation, namely, by popular association
or conspiracy, involving the taking of an oath of a more or less
revolutionary nature by the citizens and its subsequent ratification by
those in authority. It is generally admitted that these communes, though
revolutionary in their origin, were not necessarily democratic in their
sympathies. Under the new constitution of London, the grievous taxation
of Richard’s reign was made to fall more heavily on the poor of London
than on any other class. The commune thus set up in 1191, tolerated at
first rather than encouraged by the Crown, formed thenceforth the
municipal government of the capital; the citizens chose not only their
own sheriffs, but also their own mayor, although the latter, when once
appointed, held office for life.

-----

Footnote 486:

_Select Charters_, p. 252.

Footnote 487:

M. Luchaire, _Communes Françaises_, p. 97, defines it as “_seigneurie
collective populaire_.”

-----

When John became king, he granted three charters, ratifying the
privileges of the capital in return for a _gersuma_ (or slump payment)
of 3000 marks.[488] All the franchises specified in the old charter of
Henry I. were now confirmed, with one exception: the liberty to appoint
a justiciar of their own, now seen to be inconsistent with the Crown’s
centralizing policy, was abandoned. None of these charters made mention
of mayor or commune, but they confirmed some minor privileges gained in
Richard’s reign.[489]

-----

Footnote 488:

Miss Bateson, _Engl. Hist. Rev._, XVII. 508.

Footnote 489:

_E.g._ the removal of obstacles to free navigation in Thames and
Medway. Cf. _infra_, c. 33.

A fourth charter, dated 20th March, 1201, was merely of temporary
interest; but a fifth, granted on 9th May, 1215, little more than a
month previous to Magna Carta, is of great importance, and represents
the bait thrown by John to the citizens in the hope of gaining their
support in this new crisis, as he had previously gained it in the crisis
of 1191. The fifth charter not merely confirmed to the citizens in
explicit terms the right already enjoyed by them of electing a mayor for
life, but allowed them to elect a new one every year. Miss Norgate does
not exaggerate, when she describes this concession as “the crowning
privilege of a fully constituted municipality, the right to elect their
own mayor every year.”[490] An annually elected magistrate would,
undoubtedly, feel his dependence on the citizens more than one holding
office for life; but it seems probable that the chief value of the grant
lay in its confirmation by John as king, of the rights conceded by him
fourteen years earlier as his brother’s unauthorised representative, and
enjoyed meanwhile on an insecure tenure. The charter of May, 1215, by
officially recognizing the mayor, placed the commune over which he
presided on a legal footing. The revolutionary civic constitution, sworn
to in 1191 was now confirmed. The citizens acted on the permission
granted them of annually changing their chief magistrate: but in place
of supporting the king who made the grant, they opened their gates to
his enemies.[491]

-----

Footnote 490:

_John Lackland_, 228.

Footnote 491:

From this date the list of mayors shows frequent, sometimes annual,
changes. Thus Serlo the mercer was Mayor in May, 1215, when London
opened its gates to the insurgents, while William Hardell had
succeeded him before 2nd June, 1216, when he headed the citizens who
welcomed Louis to make London his headquarters.

-----

Such then was the London whose privileges were confirmed by Magna
Carta—a city which had slowly grown to greatness, obtaining after many
struggles a complete municipal constitution in the form of a commune
with annually elected mayor and council, as well as sheriffs of its own
appointment, who excluded the Crown’s financial officers not only from
the district within its walls but from the whole of Middlesex. The Great
Charter, avoiding details, confined itself to a general confirmation to
the men of London of their ancient “liberties and free customs,” two
words[492] whose vagueness ought in this connection to receive a liberal
interpretation.[493]

-----

Footnote 492:

Both words are discussed _infra_, c. 39.

Footnote 493:

The Charter mentions neither mayor nor commune, but probably by
implication confirmed both. Prof. G. B. Adams finds such confirmation,
not in c. 13, but in c. 12 (by its application of the word _auxilium_
to London); and maintains that with the omission of this word from
subsequent charters "London’s legal right to a commune fell to the
ground." _Engl. Hist. Rev._, XIX. 706.

-----

London, in this respect, was not to stand alone; a similar concession
was explicitly made in favour of all other cities, boroughs, towns, and
sea-ports. This was a mere confirmation, however, not to be read as
conferring new privileges or exemptions, each borough being left to
prove its own customs as best it might. In the reissues of Henry, the
distinction of being mentioned by name was shared by these “barons of
London,” with “the barons of the Cinque ports,” who from their wealth,
their situation, and their fleet, were allies well worth conciliating.
They played, indeed, a prominent part in the decisive naval victory
gained by Hubert de Burgh on 24th August, 1217.[494]

-----

Footnote 494:

See _supra_, p. 170.

-----

Other portions of John’s Great Charter which specially affected the
Londoners were the last clause of chapter 12, and chapters 33 and 41;
while many of the privileges granted or confirmed in other chapters were
shared by them. The Mayor of London, it should be added, was one of the
executive committee of twenty-five, entrusted with wide powers to
enforce the provisions of the Charter.[495]

-----

Footnote 495:

See _infra_, c. 61.

-----

Among the most cherished privileges claimed by the chartered boroughs
were the rights to exact tolls and to place oppressive restrictions upon
all rival traders not members of their guilds, foreigners and denizens
alike. The confirmation of these privileges in this chapter has been
held to contradict chapter 41, which grants protection and immunities to
foreign merchants.[496] The inconsistency, however, should not be pushed
too far, since the later chapter aimed at the abolition of “evil
customs” inflicted by the king, not of those inflicted by the boroughs.
At the same time, all favour shown to aliens would be bitterly resented
by their rivals, the English traders. If the charter had been put in
force in its integrity, the more specific privileges in favour of
foreign merchants would have prevailed in opposition to the vague
confirmation of borough “liberties” wherever the two came into
collision.[497]

-----

Footnote 496:

Cf. Pollock and Maitland, I. 447-8.

Footnote 497:

Cf. _infra_, c. 41.

-----

CHAPTER FOURTEEN.

Et ad habendum commune consilium regni, de auxilio assidendo aliter quam
in tribus casibus predictis, vel de scutagio assidendo, summoneri
faciemus archiepiscopos, episcopos, abbates, comites, et majores
barones, sigillatim per litteras nostras; et preterea faciemus summoneri
in generali, per vicecomites et ballivos nostros, omnes illos qui de
nobis tenent in capite; ad certum diem, scilicet ad terminum quadraginta
dierum ad minus, et ad certum locum; et in omnibus litteris illius
summonicionis causam summonicionis exprimemus; et sic facta summonicione
negocium ad diem assignatum procedat secundum consilium illorum qui
presentes fuerint, quamvis non omnes summoniti venerint.

And for obtaining the common counsel of the kingdom anent the
assessing of an aid (except in the three cases aforesaid) or of a
scutage, we will cause to be summoned the archbishops, bishops,
abbots, earls, and greater barons, by our letters under seal; and we
will moreover cause to be summoned generally, through our sheriffs and
bailiffs, all others who hold of us in chief, for a fixed date,
namely, after the expiry of at least forty days, and at a fixed place;
and in all letters of such summons we will specify the reason of the
summons. And when the summons has thus been made, the business shall
proceed on the day appointed, according to the counsel of such as are
present, although not all who were summoned have come.

This chapter, which has no equivalent among the Articles of the Barons,
appears here incidentally: it would never have found a place in Magna
Carta but for the need of suitable machinery to give effect to the
provision of chapter 12.[498]

-----

Footnote 498:

On the whole subject of the _commune concilium_, cf. _supra_ 151-4 and
also 173-4.

-----

As the earlier clause is frequently supposed to contain a general
doctrine of _taxation_, so this one is often cited as enunciating a
general doctrine of _parliamentary representation_; while the close
connection between the two chapters is taken to indicate an equally
close connection between the two conceptions supposed to underlie them,
and is urged as evidence that the framers of Magna Carta had grasped the
essentially modern principle that taxation and representation go
together.[499] In this view, the barons at Runnymede deserve credit for
anticipating some of the best features of the modern system of
parliamentary government. The words of the text, however, will scarcely
bear so liberal an interpretation. Vital points of difference between
the principles of Magna Carta and the modern doctrine of representation
are revealed by a careful analysis.

-----

Footnote 499:

_E.g._ Sir William R. Anson, _Law and Custom of the Constitution_, I.
14, emphatically declares that one of the two cardinal principles of
the entire Charter is “that representation is a condition precedent to
taxation.”

-----

Under chapter 12 scutages and extraordinary aids could only be levied
“with common counsel of our kingdom,” and now chapter 14, by formulating
rules for convening the individuals whose consent was thus required,
fixes authoritatively the composition of an assembly definitely charged
with this specific function. The same Latin words which signify joint
“consent” or counsel thus came to signify also a special institution,
namely, that “Common Council” afterwards of such vital constitutional
importance, continuing under a new name the old _curia regis_ in several
of its most important aspects, and passing in turn into the modern
Parliament. The duties and constitutional importance of this _commune
concilium_ may be considered under six heads.

I. _Nature of the Summons._ Formal writs had to be issued when the
attendance of the members was required. These writs must specify the
time, place, and reason of assembling, giving formal notice at least
forty days in advance. In these respects the writs issued were all to be
the same; but in one vital particular a distinction was recognized. Each
of the really powerful men of the realm—archbishops, bishops, abbots,
earls, and "other greater barons"—must receive a separate writ, under
the royal seal, addressed to him individually and directly, while the
“smaller barons” were to be summoned collectively and indirectly through
the sheriffs and bailiffs of each district.

II. _Composition of the Council._ It is clear that the meetings
contemplated were purely baronial assemblies since none but Crown
tenants were invited to attend; while individual notice under the king’s
seal was given only to the more important magnates among them. The
Common Council of the Charter was thus an assembly of military Crown
tenants, and “the common consent of my kingdom” in John’s mouth was
synonymous with “the consent of my barons.”[500]

-----

Footnote 500:

This is illustrated by a comparison of the words used in the text with
the phrases in which Henry and his sons expressed “the common consent”
to important ordinances and charters: _e.g._ (_a_) the Assize of
Clarendon in 1166 (_Select Charters_, 143) bears to have been ordained
by Henry II. “_de consilio omnium baronum suorum_”; (_b_) John’s
Charter surrendering his kingdom to Innocent in 1213 declares that he
acted “_communi consilio baronum nostrorum_” (_Select Charters_, 285);
(_c_) Matthew Paris makes Earl Richard complain to his brother Henry
III. in 1255 that the Apulian business had been entered on “_sine
consilio suo et assensu barnagii_” (_Chron. Maj._ V. 520).

-----

The king’s Council had by this time freed itself from any complicated
theories as to its own composition, which may ever have hampered it. It
was now extremely homogeneous; a feudal muster of Crown vassals. Some
historians, indeed, in their anxiety to find distinguished pedigrees for
their democratic ideals, have traced the origins of the leading features
of the modern Parliament back to the Anglo-Saxon era; but such attempts
are hurtful to the best interests of history, while they do not in the
least advance the cause of popular liberties.

It is unnecessary here to examine the various rival theories professing
to explain the composition of the Anglo-Saxon Witenagemot, or to discuss
the exact connection between that venerable institution and the _Curia
Regis_ of the Norman kings. As a matter of fact, the early constitution
of the court of the Conqueror or of Rufus seems to have been monarchic
rather than aristocratic or democratic; that is to say, it depended to a
great extent on the personal will of the king, who might issue or
withhold writs of summons very much as he pleased. No evidence exists,
of date anterior to the Great Charter, of any magnate thrusting himself
unbidden into a royal council or forcing the king to issue a formal
invitation. On one occasion, indeed, the action of Henry II. in omitting
to issue a writ laid him open to unfavourable criticism. This was in
October, 1164, when a special council was summoned to Northampton to
pass judgment upon various questions at issue between the king and
Thomas à Becket. The primate was ordered to appear for judgment, but the
formal writ of summons, which every archbishop, as holder of a barony,
was wont to receive as matter of course, was deliberately withheld.
Apparently contemporary opinion condemned this omission.[501] It is safe
to infer, then, that as early as 1164, the method of issuing these writs
had become uniform, but this constitutional understanding was not
reduced to writing until embodied in Magna Carta. Thus it was in 1215
that the magnates of England formulated for the first time a distinct
claim to be present at the king’s councils; and even then the demand
only referred to assemblies summoned for one specific purpose.
Previously, attendance was reckoned not as a privilege, but merely as an
expensive burden, incident, like so many other burdens, to the
possession of land.[502]

-----

Footnote 501:

See Ramsay, _Angevin Empire_, p. 54, and authorities there cited.

Footnote 502:

See L. O. Pike, _House of Lords_, 92, "There is no trace of any desire
on the part of the barons to be summoned to the king’s great Council
as a privilege and an honour before the reign of John." Cf. also
_Report on the Dignity of a Peer_, I. 389.

-----

III. _Position of the “Minor Barons.”_ In recognizing a distinction
between two classes of Crown tenants, the Great Charter merely gave the
weight of its authority to existing usage, as that had taken shape in
the reign of Henry II. Crown tenants varied in power and position in
proportion to the extent of their lands, from the great earl who owned
the larger share of one or more counties, down to the small free-holder
with only a few hides, or it might be acres, of land. A rough division
was drawn somewhere in the midst; but the exact boundary was necessarily
vague, and this vagueness was probably encouraged by the Crown, whose
requirements might vary from time to time.[503] Those Crown tenants on
one side of this fluctuating line were known as _barones majores_, those
on the other as _barones minores_. The distinction had been recognized
as early as the days of Henry II.;[504] but Magna Carta helped to
stereotype it, and contributed to the growing tendency to confine the
word “baron” to the greater men.[505] It is unlikely that any “minor
baron” who obeyed the general summons would enjoy equal authority with
the magnates invited individually by writ; and it is difficult to say
even whether he was sure of a welcome, and, if so, in what capacity.
Three distinct theories at least have been advanced as to the position
occupied by the “minor barons” in the Common Council. (1) The duty of
attendance, burdensome to all, was specially burdensome to the poorer
Crown tenants. It has accordingly been suggested that the device of
inviting them by general summons was intended as an intimation that they
need not come. This is the view taken by Prof. Medley.[506]

-----

Footnote 503:

See Prof. Medley, _Engl. Const. Hist._, 123.

Footnote 504:

See _Dialogus de Scaccario_, II. x. D., “_baronias scilicet majores
seu minores_.”

Footnote 505:

Cf. _supra_, c. 2.

Footnote 506:

_Engl. Const. Hist._, 123. “The smaller tenants-in-chief would
thankfully regard the general summons as an intimation to stay away.”

-----

(2) Dr. Hannis Taylor holds an exactly opposite opinion, reading this
chapter as the outcome of a desire to ensure the fuller attendance of
the smaller men—as an attempt “to rouse the lesser baronage to the
exercise of rights which had practically passed into desuetude.”[507]
Each of the _barones minores_ was thus encouraged to attend for himself
and his own interests. If such an attempt had really been made, and had
succeeded in compelling the attendance of a large proportion of those
who previously had almost made good their right to shirk the burden, the
result would have been to leave no room whatever for the future
introduction of the representative principle into the national council.

-----

Footnote 507:

_Engl. Const._, I. 466.

-----

(3) A third theory, while agreeing that those summoned by general writ
were intended to obey the summons, thinks that the smaller Crown tenants
were called not exclusively each man for himself, but in a
representative capacity. It is thus suggested that a few knights
(probably elected for this purpose by their fellows) were expected to
attend to represent the others. Dr. Stubbs seems predisposed towards
this opinion, although he expresses himself with his usual caution.[508]

-----

Footnote 508:

See _Const. Hist._, I. 666. “Whether or no the fourteenth article of
the Great Charter intended to provide for a representation of the
minor tenants-in-chief by a body of knights elected in the county
court,” etc.

-----

The reasons for rejecting this third theory will be more conveniently
discussed in connection with the doctrine of representation. It is
perhaps unnecessary to decide between the two others; but it may be
suggested, even at the risk of seeming to invent a fourth theory in a
series already too numerous, that to the great men who framed the clause
it must have been a matter of supreme indifference whether their humbler
fellow-tenants attended or stayed away. The general summons expressed
neither an urgent desire for their presence, nor yet an intimation that
they were not wanted; but merely conformed with the established usage,
and left with each “minor baron” the decision whether he should come or
stay away. His presence would make little difference upon the
deliberations of the magnates.

IV. _Representation._ It is well to hesitate before applying to ancient
institutions a word so essentially modern as “representation.” In a
sense the reeve and the four best men of every village “represented”
their fellows in the county court from a very early age; and in a
somewhat different sense the feudal lord “represented” his free tenants
and villeins in the king’s court, but in neither instance was there
anything approaching the very definite relation which exists at the
present day between the elected member of Parliament and the
constituents he “represents.” It is true that the difference may in some
respects be one of degree rather than of kind, and it is further true
that two years before the date of Magna Carta a tentative experiment had
been tried in the direction of introducing representatives of the
counties into the king’s Council, thus taking the first step in a long
process destined ultimately to lead without any absolute breach of
continuity to the modern Parliament. But the Barons in June, 1215,
showed no desire to follow the example set by John in November, 1213.
The terms in which Magna Carta directs that all minor barons should be
summoned are explicit, and may be profitably contrasted with the words
used in the writ dated 7th November, 1213, addressed to the sheriff of
Oxford, ordering him to compel, in addition to the barons and the
knights already summoned (presumably _barones minores_), the attendance
of _quatuor discretos homines de comitatu tuo_ (presumably other than
Crown tenants).[509]

-----

Footnote 509:

Cf. _supra_, p. 36. The writ appears in _Rot. Claus_, I. 165, and also
in _Sel. Charters_, 287. Cf. _New Rymer_, I. 117.

-----

So far from the words of Magna Carta showing any desire to confirm this
precedent, they show a deliberate intention to ignore it, and to fall
back on the more ancient practice. The members of the assembly which
Magna Carta stipulated should be convened for the taking of “the common
consent” were all of one type, drawn from the same section of the
land-owning aristocracy, namely, military tenants-in-chief of the Crown.
The barons, great and small, might be present, each man for himself; but
the other tax-paying classes were completely ignored.[510] They were
neither present nor yet represented. The barons in this, as in other
matters, stood out for the old feudal order under which they had
preserved a wide measure of independence from the Crown’s control;
whereas King John for selfish reasons adopted the more enlightened
policy of his father, and even, unconsciously it may be, anticipated
some of the measures of his grandson, Edward Plantagenet. In brief, John
was progressive, while his opponents were conservative. The present
chapter must be added to the not inconsiderable list of those which
attempted to bring about a feudal reaction.[511]

-----

Footnote 510:

Cf. _supra_, c. 12.

Footnote 511:

Cf. Anson, _Law and Custom_, I. 44. “The provisions of 1215 described
an assembly of a type which was already passing away.” Cf. what is
said of reactionary tendencies in connection with cc. 37 and 39.

-----

V. _Powers and Functions of the Council._ It was not until long after
the days of Magna Carta that Parliament secured the most important of
those functions now deemed essential to its existence. No claim was made
by the Great Charter on behalf of the _commune concilium_ to any right
to be consulted in the making of laws or in the performance of
administrative or judicial duties by the Crown. No effort was made
towards formulating any doctrine of ministerial responsibility. This
assembly, narrow and aristocratic in its composition, had only one right
secured to it by Magna Carta—namely, a limited control over one form of
taxation. Even here, as we have seen, no general or sweeping claim was
put forward on its behalf. It had no right to a control of the national
purse: the barons confined themselves to a selfish assertion of a right
to protect their own individual pockets against an increase of feudal
burdens. A modern Magna Carta would have contained a careful list of the
powers and privileges of “the common council of the realm,” and would
have given to this list a conspicuous place of honour.[512]

-----

Footnote 512:

Cf. _Report on Dignity of a Peer_, I. 63, where it is mentioned as
“remarkable that no one article in the Charter has reference to the
previous existence of any assembly convened for general purposes of
legislation; nor does the charter contain any provision for the
calling of any such assembly in the future, or any provision
purporting the existence by law of any representative system for the
purpose of general legislation.”

-----

VI. _Rights of Majorities and Minorities._ The medieval conception of
constitutional solidarity was defective; the king’s council acted too
much like a fortuitous gathering of unrelated individuals, and too
little like a recognized organ of the body politic. Each “baron” was
summoned on his own behalf, and in order that he might give his
individual consent to a proposed levy; while it is doubtful how far a
dissenting minority could be bound by a decision of the rest.
Accordingly, the framers of Magna Carta deemed it necessary to assert
what would be too obvious to modern politicians to require
assertion—namely, that when the _commune concilium_ had been properly
convened, its power to transact business should not be interfered with
because a section of those summoned chose to stay away. “The business
shall proceed on the day appointed, according to the advice of such as
shall be present, although all that were summoned do not come.” Not all
business was competent, however, for the cause of summons had to be
mentioned in the writs. If these writs were in order, the Council, so we
may presume, had power to impose aids or scutages on those who were
absent.[513]

-----

Footnote 513:

Cf. Stubbs, _Const. Hist._, I. 607: “Absence, like silence, on such
occasions implies consent.”

-----

Nothing is said, however, as to the validity of a protest made by those
who came and expressed disapproval of what the majority agreed to. As
the substance of this chapter was observed in practice (though omitted
from subsequent confirmations), a precedent of the year 1221 may perhaps
be cited to illustrate the interpretation put upon it by contemporary
practice. A Council summoned by William Marshal, as Regent of Henry
III., had consented to a levy of scutage, and the bishop of Winchester
was assessed at 159 marks as the amount due for his knight’s fees. He
refused to pay, on the ground, quite untenable by modern standards, that
he had all along dissented from the grant. The fact of his protest was
vouched by Hubert de Burgh and others who had been present at the
Council. The plea was actually accepted by the Regent, and the exchequer
adjudged bishop Peter to be quit of the payment.[514] The incident shows
how far the statesmen of the day were from realizing the most elementary
principles of political theory. They had not yet grasped the conception
of a Council endowed with constitutional authority to impose its will on
a dissenting minority. Here it was apparently a minority of one.

-----

Footnote 514:

See _Pipe Roll_ of 5 Henry III., cited Madox, I. 675.

-----

The barons by consenting in 1217 to accept a return to the fixed rates
of scutage customary in the reign of Henry II., deliberately sacrificed
such right of control over the finances of the nation as they may have
obtained in 1215. At no time, indeed, did they show any appreciation of
the vital nature of the constitutional issues at stake. The importance
of the common council, and the necessity of defining its composition,
functions, and privileges, lay entirely beyond their narrow sphere of
vision.

It should be remembered, however, that the substance of this chapter of
John’s charter (although discarded in subsequent reissues) was virtually
observed in practice by the Crown, and treated as in force by the
barons. From this time forward the Common Council was almost invariably
consulted before the Crown attempted to levy such contributions; and
sometimes was bold enough to make conditions or to decline payment
altogether, the first instance on record of an outright refusal taking
place in a Parliament held at London in January, 1242.[515]

-----

Footnote 515:

See Prothero, _Simon de Montfort_, 67, and authorities there
mentioned.

-----

The barons, in October, 1255, if Matthew Paris has not fallen into
error, considered that the provisions of chapters 12 and 14 of John’s
Magna Carta were still in force, although they had been omitted in the
reissues of Henry III. When the king asked a liberal aid in furtherance
of his scheme for securing the crown of Sicily for his son Edmund, those
present at the Council deliberately refused, on the ground that some of
their peers had not been summoned “according to the tenor of Magna
Carta.” This incident illustrates the extreme constitutional importance
rightly attached by the barons to the rigid observance by the Crown of
the established usage relative to the convening of Parliament.[516]

-----

Footnote 516:

See M. Paris, _Chron. Maj._, V. 520. His words are: “_Et responsum
fuit quod omnes tunc temporis non fuerunt juxta tenorem magnae cartae
suae vocati, et ideo sine paribus suis tunc absentibus nullum
voluerunt tunc responsum dare_.” Matthew, however, probably improved
his story in the telling, adding local colour from the only version of
the charter known to him—namely, that spurious copy he had
incorporated in his own history. He clearly knew nothing of the
essential differences between the charters of John and of Henry. The
barons in 1255 may, or may not, have been equally ignorant.

-----

CHAPTER FIFTEEN.

Nos non concedemus de cetero alicui quod capiat auxilium de liberis
hominibus suis, nisi ad corpus suum redimendum, et ad faciendum
primogenitum filium suum militem, et ad primogenitam filiam suam semel
maritandam, et ad hec non fiat nisi racionabile auxilium.

We will not for the future grant to any one licence to take an aid
from his own free tenants, except to ransom his body, to make his
eldest son a knight, and once to marry his eldest daughter; and on
each of these occasions there shall be levied only a reasonable aid.

This chapter confers on the tenants of mesne lords protection similar to
that already conferred on Crown tenants: sums of money are no longer to
be extorted from them arbitrarily by their lords.[517] Different
machinery, however, had here to be adopted, since the expedient relied
on in chapter 12 (“the common consent of the realm”) was clearly
inapplicable.

-----

Footnote 517:

The chapter is, therefore, on the one hand a necessary supplement of
cc. 12 and 14, while on the other it is merely a particular
application of the general principle enunciated in c. 60, which
extended to sub-tenants all the benefits secured to Crown tenants by
previous chapters.

-----

I. _Points of difference between tenants-in-chief and under-tenants._
Tenants of mesne lords were in some respects better off than tenants of
the king,[518] but in others their position was distinctly worse. Not
only had they to satisfy the demands of their own lord for “aids,” but
they generally found that part of every burden laid by the king upon
that lord’s shoulders was transferred to theirs. In seeking to provide
for under-tenants the protection of which they stood so much in need
Magna Carta looked, not to the common council, but to the king. No mesne
lord was to be allowed to compel his tenants to contribute to his
necessities without obtaining a written licence from the Crown; and
stringent rules forbade the issue of such licences except upon the usual
three occasions. Contrast this procedure with that which affected Crown
tenants.

-----

Footnote 518:

The exemptions enjoyed by them are explained under c. 43.

-----

(1) While chapter 12 had spoken of “aids and scutages,” this one speaks
of “aids” alone. The omission can be readily explained: a mesne lord in
England had no right of private war, and was, as a logical consequence,
debarred from demanding scutage upon his own initiative. He might,
indeed, allocate upon his freeholders part of any scutage which the
Crown had taken from him; but the great barons who framed the Charter
had no intention to renounce so just a right. The restriction of this
clause to “aids” was thus intentional.

(2) It would have been absurd to require “the common counsel of the
realm” to every aid paid by the freeholders of a manor. The embryo
Parliament had no time for petty local affairs; and the present chapter
makes no such suggestion. Some substitute had, however, to be found. A
natural expedient would have been to compel the mesne lord who wished an
aid to take “the common consent” of the freeholders of his manor,
assembled for that purpose in their court baron, as in a local
parliament. This course was sometimes followed. Henry Tracey, for
example, in 1235 (although armed with a royal writ), convened his
Devonshire knights and obtained their collective consent to an aid of
20s. per fee on the occasion of his daughter’s marriage.[519] No such
obligation, however, had been placed upon mesne lords by Magna Carta,
which had sought a practical substitute for “the common consent of the
realm” in quite a different direction, as will be explained immediately.

-----

Footnote 519:

See Bracton’s _Notebook_, case 1146, cited by Pollock and Maitland, I.
331.

-----

(3) A check upon such exactions was sought, not in any action by the
court baron, but in the mesne lord’s need for a royal licence. The
necessity for this may at first have been a practical, rather than a
legal, one; for executive power lay with the officers of the Crown
alone, and the sheriff gave his services only at the king’s
command.[520] The Crown thus exercised what was virtually a power of
veto over all aids taken by mesne lords. Such a right, conscientiously
used, would have placed an effectual restraint on their rapacity. John,
however, employed it solely for his own advantage, selling writs to
every needy lord who proposed to enrich himself (and, incidentally, the
Crown also) at his tenants’ expense.

-----

Footnote 520:

In theory, in Henry II.’s reign at least, a royal writ was _not_
required in the normal case. See _Dialogus_, II. viii., and the
editors’ comment (p. 191): “Normally the levying of money under any
pretext from a land-owner gave him a right to make a similar levy on
his under-tenants.” As regards _scutage_, a distinction was
recognized. The lord who actually paid scutage might collect it from
his sub-tenants without a licence; but, if he served in person, he
could recover none of his expenses except by royal writ. See _Ibid._,
and cf. Madox, I. 675. It is necessary, however, to avoid confusion
between two types of writ, (_a_) that which merely authorized
contributions, _e.g._, _de scutagio habendo_; (_b_) that which
commanded the sheriff to give his active help.

-----

Magna Carta forbade the two tyrants thus to combine against the
sub-tenants, enunciating a hard-and-fast rule which, if duly observed,
would have struck at the root of the grievance. The whole subject of
aids was removed from the region of royal caprice into the region of
settled law. No writ could be lawfully issued except on the three
well-known occasions.

II. _The Influence of Magna Carta upon later Practice._ This chapter,
along with chapters 12 and 14, was discarded by Henry III.; and little
difference, if any, can be traced between the practices that prevailed
before and after 1215. Only in one particular were the requirements of
John’s Magna Carta observed, namely, as regards the need for obtaining a
royal licence. Mesne lords after this date, whatever may have been their
reason, invariably asked the Crown’s help to collect their aids. They
could not legally distrain their freeholders, except through the
sheriff, and this was, in part at least, a result of Magna Carta.[521]

-----

Footnote 521:

Cf. Pollock and Maitland, I. 331: “The clause expunged from the
Charter seems practically to have fixed the law.”

-----

Henry III., however, entirely disregarded the rule which forbade the
licensing of extraordinary aids. Like his ancestors, he was prepared to
grant writs on almost any plausible pretext. From the _Patent_ and
_Close Rolls_, as well as from other sources, illustrations of the
Crown’s earlier and later practice may readily be collected.

(1) _Scutages._ In 1217, for example, Henry granted permission to all
Crown tenants who had served in person to collect scutage from their
knights.[522]

-----

Footnote 522:

_Close Rolls_, I. 306, cited Pollock and Maitland, I. 331.

-----

(2) _Ordinary Aids._ (_a_) John in 1204 authorized the collection of “an
effectual aid” from the knights and freeholders of the Constable of
Chester for the ransom of their lord.[523] (_b_) A royal writ in 1235
allowed Henry Tracey, as already mentioned, to take an aid for his
eldest daughter’s marriage.

-----

Footnote 523:

_Patent Rolls_, 5 John, cited Madox. I. 615.

-----

(3) _Special Aids._ (_a_) When a _fine_ of sixty marks was incurred in
1206 by the Abbot of Peterborough, John allowed him to distrain his
under-tenants for contributions.[524] (_b_) An heir, paying _relief_,
might likewise transfer the obligation to his freeholders.[525] (_c_)
The lord’s _debts_ were frequently paid by his tenants. The returns to
the Inquest of 1170 contain particulars of the “sums given individually
by some forty burgesses of Castle Rising towards paying off the
mortgages of their lord, the Earl of Arundel, who was clearly in the
hands of the Jews”;[526] while in 1234 the Earl of Oxford and the Prior
of Lewes each obtained a letter patent distraining their tenants to
contribute to the discharge of their debts.[527] Sufficient evidence is
thus preserved that Henry III. took full advantage of the omission from
his own charters of this part of his father’s promises. He did not
question too minutely the justice of applications for such writs, if
good fees were punctually paid. His letters, during the earlier years of
his reign, authorized the taking of a “reasonable” aid, without hinting
at any mode of determining what that was. This is illustrated by the
procedure adopted by Henry Tracey in 1235, who apparently debated with
his assembled knights of Devonshire the amount to be paid as
“reasonable,” and finally accepted 20s. per fee.[528] It is interesting
to note, however, that this same mesne lord, twelve years later,
obtained a writ bidding the sheriff of Somerset assist him to collect
“the scutage of Gascony” at a specified rate, namely, 40s. per fee.[529]

-----

Footnote 524:

_Close Rolls_, 7 John, cited Madox, I. 616.

Footnote 525:

See Glanvill, IX. 8.

Footnote 526:

See Round, _Commune of London_, 130.

Footnote 527:

See Madox, I. 617, citing _Patent Rolls_, 18 Henry III. Various other
examples are given by Pollock and Maitland, I. 331, _e.g._ “the earl
of Salisbury, to enable him to stock his land.”

Footnote 528:

_Supra_, p. 303, and cf. Pollock and Maitland, I. 331.

Footnote 529:

See Madox, I. 677.

The first Statute of Westminster virtually reverted to the rule laid
down in 1215, for its terms imply that aids could only be taken on the
three well-known occasions. The vague declaration that these should be
reasonable in amount is replaced by the specification of a fixed rate,
namely 40s., or double what had been usual at an earlier period.
Definition of the amount and times of payment may, however, have been
worth purchasing even at this increase.

-----

CHAPTER SIXTEEN.

Nullus distringatur ad faciendum majus servicium de feodo militis, nec
de alio libero tenemento, quam inde debetur.

No one shall be compelled to perform greater service for a knight’s
fee, or for any other free tenement, than is due therefrom.

For military tenants, the transition from scutage to service was a
natural one; since it was not enough to protect themselves from
exactions in money, if they were still exposed to arbitrary exactions in
kind. John, therefore, declared that no freeholder should be constrained
to do more service for his lands than he was legally bound to do.
Disputes might arise, however, as to what extent of service actually was
due in each particular case, and Magna Carta did nothing to remove such
ambiguities. The difficulties of definition, indeed, were enormous,
since the duration and conditions of service might vary widely even
among tenants-in-chivalry, in consequence of special exemptions or
special burdens which appeared in title deeds or rested upon immemorial
usage. The barons would be unwilling to enter on so intricate and
laborious a task, fearing that the introduction of such complications
might do more harm than good. The necessity for accurate definition may
never have occurred to them: the main purport of their grievance was so
vividly present to their own minds that they did not acknowledge the
possibility of any mistake. The military Crown tenants had frequently
objected to serve abroad, particularly during John’s campaigns in
Poitou, which involved a long expensive journey to a region in which
they had nothing at stake.[530] They regarded themselves as not legally
bound to make expeditions to such portions of the Angevin Empire as had
not belonged to the Norman kings when their ancestors got their fiefs.
To force them to enter on campaigns to the south of France, or to fine
them heavily for staying at home, was, they argued, to distrain them _ad
faciendum majus servicium de feodo militis quam inde debetur_. When they
inserted these words in the Charter, they doubtless regarded them as an
absolute prohibition of compulsory service in Poitou, at all
events.[531] The clause was wide enough, however, to include many minor
grievances connected with service. The barons did not confine its
provisions to military service even, but extended it to other forms of
freehold tenure (“_nec de alio libero tenemento_”). No freeholder,
whether in socage, serjeanty, or frankalmoin, could in future be
compelled to render services not legally due.

-----

Footnote 530:

See the authorities cited _supra_, p. 85, nn. I and 2.

Footnote 531:

In the so-called “unknown Charter of Liberties” (see Appendix) John
concedes to his men “_ne eant in exercitu extra Angliam nisi in
Normanniam et in Brittaniam_,” a not unfair compromise, which may
possibly represent the sense in which the present chapter was
interpreted by the barons.

-----

If the barons thought they had thus settled the vexed questions
connected with foreign service, they deceived themselves. Although this
chapter (unlike those dealing with scutage) remained in full force in
all subsequent confirmations, it was far from preventing disputes. Yet
the disputants in future reigns occupied somewhat different ground. From
the days of William I. to those of Charles II., when the feudal system
was abolished, quarrels frequently arose, the most famous of which
culminated in 1297 in Edward’s unseemly wrangle with the Earls of
Norfolk and Hereford, whose duty it was to lead the royal army as
hereditary Constable and Marshal respectively, but who refused
point-blank to embark for Gascony except in attendance on the king’s
person.[532]

-----

Footnote 532:

Walter of Hemingburgh, II. 121. Cf., on the whole subject of foreign
services, _supra_, 154.

-----

It has been shown in the Historical Introduction[533] how the
obligations of a military tenant fell naturally into three groups
(services, incidents, and aids), while a fourth group (scutages) was
added when the Crown had adopted the expedient of commuting military
service for its equivalent value in money.

Feudal grievances also may be arranged in four corresponding groups,
each redressed by special clauses of Magna Carta: abuse of _aids_ by
chapters 12, 14, and 15; abuse of the feudal _incidents_, by chapters 2
to 8; abuse of _scutage_, by chapters 12 and 14; and abuse of _service_,
by the present chapter, which thus completes the long list of provisions
intended to protect tenants against their feudal lords.

-----

Footnote 533:

_Supra_, 72–86.

-----

CHAPTER SEVENTEEN.

Communia placita non sequantur curiam nostram sed teneantur in aliquo
loco certo.

Common pleas shall not follow our court, but shall be held in some
fixed place.

An attempt was here made to render royal justice cheaper and more
accessible. Law-suits in which the Crown had no special interest, common
pleas, were to be held in some one, fixed, pre-appointed spot, and must
no longer follow the king as he moved about from place to place. The
full extent of the boon conferred by this reform will be better
appreciated after a short consideration of the method of dispensing
justice adopted by Henry II. and his sons.

I. _The Curia Regis as a Court of Law._ The evil complained of was a
characteristically medieval one, and arose from the fact that all
departments of government were originally centred in the king and his
household, or _Curia Regis_, which performed royal and national business
of every kind. This _Curia Regis_, indeed, united in itself the
functions of the modern Cabinet, of the administrative departments (such
as the Home Office, the Foreign Office, and the Admiralty), and of the
various legal tribunals. It was the parent _inter alia_ of the Court at
St. James’s and the courts at Westminster. One result of throwing so
many and miscellaneous duties on a small body of hard-worked officials
was to produce a congestion of business. Nothing could be done outside
of the royal household, and that household never tarried long in any one
spot. Everything was focussed to one point, but to a point constantly in
motion. Wherever the king went, there the _Curia Regis_, with all its
departments, went also. The entire machinery of royal justice followed
Henry II., as he passed, sometimes on the impulse of the moment, from
one of his favourite hunting seats to another. Crowds thronged after him
in hot pursuit, since it was difficult to transact business of moment
elsewhere.

This entailed intolerable delay, annoyance, and expense upon litigants
who brought their pleas for the king’s decision. The case of Richard
d’Anesty is often cited in illustration of the hardships which this
system inflicted upon suitors. His own account is extant and 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. The plaintiff,
although ultimately successful, paid dearly for his legal triumph.
Reduced to borrow from the Jews to meet his enormous outlays, mostly
travelling expenses, he had to discharge his debts with accumulations of
interest at the ruinous rate of 86⅔ per cent.[534]

-----

Footnote 534:

Cf. J. F. Stephen, _Hist. of Crim. Law_, I. 88-9.

-----

II. _Common Pleas and Royal Pleas._ Long before 1215 all litigations
conducted before the king’s courts had come to be divided roughly into
two classes, according as the royal interests were or were not specially
affected by the issue. Those on one side of this fluctuating line were
known as royal pleas, or “pleas of the Crown,” provisions for holding
which are contained in chapter 24, those on the other side as ordinary
pleas or “common pleas,” to which alone the present chapter refers. As
these ordinary suits did not require to be determined in the royal
presence, it was therefore possible to appoint a special bench of judges
to sit permanently in some fixed spot, to be selected once for all as
likely to suit the convenience of litigants. No town was named in Magna
Carta; but Westminster, even then the natural home of law, was probably
intended from the first. It is Westminster that Sir Frederick Pollock
has in mind when he writes in reference to this chapter: “We may also
say that Magna Carta gave England a capital.”[535] The barons in 1215,
however, in asking this reform, were not insisting on any startling
innovation, but demanding merely the strict observance of a rule long
recognized. During most of John’s reign, a court did sit at Westminster
dispensing justice, with more or less regularity; and there most “common
pleas” were tried, unless John ordered otherwise.[536] Magna Carta
insisted that all exceptions must cease; the rule of law must supersede
the royal caprice.

-----

Footnote 535:

_Jurisprudence and Ethics_, 209. Sometimes, however, another “fixed
place” was substituted. The Court of Common Pleas once sat at York
under Edward III. and at Hertford under Elizabeth. See Maitland,
_Select Pleas of the Crown_, xiii. The Statute 2 Edward III. c. 11,
enacted that it should not be removed to any new place without due
notice.

Footnote 536:

See Prof. Maitland, _Select Pleas of the Crown_, xiii.-xvi.

III. _Effects of Magna Carta on the genesis of the three Courts of
Common Law._ The ultimate consequences of the accomplishment of this
reform reached further than was foreseen. Intended merely to remove from
litigants a practical grievance of frequent occurrence, it had important
indirect effects on the development of the English Constitution. By
securing for common pleas a permanent home, it gave an impetus to the
disintegrating tendencies already at work within the many-sided
household of the king. It contributed somewhat to the slow process
whereby the _Curia Regis_, as an administrative organ, was
differentiated from the same _Curia_ as the dispenser of justice. It
helped forward the cleavage destined to divide completely the future
Courts of Westminster from the Court of St. James’s and from Downing
Street. Nor was this all: the special treatment accorded to “common
pleas” emphasized the distinction between them and royal pleas, and so
contributed to the splitting up of the same _Curia Regis_, on its
judicial side, into two distinct tribunals. One little group of judges
were set apart for hearing common pleas, and were known as "the king’s
Judges of the Bench," or more briefly as “the Bench,” and at a later
date as the Court of Common Pleas. A second group, reserved for royal
pleas, became the court _Coram Rege_, known subsequently as the Court of
King’s Bench. There were thus two benches: a common bench for common
pleas and a royal bench for pleas of the Crown.[537]

-----

Footnote 537:

Cf. _supra_, 109.

-----

The double process by which these two small courts separated themselves
slowly from the parent court and from each other began long prior to
Magna Carta, and was not completed before the close of the thirteenth
century. These benches were also closely linked with a third bench,
known for centuries as the Court of Exchequer, which was in its origin
merely one department of that government bureau, the king’s financial
Exchequer—that office in which money was weighed and tested and the
royal accounts drawn up. Many disputes or pleas affecting Crown debts
and debtors had to be there decided, and in due time a special group of
officials were set aside to try these. These men, called, not judges,
but “barons of the exchequer,” formed what was in fact, though not in
name, a third bench or court of justice.

All three of the Courts of Common Law—the Court of King’s Bench, the
Court of Common Pleas, and the Court of Exchequer—were thus offshoots of
the king’s household. In theory, each of these ought to have confined
itself to the special class of suits to which it owed its origin—to
royal pleas, common pleas, and exchequer pleas respectively; but by a
process well known to lawyers and law-courts in all ages, each of them
eagerly encroached on the jurisdictions and the fees appropriate to the
others, until they became, for most purposes, three sister courts of
similar and co-ordinate authority. They were bound to decide all suits
according to the technical and inflexible rules of common law; and their
jurisdiction thus required a supplement, which was supplied by the
genesis of the Court of Chancery, dispensing, not common law, but
equity, which professed to give (and, for a short time, actually did
give) redress on the merits of each case as it arose, unrestrained by
precedents and legal subtleties.

IV. _The Evolution of the Court of Common Pleas._ The comment usually
made upon the present chapter is that we have here the origin of the
Court of Common Pleas. Now, legal institutions do not spring,
full-fledged, into being. The Court of Common Pleas, like its sister
Courts of King’s Bench and Exchequer, was the result of a long process
of gradual separation from a common parent stem. Prior to 1215 several
tentative efforts seem to have been made towards establishing each of
these. On the other hand, it is probable, nay certain, that long after
1215 the Court of Common Pleas did not completely shake off either its
early dependence upon the _Curia Regis_, or yet its close connection
with its sister tribunals.

Three stages in the process of evolution may be emphasized. (1) The
earliest trace of the existence of a definite bench of judges, set apart
for trying common pleas, is to be found in 1178, not in 1215. When Henry
II. returned from Normandy in the former year, he found that there had
been irregularities in his absence. To prevent their recurrence, he
effected certain changes in his judicial arrangements, the exact nature
of which is matter of dispute. A contemporary writer[538] relates how
Henry chose two clerks and three laymen from the officials of his own
household, and gave to these five men authority to hear all complaints
and to do right “_and not to recede from his court_.” It was long
thought that this marked the origin of the Court of King’s Bench, but
Mr. Pike[539] has conclusively proved that the bench thus established
was the predecessor, not of the royal bench, but rather of the bench for
common pleas.

-----

Footnote 538:

The chronicler known as Benedict Abbot, I. 107 (Rolls Series).

Footnote 539:

_House of Lords_, 32.

-----

In 1178, then, these five judges were set apart to hear ordinary suits;
but they were specially directed not to leave Henry’s court; so that
common pleas still “followed the king,” even ordinary litigants in
non-royal pleas having to pursue the king in quest of justice as he
passed from place to place in quest of sport.

It must not be supposed that the arrangement thus made in 1178 settled
the practice for the whole period of thirty-seven years preceding the
grant of Magna Carta. On the contrary, it was merely one of many
experiments tried by that restless reformer, Henry of Anjou; and the
separate court then instituted may have been pulled down and set up
again many times. The bench which appears in 1178 had probably, at best,
a fitful and intermittent existence. There is evidence, however, that
some such court did exist and did try common pleas in the reigns of
Richard and John.[540] On the other hand, this tribunal had in John’s
reign ceased to follow the king’s movements habitually (thus
disregarding the decree of 1178), and had established itself at
Westminster.[541] It was in 1215 considered an abuse for John to try a
common plea elsewhere. Times had changed since his father had granted as
a boon that a set of judges should remain constantly at “his court” to
try such cases.

-----

Footnote 540:

See Prof. Maitland, _Sel. Pl. Crown_, xiii.-xvi.; see also in _Pipe
Roll_, 7 John (cited Madox, I. 791) how money was paid that a plea
pending before the _Justiciarii de banco_ might be heard _coram rege_.
This entry proves that in 1205 there were two distinct courts, one
known as _de banco_ and the other as _coram rege_.

-----

Footnote 541:

See Maitland, _Ibid._

-----

(2) Magna Carta in 1215 gave authoritative sanction to the already
recognized rule that common pleas should be tried at Westminster,
instead of moving with the king. No exceptions were henceforth to be
allowed. Young Henry renewed this promise, and the circumstance of his
minority favoured its strict observance. A mere boy could not make royal
progresses through the land dispensing justice as he went. Accordingly,
all pleas continued for some twenty years to be heard at Westminster.
The same circumstances, which thus emphasized the stability of common
pleas (along with all other kinds of pleas) in one fixed place, may have
arrested the process of cleavage between the two benches. All the judges
of both courts sat at Westminster, and therefore there was the less need
for allocating the business between them with any exactitude. The two
benches were in danger of coalescing.

(3) About the year 1234 a third stage was reached. Henry began to follow
the precedent, set by his ancestors, of moving through his realm with
judges in his train, hearing pleas wherever he stopped. While one group
of judges went with him, another remained at Westminster. Some way of
allocating the business had therefore to be found. Common pleas, in
accordance with Magna Carta, remained stationary; while pleas of the
Crown went on their travels. The split between the two benches now
became absolute. Each provided itself with separate records. From the
year 1234, two continuous series of distinct rolls can be traced, known
respectively as _rotuli placitorum coram rege_ and _rotuli placitorum de
banco_. If any date in the history of one law court, which is in process
of becoming two, can be reckoned as specially marking the point of
separation, it should be that at which separate rolls appear. The
court’s _memory_ lies in its records, which are thus closely associated
with its identity. In 1234 the common bench and the royal bench had
become distinct.[542] Evidence drawn from a few years later proves that
a definition of common pleas had been arrived at and that the rule which
required them to be held “in a fixed place” was insisted on. While Henry
and his justices sat in judgment at Worcester in 1238, a litigant
protested against his suit being tried before them. It was a “common
plea” and therefore, he argued, ought not to follow the king, in
violation of Magna Carta. At Westminster only, not at Worcester or
elsewhere, could his case be heard.[543]

-----

Footnote 542:

See Maitland, _Sel. Pl. Crown_, xviii.

Footnote 543:

See _Placitorum Abbreviatio_ (p. 105) 21 Henry III., cited Pike,
_House of Lords_, p. 41. Cf. also Bracton’s _Note Book_, pleas Nos.
1213 and 1220.

-----

With royal pleas, however, it was very different: for long they
continued to follow the king’s person without any protest being raised;
and the Court of King’s Bench did not finally settle at Westminster for
nearly a century after the Court of Common Pleas had been established
there. So late as 1300, Edward I. ordained by the _Articuli super
cartas_ that “the Justices of his Bench” (as well as his Chancellor)
should follow him so that he might have at all times near him “some
sages of the law, which be able duly to order all such matters as shall
come into the Court at all times when need shall require.”[544]

-----

Footnote 544:

28 Edward I. c. 5.

-----

V. _Erroneous Views._ In the reign of Edward I. the real motive of this
chapter of Magna Charta—so quickly had the organization of the law
courts progressed—had already been lost sight of. The day of wandering
common pleas, such as that of Richard d’Anesty, had been long forgotten.
Some litigants of Edward’s time had, however, a different grievance of
their own, connected with the hearing of their suits. The Court of
Exchequer was willing, for an adequate consideration, to place its
specially potent machinery, devised originally for the king’s exclusive
use, at the disposal of private creditors, thus treating “common pleas”
as “exchequer pleas.” Ordinary debtors, summoned as defendants before
the _barones scaccarii_, were subjected to harsher treatment than they
would have experienced elsewhere. It was not unnatural that defendants
who found themselves thus hustled should read the words of Magna Carta
relative to “common pleas” as precisely suited to their own case. They
made this mistake the more readily as the original motive had been
forgotten. The Charter was thus read as preventing the stationary Court
of Exchequer (not the constantly moving King’s Bench) from hearing
ordinary suits. This erroneous view received legislative sanction. The
_Articuli super cartas_ in 1300 declared that no common pleas should
thenceforth be held in the Exchequer “contrary to the form of the Great
Charter.”[545]

-----

Footnote 545:

See 28 Edward I. c. 4. Many previous attempts had been made to keep
common pleas out of the Exchequer _e.g._ the writs of 56 Henry III.
and 5 Edward I. (cited Madox, II. 73-4) the so-called statute of
Rhuddlan (12 Edward I., see _Statutes of Realm_, I. 70). Madox also
(II. 73-4) takes the erroneous view that c. 17 of the Great Charter
relates to the Exchequer; so does Mr. Bigelow (_History of Procedure_,
130–1), who goes further astray by explaining the point of the
grievance as the difficulty of getting speedy justice at the
Exchequer, because the barons refused to sit after their fiscal
business had been finished, at the Easter and Michaelmas sessions.
This is an error: the Barons of Exchequer made no difficulty about
hearing pleas: quite the contrary. Plaintiffs were equally eager to
purchase the writs which they were keen to sell: it was only
defendants (debtors) who objected to the rapid and stringent procedure
for enforcing payment adopted by this efficient court. The sheriffs
and others waiting to render accounts before the Exchequer also
protested against the congestion of business produced at the Exchequer
by the eagerness of litigants who pressed there for justice. See
Madox, II. 73. Plaintiffs had no reason to complain.

-----

This is a clear misinterpretation of the intention of Magna Carta. The
Exchequer never “followed the Crown”; it stayed at Westminster where its
offices, tallies, and pipe rolls were. The Charter would have expressed
itself in widely different words if it had desired to exclude common
pleas from the Exchequer. The _Articuli super Cartas_, however,
attempted what the Charter of 1215 did not. After 1300 it was clearly
illegal to hold any pleas in the Exchequer, unless such as affected the
Crown and its ministers. Subsequent statutes confirmed this; but their
plain intention was always defeated by the ingenious use of legal
fictions and the connivance of the Barons of Exchequer, who welcomed the
increase of their fees which kept pace with the increase of
business.[546]

-----

Footnote 546:

The fiction of “Crown debtors” is well known: plaintiffs obtained a
hearing in the Exchequer for their common pleas by alleging that they
wished to recover debts due to them “in order to enable them to answer
the debts they owed to the king.” See Madox, II. 192.

-----

The evil directly attacked by Magna Carta was something quite
different—an evil wider, more pressing and less technical, namely, the
practice of causing ordinary litigants, with their legal advisers and
witnesses, to dance attendance on a constantly moving court.

CHAPTER EIGHTEEN.

Recogniciones de nova dissaisina, de morte antecessoris, et de ultima
presentacione, non capiantur nisi in suis comitatibus et hoc modo; nos,
vel si extra regnum fuerimus, capitalis justiciarius noster, mittemus
duos justiciarios per unumquemque comitatum per quatuor vices in anno,
qui, cum quatuor militibus cujuslibet comitatus electis per comitatum,
capiant in comitatu et in die et loco comitatus assisas predictas.

Inquests of _novel disseisin_, of _mort d’ancestor_, and of _darrein
presentment_, shall not be held elsewhere than in their own
county-courts,[547] and that in manner following,—We, or, if we should
be out of the realm, our chief justiciar, will send two justiciars
through every county four times a year, who shall, along with four
knights of the county chosen by the county, hold the said assizes[548]
in the county court, on the day and in the place of meeting of that
court.

-----

Footnote 547:

“_Comitatus_” indicates both the county where the lands lay and the
court of that county. It was originally the sphere of influence of a
comes or earl. Cf. _supra_, c. 2, (p. 238, n.)

Footnote 548:

“The _said_ assizes” were previously called, not assizes but
“inquests” (_recogniciones_), a wider term of which the three petty
assizes here named were three special applications.

-----

Provision is thus made for holding before the king’s travelling
justices, frequently and in a convenient manner, three species of
judicial inquests known as “the three petty assizes.” These are of
exceptional interest, not only in relation to Magna Carta, but from
their intimate connection with several constitutional problems of prime
importance; with the reforms of Henry II. on the one hand, and with the
genesis of trial by jury and of the Justices of Assize on the other.

I. _The Curia Regis and the travelling Justices._ From an early date,
certainly from the accession of Henry I., it was the Crown’s practice to
supplement the labours which its officials conducted within the
precincts of the royal exchequer by the occasional despatch of chosen
individuals to inspect the provinces in the royal interests, collecting
information and revenue, and, incidentally, hearing lawsuits. Justice
was thus dispensed in the king’s name by his delegates in every shire of
England, and a distinction arose between two types of royal courts: (1)
_the King’s Council and its offshoots_ (including the three courts of
common law and the court of chancery) which at first followed the king’s
person, but gradually, as already shown,[549] found a settled home at
Westminster; and (2) _the courts of the itinerant justices_ which
exercised such delegated authority as the Crown chose from time to time
to entrust to them. The natural sphere of the labours of these royal
commissioners as they passed from district to district was the court of
each shire, specially convened to meet them. They formed in this way the
chief link between the old local popular courts and the system of royal
justice organized by Henry II.,[550] subordinating the former to the
latter, until the county courts virtually became royal courts. These
travelling justices passed through two stages, two different types
receiving royal recognition at different periods, the Justices in Eyre
and the Justices of Assize respectively.

-----

Footnote 549:

See _supra_, c. 17.

Footnote 550:

Cf. _supra_, p. 106.

-----

(_a_) _The Justices in Eyre_ were the earliest form of travelling
judges, though their original duties were rather financial and
administrative, than strictly judicial. Their history extends from the
reign of Henry I. to the end of the fourteenth century.[551] Their
outstanding characteristics were the sweeping nature of the commissions
under which they acted (_ad omnia placita_), the harsh and drastic way
in which they used their authority, and their intense unpopularity.
Their advent was dreaded like a pestilence: each district they visited
was left impoverished by fines and penalties. On one occasion, the men
of Cornwall “from fear of their coming, fled to the woods.”[552]

-----

Footnote 551:

See W. S. Houldsworth (_History of English Law_, p. 115), who cites
1397 as the date of the final abolition of Eyres.

Footnote 552:

This was in 1233: see Pollock and Maitland, I. 181.

-----

An eyre was only resorted to at long intervals—every seven years came to
be the recognized term—and was intended as a severe method of punishing
delinquencies and miscarriages of justice occurring since the last one,
and of collecting arrears of royal dues. It was not a visit from these
universally-hated Justices of Eyre that the barons in 1215 demanded four
times a year.

(_b_) _The Justices of Assize_ were also travelling judges, but in their
original form at least, possessed hardly another feature in common with
the Justices in Eyre. Their history extends from a period not earlier
than the reign of Henry II. down to the present day.[553] They seem to
have been popular from the first, as their primary function was to
determine pending suits by a rational and acceptable form of procedure;
while the scope of their jurisdiction, although gradually extended as
their popularity increased, was at all times limited strictly by the
express terms of their commissions. They were regarded not as royal
tax-gatherers armed with harsh powers of coercion, but as welcome
bearers of justice to the doors of those who needed it.

-----

Footnote 553:

Blackstone, _Commentaries_, III. 58, assigns 1176, (the assize of
Northampton) as the date of their institution.

-----

At first their duties were confined to one species of judicial work,
namely, to presiding at enquiries of the kind specially mentioned in the
text. These particular inquests were known as “assizes,” and the new
species of travelling judges were hence called “Justices of Assize,” a
name which has clung to them for centuries, although their jurisdiction
has been gradually increased till it now includes both civil and
criminal pleas of every description, and although meanwhile the
invention of new forms of process has superseded the old “assizes,” and
at last necessitated their total abolition.[554] They are still
“justices of assize” in an age which knows nothing of assizes.

-----

Footnote 554:

See Statute 3 and 4 William IV. c. 27 §§ 36-7. The last actual case of
a Grand Assize occurred in _Davies_ v. _Loundes_, in 1835 and 1838 (1
Bing. N. C. 597, and 5 Bing. N. C. 161).

-----

II. _The Nature and Origin of the three Petty Assizes._ The institution
of the "assizes"—particular forms of the sworn inquest—occupied a
prominent place among the expedients by which Henry II. hoped to
substitute a more rational procedure for the form of proof known as
trial by combat.[555]

-----

Footnote 555:

The name “Assize” is sometimes a source of confusion, because of the
various meanings which attach to it. (1) Originally it denoted a
session or meeting of any sort. (2) It came to be specially reserved
for sessions of the king’s Council. (3) It was applied to any
Ordinance enacted by the king in such a session, _e.g._ the Assize of
Clarendon or the Assize of Northampton. (4) It was extended to every
institution or procedure established by such royal ordinance, but (5)
more particularly applied to the institutions or procedures known as
the Grand Assize, and the Petty Assizes, from which the “Justices of
Assize” took their name. (6) Finally, it denotes at the present day a
“session” of these Justices of Assize, thus combining something of its
earliest meaning with something of its latest. In certain contexts it
has other meanings still, _e.g._ (7) an assessment or financial burden
imposed at a “session” of the king’s council or of some other
authority.

The _duellum_, introduced at the Norman Conquest, remained for a century
thereafter the chief method in use among the upper classes for
determining all serious pleas or litigations. Gradually, however, it was
confined to two important groups of pleas, one civil and the other
criminal: namely, appeals of treason and felony on the one hand, and
suits to determine the title to land on the other.[556] This process of
restriction was accelerated by the deliberate policy of Henry II., who
attempted, indeed, to carry it much further, devising machinery which
provided for the defendant or accused party, wherever possible, an
option by resorting to which he could, in an ever increasing variety of
circumstances, escape trial by battle altogether. Under chapter 36 will
be explained the expedient adopted for evading combat in an appeal of
treason or felony. The present chapter relates to the procedure devised
by Henry for superseding the _duellum_ in certain important groups of
civil pleas,[557] and incidentally affords proof that this part of his
reforms had already become popular with the opponents of the Crown. The
frequent use of the three Petty Assizes was now insisted on, although
the Grand Assize was still viewed askance for reasons to be explained in
connection with chapter 34.

-----

Footnote 556:

See Neilson, _Trial by Combat_, 33–6, and authorities there cited.

Footnote 557:

Cf. _supra_, pp. 103-4 for the place of “combat” in legal procedure;
and pp. 108-9 for Henry’s policy in discouraging it. For the later
history of trial by battle, see _infra_, under c. 36.

-----

(1) _The Grand Assize_ is not mentioned in Magna Carta; but some
acquaintance with it is a necessary preliminary to a proper appreciation
of the Petty Assizes. In the troubled reign of Stephen—which was rather
the reign of anarchy in his name—lands changed hands frequently. This
left to his successor a legacy of quarrels, too often leading to
bloodshed. There was hardly an important estate in England to which, at
Henry’s accession, two or more rival magnates did not lay claim.
Constant litigations resulted, and the only legal method of deciding the
issue was the _duellum_.

At some uncertain date, near the commencement of his reign, Henry II.
introduced a startling innovation. The holder of a property _de facto_
(that is the man in actual enjoyment of the estate in virtue of a _bona
fide_ title), when challenged to combat by a rival claimant was allowed
an option: he might force the claimant (if the latter persisted) to
refer the whole matter to the oath of twelve knights of the
neighbourhood. Henry’s ordinance laid down careful rules for the
appointment of these recognitors. Four leading knights of the whole
county were first to be chosen, on whom was placed the duty of selecting
twelve knights of the particular district where the lands lay, and
these, with all due solemnity and in presence of the king’s justiciars,
declared upon oath to which suitor the lands belonged. Their decision
was final, and determined the question of ownership for all time
coming.[558] The name Grand Assize was applied alike to the procedure
and to the knights who gave the verdict. The twelve knights thus
anticipated the functions of a modern jury, while the king’s justiciars
acted like the presiding judge at a modern trial.[559]

-----

Footnote 558:

See Glanvill, II. 7.

Footnote 559:

The various steps in the procedure ought to be clearly grasped, (_a_)
A claimant challenged the title of the actual tenant in the court
baron of the lord, from whom the tenement was held, and offered battle
by a champion, who was supposed to be a witness. (_b_) The tenant (now
become a defendant) applied to the king for a royal writ, the issue of
which, _ipso facto_, stopped all procedure in the court baron, (_c_)
The claimant (plaintiff) had thus to make the next move; and Henry’s
ordinance left only one move which he could make, namely to apply for
a new royal writ, but one of a different kind. This new writ referred
the question of title to twelve knights of the Grand Assize. (_d_)
Before these could be appointed and give their verdict, many
formalities and delays necessarily intervened, involving expensive
journeys to the king’s _Curia_, first by the four appointing knights
and afterwards by the twelve appointed. Months and even years might
elapse before the final verdict was obtained. This ingenious reform,
while superseding trial by battle, incidentally superseded also the
jurisdiction of mesne lords. Hence the Grand Assize never became
popular with the magnates. Cf. under c. 34.

-----

Valuable as was this innovation, it had one obvious defect. The option
it conferred might sometimes be usurped by the wrong man. It was
intended to operate in the interests of order and justice by favouring
the peaceable holder _de facto_; but what if a turbulent and lawless
claimant, scorning an appeal to legal process, took the law into his own
hands, evicted the previous holder by the rude method of self-help, and
thereafter claimed the protection of Henry’s ordinance? In such a case
the man of violence—the holder _mala fide_—would enjoy the option
intended for his innocent victim.

(2) _The petty assizes_ may, perhaps, be regarded as the outcome of
Henry’s determination to prevent such misuse of his new engine of
justice. If one claimant alleged that the other had usurped his rights
by violence or fraud, the king allowed the preliminary plea thus raised
to be summarily decided by the oath of twelve local landowners,
according to a procedure known as a petty assize. These petty assizes,
of which there were three kinds, all related to questions of
“possession,” as opposed to questions of “ownership,” which could only
be determined by battle or by the Grand Assize.

(_a_) _The assize of novel disseisin._ The word “seisin,” originally
synonymous with “possession” in general, was gradually restricted by
medieval lawyers to the possession of real estate. “Disseisin” thus
meant the interruption of seisin or possession of land; and was the
technical term applied to such violent acts of eviction as were likely
to defeat the intention of Henry’s ordinance of the Grand Assize.
“Novel” disseisin implied that such violent ejection was of
comparatively recent date, for a summary remedy could only be given
where there had not been undue delay in applying for it. The first of
the petty assizes, then, was a rapid and peaceable method of
ascertaining by reference to sworn local testimony whether an alleged
recent eviction had really taken place or not. Without any of the law’s
delays, without any expensive journeys to the king’s Court or to
Westminster, but in a rapid manner and in the district where the lands
lay, twelve local gentlemen determined upon oath all allegations of this
nature. If the recognitors of the petty assize answered “Yes,” then the
evicted man would have “seisin” immediately restored to him, and along
with “seisin” went the valued option of determining what proof should
decide the "ownership"—whether it should be battle or the Grand Assize.
An ordinance instituting this most famous of the three petty assizes was
issued probably in 1166, a year fertile in legal expedients, and formed
a necessary supplement to the ordinance of the Grand Assize, preventing
all danger that the option intended for the man of peace should be
usurped by the man of violence.[560]

(_b_) _The assize of mort d’ancestor._ The protection afforded to the
victim of a “novel disseisin” did not remove all possibility of justice
miscarrying. Interested parties, other than the man forcibly ejected,
even his heirs, were left unprotected. Further, an heir might be
forcibly deprived of his tenement either by his lord or by some other
rival claimant before he had an opportunity to take possession; never
having been “in seisin,” he could not plead that he had suffered
“disseisin.” For the benefit of such an heir, a second petty assize,
known as "mort d’ancestor," was invented.[561] This is mentioned in
article 4 of the Assize of Northampton, an ordinance issued by Henry in
1176; and this earliest known reference probably marks its origin.
Procedure, essentially similar to, though not quite so speedy or
informal as, that already described was thus put at the heir’s disposal.
If successful, he took the lands temporarily, subject to all defects in
his ancestor’s title, leaving as before the question of absolute
ownership to be determined (if challenged) by the more cumbrous
machinery of the Grand Assize.

-----

Footnote 560:

The date of the ordinance of the Grand Assize is not known. It has
been argued that its origin may be traced to an earlier date than that
of the assize of novel disseisin (see Mr. J. H. Round in the
_Athenaeum_ for 28th January, 1899); but in any case the _logical_
sequence seems to be that given in the text. The question of
_chronological_ sequence is still open.

Footnote 561:

At so late a date as 1267 it was found necessary to recognize by
statute the right of the heir who had come of age to oust his guardian
from his lands by an assize of _mort d’ancestor_. See Statute of
Marlborough, c. 16.

(_c_) _The assize of darrein presentment._ Advowson or the right of
appointing the incumbent to a vacant church benefice was then, as now, a
species of real estate. Such patronage was highly prized, affording as
it did an opportunity of providing a living for a younger son or needy
relative; or it might be converted into ready cash. Disputes often arose
both as to the possession and as to the ownership of advowsons. Any one
who claimed the absolute right or property as against the holder must do
so by battle or the Grand Assize, exactly as in the case of any other
form of real estate; and the Charter says nothing on this head.[562] On
the other hand, the less vital question of possession might be more
rapidly determined. If a benefice fell vacant, and each of two
proprietors claimed the patronage, the Church could not remain without a
shepherd, for years perhaps, until the question of title was decided.
No; the man in possession was allowed to make the appointment. But who
was the man in possession? Clearly he who had (or whose father had)
presented a nominee to the living when the last vacancy occurred. Even
here there was room for dispute as to the facts. Twelve local men
decided which claimant had actually made the last appointment (the
“darrein presentment”); and the claimant thus preferred had a legal
right to fill up vacancies, remaining in possession until someone proved
a better title by battle or the Grand Assize.

-----

Footnote 562:

Such was the law as late as 1285. The Statute of Westminster II. (13
Edward I. c. 5) authoritatively explains that, when any one had
wrongfully presented a clerk to a vacant church, the real patron could
not recover his advowson except by a writ of right “_quod habet
terminari per duellum vel per magnam assisam_.”

-----

All three forms of the petty assize were merely new applications by
Henry Plantagenet of the royal procedure known in England, since the
Norman Conquest, as _inquisitio_ or _recognitio_.[563]

-----

Footnote 563:

The relations of the assizes to the ancient _inquisitio_ and to the
modern jury are discussed _supra_, pp. 158-163.

-----

III. _The Assizes in 1215._ The petty assizes, when invented by Henry
II., were resented bitterly as innovations; but public opinion, half a
century later, had abundantly vindicated the wisdom of this part of his
reforms. The insurgent barons in 1215 were far from demanding their
abolition; their new grievance was rather that sessions of the justices
of assize were not held often enough. They prescribed the way in which
these assizes, now grown so popular, were to be held, and several points
were specially emphasized. (1) No inquiry of the kind was to be held
elsewhere than in the county where the property was situated. Justice
was in such cases to be brought to every landowner’s door, although
pleas of the Crown might still follow the king, and ordinary common
pleas had to be taken to Westminster. This was intended to save expense
and to meet the convenience of litigants, of those who served on
assizes, and of all concerned.[564] Within two years, however, it was
seen that this provision went too far. It was more convenient to hold
certain inquiries before the Bench at Westminster than in the particular
locality. The reissue of 1217 therefore made two important
modifications: (_a_) All assizes of darrein presentment were thereafter
to be taken before “the Justices of the Bench.” (_b_) Any assize of
novel disseisin or of mort d’ancestor revealing points of special
difficulty, might also be reserved for the decision of the Bench. An
element of uncertainty was thus introduced, of which the Crown took
advantage. In a reported case of the year 1221 it was decided that an
assize of mort d’ancestor should be held in its own county, not at
Westminster.[565]

-----

Footnote 564:

Thus two successive chapters of Magna Carta emphasize two divergent
tendencies: c. 17 had demanded that “common pleas” should all be held
at Westminster, while c. 18 demands that “assizes” should _not_ be
taken there. In both cases, the object was to consult the convenience
of litigants.

Footnote 565:

See Bracton’s _Note Book_, case No. 1478; a case also cited by Coke
(_Second Institute, proem._). If this assize had presented points of
special difficulty it might have been held at Westminster without
violating Magna Carta.

-----

(2) John’s Charter further insists on quarterly circuits of Justices of
Assize; so that litigants in every county of England might have four
opportunities each year of having their disputes amicably settled. Such
excessive frequency was quite uncalled for, and involved unnecessary
expense on the king, and an amount of labour on his officers out of all
proportion to the good effected. The Charter of 1217, accordingly,
provided that a circuit should be made only once a year. In 1285,
however, it was enacted that they might be held three times a year, but
not oftener.[566]

-----

Footnote 566:

13 Edward I. c. 30. Stephen, _History of Criminal Law_, 105–7, gives
further details.

-----

(3) The Charter speaks of the two justices and of the four county
knights, but says nothing of the twelve knights from the immediate
neighbourhood of the disputed property. The omission has no special
significance. Magna Carta had no directions to convey on this matter,
and therefore it kept silence; but the presence of the twelve must have
been presumed, since their verdict formed the essential feature of the
entire procedure.[567] The twelve formed the jury, and the two justices
were the judges, while the chief duty of the four was to select the
twelve. The chapter directed the justices “to hold the assizes along
with the four knights”; but it does not appear whether the latter were
to sit as local assessors of the court, or to serve along with the
twelve recognitors, or to act as a link between the two.

-----

Footnote 567:

See Assize of Northampton, c. 4.

-----

(4) One fact about them was clearly stated, namely, the mode of their
appointment. The four knights were to be “elected” in the county court
(_cum quatuor militibus ... electis per comitatum_), and much emphasis
has been laid on this provision by historians searching for ancient
prototypes of modern institutions. These knights have been warmly
welcomed as county magistrates elected on a more or less extended
suffrage.[568]

-----

Footnote 568:

See, _e.g._ Stubbs, _preface_ to R. Hoveden, IV. xcviii.; Blackstone,
_Great Charter_, xxxvi.; Medley, _Engl. Const. History_, 130.

-----

As the provisions of the reissue of 1217 are more carelessly expressed,
and as in particular they contain no word implying “election,” it has
been assumed that a change in the mode of appointment was intended; that
a step tentatively taken towards representative local government in 1215
was deliberately retraced two years later.[569] “_Electus_” however, in
medieval Latin was a vague word, differing widely from the ideas usually
associated with a modern “election,” and applied indiscriminately to all
methods of appointment or selection, even to the proceedings of officers
engaged by Edward I. to compel the enlistment of the best soldiers
available for his army. The twelve knights were to be “appointed,” not
“elected,” in the county court, and it remains doubtful whether the
sheriff, the magnates, or the body of the suitors, would have secured
the chief share in the appointment. No evidence is forthcoming that any
special importance was attached in 1217 to the use of the word
“_electus_,” and its omission may have been due to inadvertence.

-----

Footnote 569:

Blackstone, _Ibid._, points out these changes in the charter of 1217:
“the leaving indefinite the number of the knights and the justices of
assize, the abolishing of the election of the former, and the reducing
the times of taking assizes to once in every year.”

-----

IV. _An Erroneous View._ Henry Hallam, commenting on this chapter,
seems to have misapprehended the issues at stake. "This clause stood
opposed on the one hand to the encroachments of the king’s court,
which might otherwise, by drawing pleas of land to itself, have
defeated the suitor’s right to a jury from the vicinage: and, on the
other, to those of the feudal aristocracy, who hated any interference
of the Crown to chastise their violations of law, or control their own
jurisdiction."[570] Hallam thus interprets the chapter as denoting a
triumph of the old local popular courts over both the king’s courts
and the courts of the feudal magnates. It denoted no such thing, but
marked in reality a triumph (so far as it went) of the king’s courts
over the tribunals of the feudal magnates—over the courts baron, as
they were afterwards called, the most important of the three courts
into which manorial jurisdictions afterwards split. The assizes, it is
true, were to be taken in the county court, but they were to be taken
there by the king’s justices, not by the sheriff. The county courts by
this time had fallen completely under the domination of the king, and
were to all intents and purposes (and in especial for this purpose)
royal courts. The present chapter is thus conclusive evidence of the
triumph of the king’s justice over all rivals in three important
groups of pleas. Royal justice was the best article in the market,
and, in spite of all defects, deserved the popularity which in this
province it had evidently won, even among the barons whose
jurisdiction it was superseding.

-----

Footnote 570:

See _Middle Ages_, II. 464.

-----

V. _Later History of the Justices of Assize._ Whatever may have been the
exact date when there first went on tour throughout England travelling
judges entitled to the description of “Justices of Assize,” such
circuits, once instituted, have continued to be held at more or less
regular intervals from the beginning of the thirteenth century to the
present day. Their jurisdiction steadily widened under successive kings,
from Henry II. to Edward III.; and they gradually superseded the older
Justices of Eyre, taking over such of their functions as were not
inconsistent with the change that was gradually transforming the
medieval into the modern system of justice.[571] It was the custom for
the Crown to issue new commissions to the justices as they set out upon
each new circuit. Five distinct types of such commissions conferred
jurisdiction over five different departments of judicial business.

-----

Footnote 571:

Cf. Coke, _First Institute_, 293 b.: “As the power of justices of
assises by many acts of parliament and other commissions increased, so
these justices itinerant by little and little vanished away.”

-----

(1) _The commission of assize_ was the earliest of all, authorizing them
to hold petty assizes, but not the grand assize. Of this sufficient has
already been said.

(2) _The commission of nisi prius_ conferred a wider civil jurisdiction,
embracing practically all the non-criminal pleas pending at the time in
the counties which they visited. These powers were originally based on
the terms of the Statute of Westminster II., which became law in
1285,[572] and directed that all civil pleas (under certain exceptions)
might be heard in their own counties. Thenceforward most ordinary suits
might be tried either locally before the justices of assize, or else
before the bench at Westminster. The statute directed, however, that
sheriffs, in summoning jurors to Westminster, were only to do so
conditionally—jurors were to attend there unless already (_nisi prius_)
the justices of assize had come into the county; that is, if the
justices arrived meanwhile in the locality, the jurors and all others
concerned were saved a journey, and the pleas in question were heard on
the spot. The commissions under which the travelling justices heard
locally such civil pleas were therefore known as “Commissions of _nisi
prius_.”

-----

Footnote 572:

13 Edward I. c. 30.

-----

(3) _The commission of gaol delivery_ was, subsequently to 1299,
invariably conferred on the justices of assize, in accordance with a
statute of that year,[573] authorizing them to inspect all gaols and
enquire into all charges against prisoners, and to set free those
unjustly detained. Previously, similar powers had been spasmodically
conferred on separate commissioners, sometimes quite unfit for such a
trust, who had too often abused their authority.

-----

Footnote 573:

27 Edward I. c. 3.

-----

(4) _Commissions of Oyer and Terminer_, issued spasmodically from as
early a date as 1285,[574] to more or less responsible individuals, were
from 1329 onwards conferred exclusively on the justices of assize, who
thus obtained authority[575] “to hear and determine” all criminal pleas
pending in the counties they visited. This, combined with the commission
of gaol delivery, amounted to a full jurisdiction over crimes and
criminals of every kind and degree; just as the commissions of assize
and _nisi prius_ combined gave them full jurisdiction over all civil
pleas.[576]

-----

Footnote 574:

13 Edward I. c. 39; see Stephen, _Hist. Criminal Law_, p. 106.

Footnote 575:

2 Edward III. c. 2. _Ibid._, 110.

Footnote 576:

It is unnecessary to do more than notice the exceptional “commissions
of trailbaston,” supposed to date from the Statute of Rageman (1276),
conferring special powers for the suppression of powerful wrongdoers.
These were soon superseded by the commissions of oyer and terminer.

-----

(5) _The ordinary commission of the peace_ was invariably issued to the
justices of assize from the reign of Edward III., conferring on them
powers similar to those of the local justices of peace in every county
which they might visit.

By a process of the survival of the fittest the justices of assize, from
the small beginnings referred to in John’s Great Charter, thus gradually
gathered to themselves the powers exercised originally by various rival
sets of commissioners; and they have continued for many centuries to
perform the functions conferred by these five different commissions,
forming a characteristic and indispensable part of the judicial system
of England.[577]

-----

Footnote 577:

Mr. W. S. Holdsworth, _Hist. Eng. Law_, 116–123, gives an admirable
and concise account of the justices and their commissions. For fuller
information see Stephen, _Hist. Criminal Law_, I. 97-111.

-----

CHAPTER NINETEEN.

Et si in die comitatus assise predicte capi non possint, tot milites et
libere tenentes remaneant de illis qui interfuerint comitatui die illo,
per quos possint judicia sufficienter fieri, secundum quod negocium
fuerit majus vel minus.

And if any of the said assizes cannot be taken on the day of the
county court, let there remain of the knights and freeholders who were
present at the county court on that day, as many as may be required
for the efficient making of judgments, according as the business be
more or less.

This supplement to the preceding chapter prescribed the course to be
followed when the press of other business had prevented some of the
assizes on the agenda from being disposed of on the court day. The
shiremoot lasted for one day only, and to hold an adjourned session of
all the suitors on the morrow would inflict hardship on those whose
presence was required elsewhere. The framers of the charter were met by
a dilemma in seeking to combine the rapid dispatch of business with the
minimum of inconvenience to those who came to make the court.

The Articles of the Barons had made two definite demands not readily
reconciled; namely that none save jurors and the parties to pending
suits should be summoned to meet the justices of assize on their
quarterly rounds (article 8); and that assizes should be “shortened”
(article 13), which simply meant that the law’s delays should cease.

The terms of Magna Carta, as befitted a carefully-drawn, business-like
document, were more precise. They made it clear that assizes in the
normal case should be held in the county court—a point upon which the
Articles had been silent. This was a salutary provision, since a healthy
publicity accompanied the proceedings of the full shire-moot. Nothing
was said of “shortening” the procedure; and the Charter showed its
appreciation of the fact that there might be more business than could be
got through in one day. If that happened, a compromise must be made
between the claims of litigants wishing their pleas hastened and the
desire of other people to be discharged from further attendance. The
justices were directed to complete their labours on the morrow, but were
forbidden to retain anyone in attendance except the actual parties to
suits and a sufficient number of jurors. Those whom Magna Carta thus
compelled to wait a second day were exactly those whose presence the
Articles had stipulated for upon the first day—not admitting, indeed,
the possibility that a second day might be required. The discrepancy
between the schemes of the two documents might be explained on the
supposition that the device of timing the visit of the justices with the
date of holding the monthly shiremoot was only thought of after the
Articles of the Barons had been sealed.[578]

-----

Footnote 578:

Subsequent practice did not conform to this rule. One _novel
disseisin_, or one _mort d’ancestor_ might be held by itself; and
complaint was made in 1258 that the sheriffs proclaimed in the market
places that all knights and freeholders must assemble for such an
inquest, and when they came not, amerced them at will (_pro voluntate
sua_). See Petition of Barons, c. 19 (Sel. Charters, 385).

-----

The Charter of 1217 made a different provision for the same contingency.
Unfinished assizes need no longer be taken in their own county on the
day following the county court, nor, indeed, on any other day. The
judges received full authority to bring them to a conclusion elsewhere
on their circuit according as it might suit their convenience. This
concession to the justices, taken in connection with the further
provisions of 1217, reserving all darrein presentments, together with
other assizes of any difficulty, for the decision of the bench, shows a
comparative disregard of the convenience of jurors, who might, in the
option of the justices, find themselves compelled either to follow the
assizes from shire to shire, or else to undertake the irksome journey to
Westminster, from which the Charter of 1215 had relieved them.[579]

-----

Footnote 579:

Subsequent legislation vacillated between two policies, actuated at
times by a desire to restrain the discretionary powers of the
justices; and at others by experience of the way in which strict
adherence to inflexible rules was found to inflict hardships upon
litigants. The Statute of Westminster II. (13 Edward I. c. 30)
confirmed the power of the justices to reserve cases of mort
d’ancestor for decision by the bench, and _per contra_ allowed assizes
of darrein presentment (which it associated in this connection with
inquests _quare impedit_) to be taken “in their own counties.” The Act
6 Richard II. c. 5 curtailed the discretionary powers previously
conferred, directing that justices assigned to take assizes and to
deliver gaols should hold sessions in the county towns in which the
shire courts were wont to be held. The Statute 11 Richard II. c. 11
once more relaxed this rule, alleging that it had resulted in the
inconvenience of suitors. Therefore authority was given to the
chancellor, with the advice of the justices, to determine in what
places assizes might be held, notwithstanding the provisions of the
Statute of five years previous.

-----

CHAPTER TWENTY.

Liber homo non amercietur pro parvo delicto, nisi secundum modum
delicti; et pro magno delicto amercietur secundum magnitudinem delicti,
salvo contenemento suo; et mercator eodem modo, salva mercandisa sua; et
villanus eodem modo amercietur salvo waynagio suo, si inciderint in
misericordiam nostram; et nulla predictarum misericordiarum ponatur,
nisi per sacramentum proborum hominum de visneto.

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 “contenement”; 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 neighbourhood.

This is the first of three consecutive chapters which seek to remedy
grave abuses connected with royal amercements. To understand fully what
these were requires some knowledge, not only of the system of legal
procedure of which they formed part, but also of previous systems.

I. _Three stages of criminal law._ The efforts made in medieval England
to devise machinery for suppressing crime took various forms. Three
periods may be distinguished.

(1) _The bloodfeud._ The earliest method of redressing wrongs of which
any evidence survives was the practice of retaliation, or the bloodfeud.
The injured man, or his heir if he were dead, took the law into his own
hands and exacted satisfaction by the aid of battle-axe or spear. This
right of vengeance, formerly clothed with the entire sanction of the
law, had practically disappeared before the dawn of authentic history in
England; but its previous existence may be confidently inferred from
certain traces which it left on the laws of a later period.

(2) _Fixed money-payments._ At some early, but uncertain, date it had
become customary to accept money in lieu of vengeance. The new practice,
at first exceptional, and applied to cases only of accidental injury,
was gradually extended to all cases in which the wronged individual was
willing to accept a compromise. It was made compulsory on evil-doers to
offer solatium in money for every crime committed, and finally it was
made compulsory also upon the injured man to accept it when offered. At
this stage the right of private revenge had become almost a thing of the
past. It was lawful only after the aggrieved individual had demanded,
and been refused, compensation at the recognized rate.

Various codes formulated intricate rules for determining the amounts
thus payable. Each man had his own money value or _wer_ (from the simple
freeman, reckoned at 200 shillings, up to the prelates and lay nobles,
estimated at much higher figures). These were the legal values at which
each man’s life was appraised. Smaller wrongs could be compensated by
smaller sums in name of damages, known as _bots_: so much for a foot, or
an eye, or a tooth. The king or other feudal lord exacted further
payment from the wrong-doer, under the name of _wites_, which are
sometimes explained as the price charged by the magistrate for enforcing
payment of the _wer_ or _bot_; sometimes as sums due to the community,
on the ground that every evil deed inflicts a wrong on society in
general, as well as upon its victim.

(3) _Amercements._ A third system succeeded. This was of extreme
simplicity and differed widely in many ways from the complicated system
it superseded. It is found in full working order very shortly after the
Norman Conquest, but was still regarded as an innovation at the
accession of Henry I. It is known as the system of amercements. None of
our authorities contains an entirely satisfactory account of how the
change took place, but the following suggestions may be hazarded. The
sums demanded from a wrong-doer, who wished to buy himself back into the
protection of the law, and into the community of well-doers, became
increasingly burdensome. He had to satisfy the claims of the victim’s
family, of the victim’s lord, of the lord within whose territory the
crime had been committed, of the church, mayhap, whose sanctuary had
been invaded, of other lords who could show an interest of any sort, and
finally of the king as lord paramount. It became practically impossible
to buy back the peace once it had been broken. The Crown, however,
stepped in, and offered protection on certain conditions: the culprit
surrendered himself and all that he had to the king, placing himself
“_in misericordiam regis_,” and delivering a tangible pledge (_vadium_)
as evidence and security of the surrender.[580]

-----

Footnote 580:

See Charter of Henry I. c. 8, which however, condemns the whole
practice among the other innovations of the Conqueror and Rufus.

-----

Although in theory the wrongdoer put his property unreservedly at the
king’s disposal, there was a tacit understanding that he should receive
in return, not only a free pardon, but also the restoration of the
balance of his effects, after the king had helped himself to a share.
Such a course, at first optional, would gradually come to be followed
with absolute uniformity. By-and-by, it was assumed that every culprit
wished to avail himself of this means of escape, and thus the words “in
mercy” were written in court records as a matter of course, after the
name of every one convicted of a crime.

It is easy to understand why the Norman kings favoured this system; for
the Crown thus got whatever it chose to demand, while other claimants
got nothing. Gradually, then, the old complicated system of _wers_ and
_bots_ and _wites_ became obsolete and was in time forgotten altogether;
the system of amercements reigned in its stead. Strictly speaking, the
man’s life and limbs and all that he had were at the king’s mercy.[581]
The Crown, however, found that it might defeat its own interests by
excessive greed; and generally contented itself with exacting moderate
sums. Soon, rules of procedure were formulated for its own guidance. The
amounts taken in each case were regulated partly by the wealth of the
offender, and partly by the gravity of the offence. Further, it became a
recognized rule that the amount should be assessed by what was
practically a jury of the culprit’s neighbours; and attempts were also
made to fix a maximum.[582]

-----

Footnote 581:

See _Dialogus de Scaccario_, II. xvi.

Footnote 582:

Cf. Pollock and Maitland, II. 511-4. There were, however, exceptions,
_e.g._ Henry II. would not accept money payments for certain forest
offences. Mutilation was inflicted. See Assize of Woodstock, c. 1, and
contrast Forest Charter of 1217, c. 10.

-----

Thus a sort of tariff grew up, defining the amounts to be exacted for
various offences of most general occurrence. The Crown and its officials
usually respected this in practice, but never formally abandoned the
right to demand more. Such payments were known as “amercements” and were
always technically distinguished from “fines” (or voluntary offerings).
Records, still extant, of the reign of John show us that for very petty
offences, men were constantly placed “in mercy”; for example, for
failure to attend meetings of the hundred or county court; for false or
mistaken verdicts; for petty infringements of the king’s forest rights;
and for a thousand other trivial faults. Every man who raised an action
and failed in it was amerced. It will be readily understood how
important it was that these amercements, forming so tempting a source of
revenue to the exchequer, should not be abused. The Charter of Henry I.
(chapter 8) had promised a remedy, drastic indeed but of a reactionary
and impossible nature. He there agreed to abolish altogether the system
of amercements (then of recent introduction) and to revert to the
earlier Anglo-Saxon system of bots and wites, already discussed. This
promise, like others, of Henry I. was made only to be broken.[583]

-----

Footnote 583:

Cf. Pollock and Maitland (II. 512), who describe Henry’s promise as “a
return to the old Anglo-Saxon system of pre-appointed wites.” In order
to avoid unnecessary confusion, no mention has been made in the
account given above of a classification of amercements into three
degrees, which increases the obscurity surrounding their origin. The
_Dialogus de Scaccario_, II. xvi., tells how (_a_) for grave crimes,
the culprit’s life and limbs were at the king’s mercy as well as his
property; (_b_) for less important offences, his lands were forfeited,
but his person was safe; while (_c_) for minor faults, his moveable
effects only were at the king’s disposal. In the last case, the
offender was “_in misericordia regis de pecunia sua_.” Thus to be “in
mercy” did not always mean the same thing. Further, a villein or
dependent freeman on a manor might fall in the “mercy” of his lord, as
well as of the king. The records of manorial courts are full of petty
amercements for petty transgressions of the customs of the manor.

II. _Magna Carta and Amercements._ All classes had an interest in this
subject, since no one could expect to pass through life (perhaps hardly
through a single year) without being subjected to one or more
amercements. Three chapters of Magna Carta accordingly are occupied with
remedies. Chapter 20 seeks to protect the ordinary layman; chapter 21,
the barons; and chapter 22, the clergy—thus vaguely anticipating the
conception of three estates of the realm;—commons, nobles and clergy.
The “third estate” is further analysed for the purposes at least of this
clause, into three subdivisions—the freeman, the villein, and the
merchant.[584]

-----

Footnote 584:

Even Coke (_Second Institute_, p. 27) has to confess that for the
purposes of this chapter at least he must abandon the attempt made
elsewhere (_Ibid._, p. 4, and p. 45) to bring the villeins into the
class of freemen. Under the plea that the villein was relatively free
as against third parties except his lord, he claimed for him all the
benefits secured by anticipation in chapter 1 of the Charter, and he
made a special application of the same doctrine in connection with the
right to _judicium parium_ secured to all freemen by chapter 39
(_q.v._). Here, however, he is forced to admit the distinction between
freeman and villein, the former term being, for the purpose of
amercements, virtually identified with “freeholder.”

-----

(1) _The amercement of the freeholder._ The great object of the reforms
here promised was to eliminate the arbitrary element; the Crown must
conform to its own customary rules. With this object, various safeguards
were devised to regulate the amercing of freemen. (_a_) For a petty
offence, only a petty sum could be taken. This was nothing new: the
records of John’s reign show that, both before and after 1215, very
small amounts were often taken: three-pence was a common sum. (_b_) For
grave offences, a larger sum might be assessed, but not out of
proportion to the offence. (_c_) In no case must the offender be pushed
absolutely to the wall. His means of livelihood must be saved to him.
Even if all other effects of the defaulting freeman had to be sold off
to pay the amount assessed, he was to retain his ancestral freehold (or
“contenement,” a word to be afterwards discussed). He might, however,
find himself liable for a large sum which he had to pay off by
instalments during many years. (_d_) Another clause provided machinery
for giving effect to all these rules. The amount of the amercement must
be fixed, not arbitrarily by the Crown, but by impartial assessors, “by
the oath of honest men of the neighbourhood.”

It seems probable that all these provisions were declaratory of existing
usage, that is of the usage of John’s reign; but, apparently, a
different procedure and one less favourable to wrong-doers had been in
vogue, so recently as the reign of Henry II. Amercements had then been
assessed, not by local jurors but, by the barons of the exchequer, who
might, however, where arrears were still due, revise their own findings
of previous years.[585]

-----

Footnote 585:

See note by editors of _Dialogus de Scaccario_, p. 207.

-----

The Pipe Roll of the fourteenth year of Henry II.[586] shows how a
certain priest, who in this respect stood on precisely the same footing
as a layman, had been placed “_in misericordiam_” of 100 marks by
William fitz John, one of the king’s justices, but how that sum was
afterwards reduced to 40 marks “_per sacramentum vicinorum suorum_.” It
seems a safe inference that, on the priest pleading poverty, the
question of his ability to pay was referred to local recognitors with
the result stated. This priest was subsequently pardoned altogether
“because of his poverty.” His case illustrates how an important change
was gradually effected. Local jurors first assisted, and then
superseded, the barons of exchequer in assessing the amounts payable as
amercements. This important boon, which transferred the decision from
unsympathetic Crown officials to the defaulter’s own neighbours, was
confirmed by Magna Carta to all clergy and to all members of the third
estate. It will be shown, in connection with chapter 21, how earls and
barons lost a similar privilege.[587]

-----

Footnote 586:

Madox, I. 527.

Footnote 587:

Reeves, _History of English Law_, I. 248 (Third Edition) says “Upon
this chapter was afterwards framed the writ _de moderata
misericordia_, for giving remedy to a party who was excessively
amerced.”

-----

(2) _The amercement of the merchant._ The provisions in favour of
freeholders were extended to members of the trading classes. One
modification, however, had to be made. In the normal case, the
merchant’s means of livelihood were his wares, not his freehold. These
wares, accordingly, were saved to him, not his “contenement” (if he had
one). The traders of many favoured towns, however, had already gained
special privileges in this as in other matters, and these had received a
general confirmation from chapter 13 of the Great Charter. Some boroughs
had anticipated Magna Carta by obtaining in their own special charters
either a definition of the maximum amercement exigible, or in some
cases, by a definition of the amercing body. Thus, John’s Charter to
Dunwich of 29th June, 1200,[588] provides that the burgesses shall only
be amerced by six men from within the borough, and six men from without.
The capital had special privileges: in his Charter to the Londoners,
Henry I. had promised that no citizen _in misericordia pecuniae_ should
pay a higher sum than 100s. (the amount of his _wer_).[589] This was
confirmed in the Charter of Henry II., who declared “that none shall be
adjudged for amercements of money, but according to the law of the city,
which they had in the time of King Henry, my grandfather.”[590] John’s
Charter to London of 17th June, 1199, also specially referred to
this;[591] and the general confirmation of customs contained in chapter
13 of Magna Carta would further strengthen it. In all probability, it
covered trivial offences only (such as placed the offender in the king’s
hands _de misericordia pecuniae_). The present chapter is wider in its
scope, applying to great offences as well as to small ones, and
embracing merchants everywhere, not merely the burgesses of chartered
towns.

-----

Footnote 588:

_Rotuli Chartarum_, 51.

Footnote 589:

See _Select Charters_, 108.

Footnote 590:

See Birch, _Historical Charters of London_, p. 5.

Footnote 591:

_Ibid._, p. 11.

-----

(3) _The amercement of the villein._ The early history of villeins as a
class is enveloped in the mists which still surround the debateable
question of the rise of the English manor. Notwithstanding the brilliant
efforts of Mr. Frederic Seebohm[592] to find the origin of villeinage in
the status of the serfs who worked for Roman masters upon British farms
or _villae_ long before the Teutonic immigrations began, an older theory
still holds the field, namely, that the abject villeins of Norman days
were the descendants of the free-born “ceorls” of Anglo-Saxon times. On
this theory—the orthodox one, and rightly so, since it is supported by
the greater weight of evidence—most of England was once cultivated by
free Anglo-Saxon peasant proprietors originally grouped in little
societies each of which formed an isolated village. These free villagers
were known as “ceorls,” to distinguish them from the gentry or nobility
called “eorls,” who enjoyed social consideration but (so it is usually
argued) no unfair political advantages on the score of their noble
blood. The “ceorls” were slowly sinking from their originally free
estate during several centuries prior to 1066: but the process of their
degradation was completed rapidly and roughly by the harsh measures of
the Norman conquerors. The bulk of the once free peasantry were crushed
down into the dependent villeins of the eleventh and twelfth centuries.

-----

Footnote 592:

See _English Village Community_, _passim_.

-----

Whichever theory may be the correct one, the position, economic, legal,
and political, of the villeins in the thirteenth century has at the
present day been ascertained with accuracy and certainty. Economically
they were reckoned part of the necessary equipment of the manor of their
lord, whose fields they had to cultivate as a condition of being left in
possession of acres which had once been, in a more real sense, their
own. The services to be exacted by the owner of the manor, at first
vague and undefined, were gradually specified and limited. They varied
from century to century, from district to district, and even from manor
to manor; but at best the life of the villein was, as a contemporary
writer has described it, burdensome and wretched (_graviter et
miserabiliter_). After his manifold obligations were discharged, little
time was left him for the ploughing and reaping of his own small
holding. The normal villein possessed his portion of land, of a virgate
or half virgate in extent (thirty or fifteen scattered acres) under a
tenure known as _villenagium_, sharply distinguished from the
freeholder’s tenures, whether of chivalry, serjeanty, or socage. He was
a dependent dweller on a manor which he dared not quit without his
master’s leave. It is true that he had certain rights of a proprietary
nature in the acres he claimed as his own; yet these were determined,
not by the common law of England, but by “the custom of the manor,” or
virtually at the will of the lord. These rights, such as they were,
could not be pled elsewhere than before the court customary of that
manor over which the lord’s steward presided with powers wide and
undefined. Legally speaking, the villein was a tenant-at-will whom the
lord could eject without the interference of any higher tribunal than
his own. Politically, however, the position of the villein was peculiar.
While allowed to enjoy none of the privileges, he was yet expected to
perform some of the duties, of the freeman. He attended at the shire and
hundred courts, acted on juries, and performed other public functions,
thus suffering still further encroachments on the scanty portion of time
which he might call his own, but preserving for a brighter day some
vague tradition of his earlier liberty. The fact that such public duties
were performed by the villein, lends strong support to those who argue
in favour of his descent from the old “ceorl” who enjoyed all the
rights, as well as performed all the obligations, of the free. Such
duties would never have been required from a race of hereditary slaves;
but it is easy to understand how men originally free might be gradually
robbed of their legal rights, while left to perform legal duties of a
kind so useful to society and to their masters.

The words of this chapter of Magna Carta undoubtedly extend some measure
of protection to villeins. Two questions, however, may be asked:—What
measure, and from what motive? Answers are called for, because of the
importance attached to this clause by writers who claim for Magna Carta
a popular or democratic basis. One thing is clear: the villeins were
protected from the abuse of only such amercements as John himself might
inflict, not from the amercements of their manorial lords; for the words
used are “_si inciderint in misericordiam nostram_.” A villein in the
king’s mercy shall enjoy the same consideration as the freeholder or the
merchant enjoys in similar plight—his “wainage,” that is his plough with
its accoutrements, including possibly the oxen, being saved to him. What
is the motive of these restrictions? It is usually supposed to have been
clemency, the humane desire not to reduce the poor wretch to absolute
beggary. It is possible, however, to imagine an entirely different
motive; the villein was the property of his lord, and the king must
respect the vested interests of others. That he might do what he pleased
with his own property, his demesne villeins, seems clear from a passage
usually neglected by commentators, namely, chapter 16 of the reissue of
1217. Four important words limiting the restraints on the king’s power
are there introduced—_villanus alterius quam noster_. The king was not
to inflict absolutely crushing amercements on any villeins “_other than
his own_,” thus leaving the villeins on ancient demesne unreservedly in
his power.[593]

-----

Footnote 593:

Thomson, _Magna Charta_, p. 202, seems completely to have
misunderstood this 16th chapter of the reissue of 1217, construing the
four interpolated words in a sense the Latin will not bear, viz.:—“A
villein, _although he belonged to another_.” The view here taken of
the motive for protecting villeins is strengthened by the use of the
peculiar phrase, “_vastum hominum_” in chapter 4 (_q.v._).

-----

It must not be thought, however, that the position of the king’s
villeins—“tenants on ancient demesne,” as they were technically
called—was worse than that of the villeins of an ordinary unroyal manor.
On the contrary, it has been clearly shown[594] that the king’s peasants
enjoyed privileges denied to the peasants of other lords. Magna
Carta—that "bulwark of the people’s rights"—thus left the great bulk of
the rural population of England completely unprotected from the tyranny
of their lords in amercements as in other things. The king must not take
so much from any lord’s villeins as to destroy their usefulness as
manorial chattels; that was all.[595]

-----

Footnote 594:

Notably by Professor Vinogradoff in his _Villeinage in England_,
_passim_.

Footnote 595:

The wide gulf which separated the villein from the freeman in this
matter of amercements is shown by an entry on the _Pipe Roll_ of 16
Henry II. (cited Madox, I. 545) _Herbertus Faber debet j marcam pro
falso clamore quem fecit ut liber cum sit rusticus._ A villein might
be heavily amerced for merely claiming to be free. It is peculiarly
difficult to reconcile any theory of the villein’s freedom with the
doctrine of Glanvill, V. c. 5, who denies to everyone who had been
once a villein the right to “wage his law,” even after emancipation,
where any third party’s interests might thereby be prejudiced.

-----

(4) _The difference between fines and amercements._ In the thirteenth
century these terms were sharply contrasted. “Amercement” was applied to
such sums only as were imposed in punishment of misdeeds, the
law-breaker amending his fault in this way. He had no option of
refusing, and no voice in fixing the amount assessed upon him. “Fine,”
on the contrary, was used for voluntary offerings made to the king with
the object of procuring some concession in return—to obtain some favour
or to escape some punishment previously decreed. Here the initiative
rested with the individual, who suggested the amount to be paid, and
was, indeed, under no legal obligation to make any offer at all. This
distinction between fines and amercements, absolute as it was in theory,
could readily be obliterated in practice. The spirit of the restriction
placed by this chapter and by the common law upon the king’s prerogative
of inflicting amercements could usually be evaded by calling the sums
exacted “fines.” For example, the Crown might imprison its victims for
an indefinite period, and then graciously allow them to offer large
payments to escape death by fever or starvation in a noisome gaol. The
letter of Magna Carta was in this way strictly observed, since the
prisoner was nominally as free to abstain entirely from offering as was
the king to reject all offers until the figure was sufficient to tempt
his greed. Enormous _fines_ might thus be taken; while royal officials
were strictly forbidden to inflict arbitrary _amercements_.

With the gradual elimination of the voluntary element the word “fine”
came to bear its modern meaning, while “amercement” dropped out of
ordinary use.[596]

-----

Footnote 596:

Cf. _infra_, c. 55, which supplements this chapter, providing for the
cancellation of all amercements unjustly inflicted in the past,
whereas this chapter seeks to prevent the infliction of new ones in
the future.

-----

(5) _Contenement._ This word, which occurs in Glanvill[597] and in
Bracton,[598] and also (in its French form) in the Statute of
Westminster, I.,[599] as well as in Magna Carta, has formed a text for
many laboured and unsatisfactory explanations from the days of Sir
Edward Coke[600] to our own.

-----

Footnote 597:

IX. 8.

Footnote 598:

III. folio 116 b.

Footnote 599:

3 Edward I. c. 6.

Footnote 600:

_Second Institute_, p. 27.

-----

There seems to be no real obscurity, however, since it is clearly a
compound of "tenement"—a word well known as an exact technical term of
feudal conveyancing—and the prefix “con.” A “tenement” is precisely what
a freeman might be expected to have, namely, a freehold estate of his
own. The “con” merely intensifies the meaning, emphasizing the closeness
of the connection between the freeman and his land. Any other tenements
he had might be taken away, without inflicting extreme hardship; but to
take from him his "contenement"—his ancestral lands—would leave him poor
indeed.

The word occurs, not only in Glanvill and Bracton, but also in several
entries on the Exchequer Rolls of Henry III. and Edward I., collected by
Madox,[601] and by him collated with other entries which throw light on
the way in which a “contenement” might be saved to the man amerced. Thus
in 40 Henry III. the officials of the exchequer, after discussing the
case of an offender who had failed to pay an amercement of 40 marks,
ordered inquiry to be made, “how much he was able to pay the king _per
annum_, saving his own sustenance and that of his wife and children,” an
excerpt which illustrates also the more humane side of exchequer
procedure. In 14 Edward I. again, the officials of that day, when
ferreting out arrears, found that certain poor men of the village of
Doddington had not paid their amercements in full. An inquiry was set on
foot, and the barons of exchequer were ordered to fix the dates at which
the various debtors should discharge their debts (evidently an
arrangement for payment by instalments) “_salvo contenemento suo_.”[602]

-----

Footnote 601:

See II. 208-9.

Footnote 602:

See Madox, _Ibid._

-----

These illustrations of the actual procedure of later reigns, in agreeing
so closely with the rules laid down by the Great Charter, show how a
man’s contenement might be saved to him without any loss to the Crown.
Magna Carta apparently desires that time should be granted in which to
pay up debts by degrees. Meanwhile, the amerced man was not forced to
sell such holding (or wares, or wainage) as was necessary to maintain
him with his wife and family. Leniency, in the long run, might prove
best for all concerned, the Crown included.

CHAPTER TWENTY-ONE.

Comites et barones non amercientur nisi per pares suos, et non nisi
secundum modum delicti.

Earls and barons shall not be amerced except through their peers, and
only in accordance with the degree of the offence.

_The amercement of earls and barons._ The _barones majores_, as matter
of course, intended to secure for themselves privileges at least equal
with those of the ordinary freeholder. In assessing their amercements,
both the gravity of the offence and their ability to pay (as measured by
their property) would naturally be considered. Magna Carta mentions only
the former criterion—it was, indeed, unnecessary to call the king’s
attention to the fact that more could be taken from their wealth than
from the ordinary freeholder’s comparative poverty. The saving of a
“contenement” to them would also naturally be assumed. One vital
difference, however, was distinctly stated. The amercing body was not to
be a jury of good men of the locality; but a jury of their “peers.”[603]
The barons here asked only what was their undoubted right—to have the
amount of their forfeits determined neither by their feudal inferiors
(freeholders of their own or of other mesne lords) nor yet by Crown
officials, but by magnates of their own position and with interests in
common. This was not an innovation. Mr. Pike[604] has shown how, in
Richard’s reign, barons were not amerced with the common herd: at an
eyre held at Hertford in 1198-9, a list of those amerced was drawn up
and definite sums were entered after each name, with two exceptions,
Gerald de Furnivall and Reginald de Argenton, each of whom was reserved
for special treatment “as a baron.” A local jury had evidently on the
spot assessed the amercements of villeins and ordinary freeholders (in
exact accordance with the rules of chapter 20); but the following entry
was made opposite each of the two barons’ names “to be amerced _at the
Exchequer_ for a disseisin.” The Pipe Roll of John’s first year shows
that this was subsequently done.[605]

-----

Footnote 603:

Cf. _infra_, under c. 39.

Footnote 604:

_House of Lords_, 255.

Footnote 605:

Cited by Pike, _Ibid._

-----

Magna Carta, then, had good precedents for insisting that barons ought
not to be amerced by the justices of eyre in the course of their
circuits; but what exactly did it mean by demanding amercement "by their
peers"? Did this merely mean that a few peers, a few Crown tenants,
should be present at the exchequer when they were amerced; or was it a
demand for the assembling, for that purpose, of a full _commune
concilium_ like that defined in chapter 14?

The Crown, in the following reign, placed its own interpretation on
these words, and succeeded in turning into a special disadvantage what
the barons had insisted on as a privilege. Bracton[606] repeats this
chapter verbatim, but adds what seems to be an official gloss,
qualifying it by these words: “_et hoc per barones de scaccario vel
coram ipso rege_.” Barons, under this interpretation of Magna Carta, had
their amercements assessed neither by the whole body of “their peers” in
a full council, nor yet by a select jury of those peers empannelled in
the exchequer for that purpose, but by royal officials, the barons of
exchequer, or the justices of King’s Bench. Thus the words of the
Charter were perverted by the ingenuity of the Crown lawyers to
authorize precisely what they had been originally intended to
forbid.[607]

-----

Footnote 606:

III., folio 116 b.

Footnote 607:

Pike, _House of Lords_, 256–7, shows how barons were assessed
sometimes—(_a_) before the barons of exchequer; or (_b_) before the
full King’s Council; or (_c_) at a later date, even before the
justices of Common Pleas. They were never assessed, however, before
the justices on circuit. Is it possible that one reason why the name
_Barones Scaccarii_ was retained as the official title of the four
justices who presided over the Court of Exchequer was the Crown’s wish
to preserve the fiction that these official “_barones_” were really
peers of the holders of "baronies"?

-----

In the fourteenth century several cases are recorded, in the course of
which defaulters, in the hope of escaping with smaller payments,
protested against being reckoned as barons. For example, a certain
Thomas de Furnivall in the nineteenth year of Edward II. complained that
he had been amerced as a baron “to his great damage, and against the law
and custom of the realm,” whereas he really held nothing by barony. The
king directed the Treasurer and Barons of the Exchequer “that if it
appeared to them that Thomas was not a baron, nor did hold his land by
barony, then they should discharge him of the said imposed amercement;
provided that Thomas should be amerced according to the tenor of the
great Charter of Liberties,”[608] that is to say, as a simple freeholder
according to the provisions of chapter 20. It is clear that Thomas de
Furnivall was confident that a local jury would amerce him at a lower
figure than that fixed by the exchequer barons. A few years earlier the
Abbot of Croyland had made a similar plea, but without success.[609]

-----

Footnote 608:

Madox, I. 535-8.

Footnote 609:

See Madox, _Ibid._, and also Pike, _House of Lords_, 257.

-----

At a later date barons and earls were successful in securing by another
expedient some measure of immunity from excessive exactions. They had
established, prior to the first year of Henry VI., a recognized scale of
amercements with which the Crown was expected, in ordinary
circumstances, to content itself.[610] In the reign of Edward IV. a duke
was normally amerced at £10, and an earl or a bishop at 100s.[611]

-----

Footnote 610:

See Pike, _Ibid._

Footnote 611:

Madox, _Baronia Anglica_, 106, seems to view these sums as fixing a
minimum, not a maximum. “If a baron was to be amerced for a small
trespass, his amercement was wont to be 100s. at the least; he might
be amerced at more, not at less. This, I think, was the meaning of the
term _amerciater ut baro_.” He adds that a commoner for a similar
trespass would get off with 10s., 20s., or 40s.

-----

CHAPTER TWENTY-TWO.

Nullus clericus amercietur de laico tenemento suo, nisi secundum modum
aliorum predictorum, et non secundum quantitatem beneficii sui
ecclesiastici.

A clerk shall not be amerced in respect of his lay holding except
after the manner of the others aforesaid; further, he shall not be
amerced in accordance with the extent of his church benefice.

_Amercement of the clergy._ The churchman was to receive the same
favourable treatment as the layman in all respects, and to enjoy one
additional privilege. In proportioning the amercement to the extent of
his wealth, no account was to be taken of the value of his “church
benefice.” A sharp distinction is here drawn between _laicum tenementum_
(or, as the 10th of the Articles of the Barons expressed it, _laicum
feodum_) and _beneficium ecclesiasticum_. This antithesis between “lay
fee” and "alms"—that is, between lands held by barony, knight’s service,
or any other secular tenure on the one hand, and lands held by
frankalmoin on the other—was a familiar one in the Middle Ages.[612]

-----

Footnote 612:

See _supra_ 66-70 and cf. Constitutions of Clarendon (c. 9), which
distinguish _tenementum pertinens ad eleemosinam_ from _ad laicum
feudum_.

-----

Only the former was to be reckoned in fixing the defaulting clerk’s
amercement. This would leave the bishop or abbot exposed to a higher
payment proportionate to his barony, while exempting the parish priest
from any assessment on account of his rectory and glebe. It would almost
seem that in the normal case the incumbent with no wealth but the
produce and rents of his benefice would thus escape from amercement
altogether; yet, if he had no lay tenement, he might still have
chattels, or might at least pay instalments from the annual increase of
his crops. This exemption in favour of those who held lands in “alms”
may have proceeded from several possible motives. Frankalmoin enjoyed
many privileges, including, in the reign of Henry II., complete immunity
from the jurisdiction of all secular courts.[613] Perhaps the Exchequer
did not dare to levy contributions upon such lands. In any view, it
would have been manifestly unjust to treat the clerical incumbent as
though he were the owner in fee simple of the church’s patrimony.

-----

Footnote 613:

See Constitutions of Clarendon, _Ibid._ The Crown soon withdrew this
immunity.

-----

The word “clerk” was a wide one, including not only the ordinary parish
priests (whether rectors or vicars) with the deacons and those who had
taken minor orders, but also the monks and canons regular (whose vows of
poverty, however, left no loophole for the legal retention by them of
private property which could require protection). It included also the
higher clergy, great prelates, bishops and abbots, whose status was,
however, complicated by their ownership of Crown lands. Their character
of “baron” was often more prominent in constitutional questions than
that of “clerk in holy orders.” Their treatment in the matter of
amercements is a case in point.[614] There could have been no doubt from
the first that a bishop “in mercy” must submit to have his barony taken
into consideration in fixing his amercement. It would almost seem that
the great prelates were not intended to benefit in any way from this
exemption. Such is the suggestion conveyed by a slight alteration
effected in the Charter of 1217, which substitutes for the wider
“_clericus_” of the text the more restricted expression "_ecclesiastica
persona_"—words which in the thirteenth century denoted the parish
clergy, and were used much as is the word “parson” in colloquial speech
at the present day.

-----

Footnote 614:

Cf. Pike, _House of Lords_, 254.

-----

A certain looseness in the arrangement of the Latin words of this
chapter, as it originally stood in 1215, seems to have suggested the
need for improvement. Alterations, apparently of a verbal nature, were
made with some evidences of care in Henry’s reissues. The “_de laico
tenemento_” of 1215 was omitted altogether in 1216; but a reference to
the “lay fees” of the clergy was reintroduced in 1217, subject to a
complete reconstruction of the sentence to make it read smoothly, and so
avoid the possibility of misconception.[615]

-----

Footnote 615:

In its final form it reads: “_Nulla ecclesiastica persona amercietur
secundum quantitatem beneficii sui ecclesiastici, sed secundum
tenementum suum et secundum quantitatem delicti._” Dr. Stubbs, _Sel.
Charters_ 345, by a curious oversight, reads for “_tenementum_” the
compound “_contenementum_,” for which there seems to be no authority.

-----

CHAPTER TWENTY-THREE.

Nec villa nec homo distringatur facere pontes ad riparias, nisi qui ab
antiquo et de jure facere debent.

No community or individual[616] shall be compelled to make bridges at
river banks, except those who from of old were legally bound to do so.

The object of this chapter is obvious; to compel the king to desist
from his practice of illegally increasing the extent of an
obligation—admitted as perfectly legal within the limits defined by
ancient usage—the obligation to keep in good repair all existing
bridges over rivers. John might continue to exact what his ancestors
had exacted; but nothing more. So much lies on the surface of the
Charter, which explains, however, neither the origin of the obligation
nor the reasons which made John keen to enforce it.

I. _Origin of the Obligation to make Bridges._ The Norman kings seem to
have based their claim to compel their subjects to maintain such bridges
as were necessary, upon an ancient threefold obligation,[616] (known as
the _trinoda necessitas_) incumbent on all freemen during the
Anglo-Saxon period. Three duties were[617] required of all the men of
England in the interests of the commonweal: attendance on the fyrd or
local militia; the making of roads, so necessary for military purposes;
and the repairing of bridges and fortifications. Gradually, as feudal
tendencies prevailed, the obligation to construct bridges ceased to be a
personal burden upon all freemen, and became a territorial burden
attached to certain manors or freeholders. In other words, it was made a
part of the services incidental to the feudal tenure of particular
estates. The present chapter, in forbidding the illegal extension of
this burden to communities or individuals other than those who rendered
it as part of the services due for their lands, seems to be only a
particular application of the general principle enunciated in chapter
16. The evil complained of, however, required special treatment because
of the prominence into which it had been forced by John, who had abused
powers vested in his ancestors for national purposes, in order to
further his own selfish pleasures, in a manner so well known to his
contemporaries as not to require specification in Magna Carta.

-----

Footnote 616:

The word “_villa_,” used at first as synonymous with “manor,” came to
be freely applied not only to all villages, but also to chartered
towns. Even London was described as a _villa_ in formal writs.
“_Homo_,” though often loosely used, was the word naturally applied to
a feudal tenant. The version given by Coke (_Second Institute_, p. 30)
reads “_liber homo_,” which is also the reading of one MS. of the
_Inspeximus_ of 1297 (25 Edward I.). See _Statutes of the Realm_, I.
114.

Footnote 617:

See _Rot. Claus._, 19 Henry III., cited by Moore, _History and Law of
Fisheries_, p. 8.

-----

II. _The King’s interest in the Repair of Bridges._ John’s motives for
making an oppressive use of this prerogative must be sought in a
somewhat unexpected quarter, in the king’s rights of falconry, and in
his frequent need for ready means of crossing rivers in pursuit of his
valuable birds of prey. Whenever John proposed to ride a-fowling, with
his hawk upon his wrist, he issued letters compelling the whole
country-side to bestir themselves in the repair of bridges in every
district which his capricious pleasure might lead him to visit. Several
such writs of the reign of Henry III. are still extant. The exact words
of these vary somewhat, but a comparison of their terms leaves no room
for doubt either as to the nature of the commands they conveyed or the
reasons for issuing them. Addressed to the sheriffs of such counties as
the king was likely to visit, at a convenient interval beforehand, these
letters gave instructions that all necessary steps should be taken in
preparation for the king’s hawking. The writs contained two commands, an
order for the repair of bridges, and a prohibition against the taking of
birds before the king had enjoyed his sport. Both points are well
brought out in a Letter Close of Henry III., dated 26th December, 1234,
which directed "all bridges on the rivers Avon, Test, and Itchen to be
repaired as was wont in the time of King John, so that when the lord
King may come to these parts, free transit shall lie open to him for
“riviating” (_ad riviandum_) upon the said rivers." The writ then
proceeded to command the sheriff to issue a general prohibition against
any one attempting “to riviate” along the river banks, previous to the
coming of the king (“_ne aliquis riviare praesumat per riparias illas
antequam rex illic venerit_”).[618]

-----

Footnote 618:

See _Rot. Claus._ 19 Henry III., cited in Moore, _History and Law of
Fisheries_, p. 8.

-----

The Latin verb, for which “to riviate” has been coined as an English
equivalent, has long been the subject of misconception; but conclusive
evidence has recently been adduced to prove that it referred to the
medieval sport of fowling, that is to the taking of wild birds in sport
by means of hawks and falcons.[619]

-----

Footnote 619:

See Moore, _Ibid._, 8–16. Two links in the chain of evidence are
worthy of emphasis:—(_a_) Writs of 13th November and 1st December,
1234, order repair of bridges for the transit of the king “along with
his birds” (_cum avibus suis_). (_b_) A writ of 28th October, 1283,
gives _aves capere_ as the equivalent of _riviare_. This writ contains
a licence to the Earl of Hereford “during the present winter season to
_riviate_ and to take river-fowl of this nature (_riviare et aves
ripariarum hujusmodi capere_) throughout the rivers Lowe and Frome
which are in defence (_in defenso_).”

-----

These writs prove that the Crown claimed and exercised a monopoly of, or
at least a preferential right to, this form of sport along the banks of
certain rivers; and these “preserved” rivers were accordingly said to be
placed “in defence” (_in defenso_), a phrase which occurs in many of the
writs referred to, as well as in a later chapter of Magna Carta.[620]

-----

Footnote 620:

_I.e._ c. 47 (_q.v._). Any district or object over which the king or a
private individual had sole rights of any kind to the exclusion of the
public might apparently be said to be placed _in defenso_ in regard to
the object of such rights. In this case, the word “riviation” makes
the object plain.

Two distinct hardships were thus imposed on the nation by the king’s
exercise of his rights of falconry, one negative and the other positive.
In the interval between the king’s intimation and his arrival at the
indicated rivers, the sport of all other people was interfered with,
while the obligation to reconstruct otherwise useless bridges was a more
material burden on every village and individual exposed to it. A wise
king would be careful to use such rights so as to inflict on his
subjects a minimum of hardship. John, however, knew no moderation,
placing “in defence” not merely a few banks at a time, but many rivers
indiscriminately, including those which had never been so treated in his
father’s day, and demanding that all bridges everywhere should be
repaired, with the object, not so much of indulging a genuine love of
sport, as of inflicting heavy amercements on those who neglected prompt
obedience to his commands. Great consternation was aroused by John’s
action at Bristol in 1209 when he prohibited the taking of birds
throughout the entire realm of England.[621]

-----

Footnote 621:

R. Wendover, II. 49 (R.S.), “_Ibi capturam avium per totam Angliam
interdixit._”

-----

Both of these grievances, thus augmented by the policy of King John,
were redressed by Magna Carta, though in different clauses. In the
present chapter John promised not to impose the burden of repairing
bridges on those from whom it was not legally due.[622] Chapter 47, in
which he agreed to withdraw his interdict from all rivers which he had
placed “in defence” during his own reign, and also to disafforest all
forests of his own creation, was entirely omitted in the Charter of
1216;[623] but in 1217 it reappeared in a new position and expressed in
different words. The provision of the original chapter 47, relating to
forests, was relegated to the _Carta de Foresta_, then granted for the
first time, and the other part of that chapter, relating to falconry,
was naturally enough joined to a clause which redressed another
grievance growing from the same root. Chapter 19 of Henry III.’s
Charter, in its final form, repeats word for word the terms of the
present chapter of John, while in chapter 20 Henry proceeds to declare
“that no river shall in future be placed in defence except such as were
in defence in the time of King Henry, our grandfather, throughout the
same places and during the same periods as they were wont in his day.”

-----

Footnote 622:

Article 11 of the Barons had demanded that no _villa_ should be
_amerced_ for failure to make such illegal repairs, thus illustrating
at once John’s policy, and the point of connection between this
provision and the immediately preceding chapters which dealt with
amercements.

Footnote 623:

It was, however, included among the subjects reserved for further
consideration in “the respiting clause” (c. 42 of 1216) under the
words “_de ripariis et earum custodibus_.” Cf. _supra_, 169.

-----

This express prohibition seems to have prevented the Crown from
extending its prerogatives any further in this direction. Yet Henry III.
had ample opportunities of harassing his subjects by an inconsiderate
use of the rights still left to him. By issuing wholesale orders
affecting every preserved river which he had an admitted right to put
“in defence,” he might inflict widespread and wanton hardships. In many
cases dubiety existed on the question of fact as to what banks had
actually been “defended” by Henry II., and a vague general command which
named no special rivers left in cruel uncertainty the district to be
visited. Henry III., accordingly, either yielding to pressure or in
return for grants of money, made important concessions. After the year
1241, he invariably specified the particular river along whose banks he
intended to sport, and sometimes even announced the exact date at which
he expected to arrive. As no writs appear subsequent to 1247, it is
possible that he was induced to abstain altogether from the exercise of
a right which inflicted hardships on the people out of all proportion to
the benefits conferred on the king.[624]

-----

Footnote 624:

Moore, _Ibid._, 9.

-----

The Crown, however, had not renounced its prerogatives, and several
writs still exist to show that Edward I. occasionally allowed his great
nobles to share in the royal sport. Licences to this effect were granted
in 1283 to the Earl of Hereford and to Reginald fitz Peter, and in the
following year to the Earl of Lincoln. On 6th October, 1373, Edward III.
by his writ commanded the sheriff of Oxfordshire to declare that all
bridges should be repaired and all fords marked out with stakes for the
crossing of the king “with his falcons” during the approaching winter
season.[625]

-----

Footnote 625:

Moore, _Ibid._, 12.

-----

III. _Erroneous Interpretations._ There is nothing astonishing in the
fact that a pastime so passionately followed as falconry was in the
Middle Ages, should have left its traces on two chapters of Magna Carta,
the full import of which has not hitherto been appreciated by
commentators, partly from failure to bring both of them together, but
chiefly because of the too precipitate assumption that the words _ad
riviandum_ and _in defenso_, occurring in writs and charters, referred
to _fishing_ rather than to fowling.[626]

-----

Footnote 626:

The _Mirror of Justices_ is cited as first suggesting this. See Moore,
_Ibid._, 12–16, where the gradual development of the error is traced.
Coke, _Second Institute_, 30, was misled by the _Mirror_, and he has
in turn misled others.

-----

It has been confidently inferred that the framers of Magna Carta when
forbidding additional banks to be put “in defence,” equally as when
demanding the removal of “weirs” from non-tidal waters,[627] were
influenced by a desire to preserve public rights of fishing against
encroachment by the king or by private owners. In either case the
motives were entirely different. In the Middle Ages, fishing was a means
of procuring food, not a form of sport: to depict John and his
action-loving courtiers as exponents of the gentle art of Isaac Walton
is a ridiculous anachronism.

-----

Footnote 627:

Cf. _infra_, under c. 33.

-----

It is quite true that the value of fish as an article of diet led in
time to legislation directed primarily to their protection; but
apparently no statute with such a motive was passed previous to
1285.[628] It is further true that in the reign of Edward I. it became
usual to describe rivers, over which exclusive rights of fishing had
been established by riparian owners, as being _in defenso_;[629] but
rivers might be “preserved” for more purposes than one. From Edward’s
reign onwards, however, rights of fishing steadily became more valuable,
while falconry was superseded by other pastimes. Accordingly a new
meaning was sought for provisions of Magna Carta whose original motive
had been forgotten. So early as the year 1283 the words of a petition to
the king in Parliament show that “fishing” had been substituted for
“hawking” in interpreting the prohibition referred to in chapter 47 of
John’s Charter. In that year the men of York complained that Earl
Richard had interfered with their rights of fishing by placing _in
defenso_ the rivers Ouse and Yore, a proceeding they declared to be
“against the tenor of Magna Carta.”[630] This error, the first
appearance of which thus dates from 1283, has been accepted for upwards
of five hundred years by all commentators on Magna Carta. The credit for
dispelling it is due to Mr. Stuart A. Moore and Mr. H. S. Moore in their
_History and Law of Fisheries_, published in 1903.

-----

Footnote 628:

This was 13 Edward I., stat. 1, c. 47, cited Moore, _Ibid._, 173.

Footnote 629:

_Ibid._, p. 6.

Footnote 630:

_Ibid._, p. 16.

-----

CHAPTER TWENTY-FOUR.

Nullus vicecomes, constabularius, coronatores, vel alii ballivi nostri,
teneant placita corone nostre.

No sheriff, constable, coroners, or others of our bailiffs, shall hold
pleas of our Crown.

The main object of this provision is beyond doubt: men accused of crimes
must be tried before the king’s judges and not by local magistrates of
whatsoever kind. The innocent looked confidently for justice to the
representatives of the central government; while they dreaded the
jurisdiction of the less responsible officials resident in the
county—local tyrants whose harshness had earned them a hearty and
widespread hatred. The sheriffs and castellans thoroughly deserved their
bad reputation; for the records of the age overflow with tales of their
cruelties and illegal oppressions. It ought not to be forgotten,
however, that if this chapter contains a condemnation of the local
administration of justice, it testifies, at the same time, to the
comparative purity of the justice dispensed by the king’s own judges. So
far there is no difficulty; but some differences of opinion exist as to
the exact bearing of this provision on certain points of detail.

I. _Pleas of the Crown._ All litigations tended to be distinguished into
two kinds, royal pleas and common pleas, according as the interests of
the Crown were or were not specially involved. This classification has
already been discussed in connection with chapter 17, which sought to
regulate the procedure in common pleas. The present chapter concerns
itself only with “pleas of the Crown,” a phrase which had even in 1215
considerably altered its original meaning. In the eleventh century it
had denoted all royal business, whether specially relating to legal
procedure or not, embracing all matters connected with the king’s
household or his estates, with the collection of his revenue, or the
administration of his justice, civil as well as criminal. Gradually,
however, the usage of the word altered in two respects, contracting in
one direction, while expanding in another. It ceased to be applied to
financial business and even to non-criminal, judicial business; and it
was thereafter reserved for criminal trials held before the king’s
judges. This process of contraction had been nearly completed before the
accession of John.

Another tendency, however, in an opposite direction had been for some
time in progress; the distinction drawn in early reigns between petty
trespasses, which were left in the province of the sheriff, and grave
offences, which alone were worthy of the king’s attention, was being
slowly obliterated.[631] The royal courts steadily extended the sphere
of their activity over all misdeeds, however trivial, until the whole
realm of criminal law fell under the description of “pleas of the
Crown.”

-----

Footnote 631:

Traces of it may be found as late as the reign of Henry II. See
Glanvill, I. c. 1.

-----

In the reign of John this process of expansion was far from complete:
the words then, indeed, embraced grave criminal offences tried in the
king’s courts, but not the numerous petty offences, which were still
disposed of in the sheriffs tourn or elsewhere.[632]

-----

Footnote 632:

The gradual triumph of royal justice over all rivals in the sphere of
criminal law is thus symbolized by the extension of the phrase “pleas
of the Crown,” which can be traced through a series of
documents—_e.g._ (_a_) the laws of Cnut; (_b_) Glanvill, I. cc. I, 2,
and 3; (_c_) the Assizes of Clarendon and Northampton; (_d_) the
ordinance of 1194; and (_e_) the present chapter of Magna Carta.

-----

North of the Tweed the same phrase has had a completely different
history: in modern Scots law its connotation is still a narrow one; and
this is a direct result of the slow growth of the Scottish Crown in
authority and jurisdiction, in notable contrast to the rapidity with
which the English Crown attained the zenith of its power. The kings of
Scotland failed to crush their powerful and unruly vassals, and
consequently the pleas of the Scottish Crown, exclusively reserved for
the High Court of Justiciary, formed a meagre list—the four heinous
crimes of murder, robbery, rape, and arson. The feudal courts of the
Scottish nobles long preserved their wide jurisdiction over all other
offences. When the heritable jurisdictions were at last abolished, in
1748, mainly as a consequence of the rebellion of three years
previously, the old distinction, so deeply rooted in Scots law, still
remained. The sheriff court had no cognizance, until late in the
nineteenth century, over the four crimes specially reserved for the
king’s judges.[633] Thus in Scotland the historic phrase “pleas of the
Crown” is, even at the present day, confined to murder, robbery, rape,
and fire-raising, while to an English lawyer it embraces the entire
realm of criminal law.

-----

Footnote 633:

The _Criminal Procedure_ (_Scotland_) Act, 1887 (50 and 51 Victoria,
c. 35) gave him jurisdiction over three of them.

-----

II. _Keeping and Trying Criminal Pleas._ The machinery for bringing
criminals to justice, as organized by Henry II., was somewhat elaborate.
For our present purpose, it may be sufficient to emphasize two important
stages in the procedure. An interval had always to elapse between the
commission of a grave crime and the formal trial of the criminal, since
it was necessary to wait for the coming of the itinerant justices, which
only took place at intervals of about seven years. Meanwhile,
preliminary steps must be taken to collect and record evidence of
offences, which might otherwise be lost. The magistrate responsible for
these preliminary steps was said to “keep” the pleas (_custodire
placita_)—that is, to watch them or prevent them from passing out of
mind while waiting the coming of the justices who would formally “hold”
or “try” or “determine” the same pleas (_placitare_ or _habere_ or
_tenere placita_).

Before the reign of John, not only had the fundamental distinction
between these two stages of procedure been clearly grasped, but the two
functions had been entrusted to two distinct types of royal officials.
The local magistrates of each district “kept” royal pleas, while only
the justices who represented the central government could “hold” them.
The process of differentiation was accelerated towards the close of the
twelfth century in consequence of the jealousy with which the Crown
regarded the increasing independence of the sheriffs. The elaborate
instructions issued in 1194 to the justices whom Archbishop Hubert
Walter was despatching on a more than usually important visitation of
the counties contain two provisions intended to keep the growing
pretensions of the sheriffs within due bounds.[634]

-----

Footnote 634:

See _Forma procedendi in placitis coronae regis_, cc. 20 and 21, cited
in _Sel. Charters_, 260.

-----

They were expressly forbidden to act as justices within their own
counties, or, indeed, in any counties in which they had acted as
sheriffs at any time since Richard’s coronation.[635]

-----

Footnote 635:

_Ibid._, c. 21.

-----

It is safe to infer that the “trying” of royal pleas was the province
from which in particular the sheriff was thus excluded. Even with regard
to the “keeping” or preliminary stages of such pleas the sheriff was by
no means left in sole command. The justices received instructions[636]
to cause three knights and one clerk to be chosen in each county as
“_custodes placitorum coronae_.” It is possible that these new local
officers, specially entrusted with the duty of “keeping” royal pleas,
were intended rather to co-operate with than to supersede the sheriffs
in this function, but in any view the sheriffs had no longer a monopoly
of authority in their bailiwicks. Magistrates, to be afterwards known as
coroners, were thenceforward associated with them in the administration
of the county.[637]

-----

Footnote 636:

_Ibid._, c. 20.

Footnote 637:

The _Forma procedendi_ of 1194 is usually considered the earliest
distinct reference to the office of coroner. Dr. Gross, however
(_History of Office of Coroner_, 1892, and _Select Cases from
Coroners’ Rolls_, 1896), claims to have found traces of their
existence at a much earlier date. Prof. Maitland remains unconvinced
(_Eng. Hist. Rev._, VIII. 758, and Pollock and Maitland, I. 519).

-----

The ordinance of 1194 seems to have settled subsequent practice in both
respects. Sheriffs, while still free to punish petty offenders on their
own authority, in their half-yearly tourns or circuits, allowed the
coroners to “keep” royal pleas, and the justices to “try” them.

Public opinion of the day strongly approved both rules, yet John
condoned and encouraged irregularities, allowing sheriffs to meddle with
pleas of the Crown, even when the coroners were not present to check
their arbitrary methods;[638] and allowing them to give a final judgment
on such pleas, involving, mayhap, loss of life or limb to those found
guilty, without waiting the arrival of the Justices.[639] Such
deviations from the normal course of procedure could be no longer
tolerated. Magna Carta accordingly, in this first of a series of
chapters directed against the misdeeds of sheriffs and other local
magistrates, forbade them to interfere in this province.

-----

Footnote 638:

This is the inference to be drawn from the 14th of the Articles of the
Barons.

Footnote 639:

This is the inference to be drawn from c. 24 of Magna Carta.

-----

III. _The Intention of Magna Carta._ The barons, in this matter as in so
many others, were merely demanding that the Crown should observe
strictly and impartially the rules which it had laid down for its own
guidance: caprice must give way to law. Sheriffs must not, with or
without the king’s connivance, usurp the functions of coroners; nor must
sheriffs and coroners together usurp those of the king’s justiciars. The
opposition leaders naturally associated these two irregularities
together, and may even have assumed that expressly to abolish the one
implied, with sufficient clearness, an intention to abolish the other
also. Such a supposition would explain a peculiar discrepancy between
the Articles and the Charter, in its final form, which it is otherwise
difficult to account for. While Article 14 demanded redress of one
specific grievance, Magna Carta granted redress of an entirely different
one. The earlier document, neglecting the distinction between “keeping”
and “trying” pleas, simply requires that coroners (whose comparative
popularity is explained by their appointment in the county court) should
always be associated with the sheriff when he meddles in any way with
pleas of the Crown. The Charter is silent on this subject; but forbids
sheriffs and coroners, whether acting separately or together, to “try”
or finally determine pleas of this description. These two provisions are
the complements of each other. Magna Carta would thus seem to be here
incomplete.

The prohibition against sheriffs trying pleas of the Crown was repeated
in all reissues of the Charter; and, although not perhaps strictly
enforced in Henry’s reign, soon became absolute. Under Edward I. it was
interpreted to mean that no one could determine such pleas unless armed
with a royal commission to that effect;[640] and the commission would
take the form either of gaol delivery, of trailbaston, or of oyer and
terminer.[641]

-----

Footnote 640:

See Coke, _Second Institute_, 30, and authorities there cited.

Footnote 641:

For explanation of these terms, see _supra_, c. 18.

-----

IV. _An Erroneous View._ Hallam seems to have misunderstood the object
aimed at by this provision. Commenting on the corresponding chapter of
Henry’s Charter of 1225, he declares that the “criminal jurisdiction of
the Sheriff is entirely taken away by Magna Charta, c. 17.”[642] This is
a complete mistake: both before and after the granting of the Charter,
the sheriff exercised criminal jurisdiction, and that of two distinct
kinds. Along with the coroners, he conducted preliminary enquiries even
into pleas of the Crown; while in his tourn (which was specially
authorized to be held twice a year by chapter 42 of the very Charter
quoted by Hallam) he was completely responsible for every stage of
procedure in regard to trivial offences. He heard indictments and then
tried and punished petty offenders in a summary manner.[643] Several
statutes of later reigns confirmed, even while regulating, the authority
of the sheriff to take indictments at his tourns,[644] until this
jurisdiction was transferred, by an act of the fifteenth century, to the
justices of peace assembled in Quarter Sessions.[645]

-----

Footnote 642:

See _Middle Ages_, II. 482, n.

Footnote 643:

Cf. Stephen, _History of Criminal Law_, I. 83. The mistake made by
Hallam and others may have been in part the result of their neglecting
the important modification undergone by the phrase “pleas of the
Crown” between 1215, when it was still confined to a few specific
crimes of special gravity, and the present day, when it has become
synonymous with the whole field of criminal law.

Footnote 644:

_E.g._ 13 Edward I. c. 13, and 1 Edward III., stat. 2, c. 17.

Footnote 645:

1 Edward IV. c. 2.

-----

All that Magna Carta did was to insist that no sheriff or local
magistrate should encroach on the province reserved for the royal
justices, namely the final “trying” of such grave crimes as had now come
to be recognized as “pleas of the Crown.”[646] The Charter did not even
attempt to define what these were, leaving the boundary between great
and small offences to be settled by use and wont. In all this, it was
simply declaratory of existing practice, making no attempt to draw the
line in a new place.[647]

-----

Footnote 646:

Contrast Coke, _Second Institute_, 32, who seems to suggest that one
effect of Magna Carta was to take from the sheriff a jurisdiction over
_thefts_ previously enjoyed by him.

Footnote 647:

Dr. Stubbs, _Const. Hist._, I. 650, thinks that the proposals of the
Articles and Charter indicated a tendency towards judicial absolutism,
only curbed by the growth of trial by jury. Yet the barons in
providing against the sheriff’s irregularities had certainly no
intention to enhance the royal power. The attitude of the insurgents
in 1215 suggests rather that the sheriffs had now become instruments
of royal absolutism to a greater extent than the king’s justices
themselves. The problem of local government had thus assumed a new
form (cf. _supra_, p. 20). Edward I., indeed, deftly turned this
chapter to his own advantage, arguing that it cancelled all private
jurisdiction over criminal pleas previously claimed by boroughs or
individuals. See Coke, _Second Institute_, 31, and cases there cited.

-----

V. _Local Magistrates under John._ The urgent need of preventing the
petty tyrants who controlled the administration of the various districts
from exercising jurisdiction over the lives and limbs of freemen can be
abundantly illustrated from the details furnished by contemporary
records of the ingenious and cruel oppressions they constantly resorted
to. Ineffectual attempts had indeed been made more than once to restrain
their evil practices, as in August, 1213, when directions were issued
from the Council of St. Alban’s commanding the sheriffs, foresters, and
others, to abstain from unjust dealing,[648] and, again, some two months
later, when John, at the instance of Nicholas of Tusculum, the papal
legate, promised to restrain their violence and illegal exactions.[649]
Little or nothing, however, was effected in the way of reform; and Magna
Carta, in addition to condemning certain specified evils, contained two
general provisions, namely, chapter 45, which indicated what type of men
should be appointed as Crown officials, and the present chapter, which
forbade local magistrates to encroach on the province of the king’s
justices. These local magistrates are comprehensively described under
four different names.[650]

-----

Footnote 648:

See _supra_, p. 34.

Footnote 649:

See W. Coventry, II. 214-5.

Footnote 650:

Abuses by sheriffs and other bailiffs continued to be rife after 1215
as before it. Many later statutes afford graphic illustrations of the
oppressive conduct they sought to control. In 1275 Edward found it
necessary to provide “that the sheriffs from henceforth shall not
lodge with any person, with more than five or six horses; and that
they shall not grieve religious men nor others, by often coming and
lodging, neither at their houses nor at their manors.” See Statute of
Westminster, c. 1, confirmed by 28 Edward I., stat. 3, c. 13.

(1) _The sheriff._ No royal officer was better or more justly hated than
the sheriff. The chapter under discussion affords strong evidence alike
of his importance and of the jealousy with which his power was viewed.
The very briefest sketch of the origin and growth of the office is all
that is here possible. Long before the Conquest, in each shire of
England, the interests, financial and otherwise, of the kings of the
royal house of Wessex had been entrusted to an agent or man of business
of their own appointing, known as a _scir-gerefa_ (or shire-reeve).
These officers were continued by the Norman monarchs with increased
powers under the new name of _vice comites_.[651] It is an illustration
of the tenacity of the Anglo-Saxon customs and names that this Latin
title never took root, whereas the old title of sheriff continues to the
present day.

-----

Footnote 651:

Cf. _supra_, pp. 17-20.

-----

It is true that in England during the Anglo-Saxon period the chief power
over each shire or group of shires had been shared among three
officers—the bishop, the earl, and the sheriff. The bishop, by the
natural differentiation of functions, soon confined his labours to the
spiritual affairs of his diocese; while the deliberate policy of the
Conqueror and his successors relegated the earl to a position of dignity
altogether severed from the possession of real power. Thus the sheriff
was left without a rival within his shire. For a period of at least one
hundred years after the Norman Conquest he wielded an excessive local
authority as the sole tyrant of the county. He was not indeed
irresponsible, but it was difficult for his victims to obtain the ear of
the distant king, who alone was strong enough to punish him. The zenith
of the sheriff’s power, however, was passed in the twelfth century, and
before its close changes had been introduced with the view of checking
his abuses. Henry II. frequently punished his sheriffs for their
misdeeds, and removed them from office.

It has already been explained how in 1194 the sheriff’s powers were
further restricted, while new officers were appointed in each county to
share the authority still left to him. To the very next year (1195) is
usually traced the origin of the justices of the peace, who gradually
took over the chief duties of the sheriff until they had practically
superseded him as the ruling power in the county. In Tudor days a new
rival appeared in the Lord Lieutenant, then first appointed in each
shire to represent the Crown in its military capacity, and particularly
to take over command of the militia of the county. The fall of the
sheriff from his former high estate was thus gradual, although finally
most complete. From presiding, as he did in his golden age, over all the
business of the district—financial, administrative, military, and
judicial—the sheriff has become, in England at the present day, a mere
honorary figure-head of the county executive. A high sheriff is still
chosen annually by King Edward for each county by picking at random one
name out of a list of three leading land-owners presented to him for
that purpose by the judges. The gentleman on whom this sometimes
unwelcome dignity is thrust is still nominally responsible during his
year of office for the execution of all writs of the superior Courts
within his county, for returning the names of those elected to serve in
the House of Commons, and for many other purposes; but his
responsibility is chiefly theoretical. All the real duties of his office
are now performed in practice by subordinates. What really remains to
him is an empty and expensive honour, usually shunned rather than
courted. In Scotland and America the sheriff also exists at the present
day, but his position and functions have in these countries developed in
very different directions. In Scotland, in opposition to what has
happened in England and America, the sheriff has remained emphatically a
judicial officer, the judge of an inferior court, namely, the local
court of his shire, known as “the Sheriff Court.” He has thus retained
intact his judicial functions, to which such nominal administrative
duties as still remain to him are entirely subordinate. In the United
States of America, on the contrary, the sheriff is a purely executive
official, possessing perhaps more real power, but notably less honour
and social distinction than fall to the lot of the English high sheriff.
The duties of his office are sometimes performed by him in person; he
may even set out at the head of the _posse comitatus_ in pursuit of
criminals. Three completely different offices have thus sprung from the
same constitutional root, and all three are still known by one name in
England, Scotland, and America respectively.

(2) _The constable._ Portions of certain counties were exempted,
partially or entirely, from the sheriff’s bailiwick, and placed under
the authority of specially appointed magistrates. Thus districts
afforested were administered by forest wardens assisted by verderers who
excluded the sheriffs and coroners; while royal fortresses, together
with the land immediately surrounding them, were under the sole command
of officers known indifferently as castellans or constables.[652] The
offices of warden of a particular forest and warden of an adjacent royal
castle were frequently conferred on the same individual. Indeed, chapter
16 of the Forest Charter of Henry III. seems to use the term
“castellans” as the recognized name of forest wardens, whom it forbids
to hold “pleas of the forest,” although they may attach or “keep” them
(with the co-operation of the verderers), and present them for trial
before the king’s emissaries when next sent to hold a forest eyre—thus
offering a complete parallel between procedure at “forest pleas” and
that prescribed by the present chapter for ordinary pleas of the
Crown.[653]

-----

Footnote 652:

These localities were completely independent of the ordinary executive
authorities of the county; in addition, partial exemption from the
sheriff’s control was enjoyed by (_a_) chartered boroughs and (_b_)
holders of franchises.

Footnote 653:

Cf. _infra_, c. 48.

-----

The name constable is an ambiguous one, since it has at different
periods of history been applied to officers of extremely different
types. The king’s High Constable, a descendant of the horse-thegn of the
Anglo-Saxon kings, was originally that member of the royal household who
was specially responsible for the king’s stables. At a later date, he
shared with the Earl Marshal the duties of Commander-in-chief of the
king’s armies. The name of constable was also used in a wider sense to
designate other and subordinate royal ministers. It came to be applied
to commanders of small bodies of troops, whether in castles or
elsewhere. At a later date the word lost its warlike associations, and
was used in connection with the duties of watch and ward. A constable
was a person specially entrusted with enforcing order in his own
locality. Thus each hundred had its high constable and each village its
petty constable in the fourteenth and fifteenth centuries.[654] These
various officials were thus, at different dates, all designated by a
name usually, at the present day, confined to ordinary members of the
police force.

-----

Footnote 654:

See H. B. Simpson in _English Historical Review_, X. 625, and
authorities there cited.

-----

The word as used in Magna Carta had not yet lost its military character,
but denoted the castellan who commanded the troops which garrisoned a
royal castle.[655] Such an office was one of great trust; and
correspondingly wide powers were conferred upon its holder. The warden
of a castle held an important military command, and acted as gaoler of
the prisoners confided to the safe-keeping of his dungeons. He had
authority, under certain ill-defined restrictions, to take whatever he
thought necessary for provisioning the garrison—a privilege, the
exercise of which frequently led to abuses, guarded against by chapters
28 and 29 of Magna Carta, where they are discussed under the head of
purveyance. He had also, to a limited extent, judicial authority. Not
only did he try pleas for small debts to which Jews were parties, but he
enjoyed a jurisdiction over all petty offences committed within the
precincts of the castle, analogous to that of the sheriff within the
rest of the county. This power of trying and punishing misdemeanours was
not taken away by the Great Charter, and was confirmed by implication in
1300 by a statute which directed that the constable of Dover Castle
should not hold within the castle gate “foreign” pleas of the county
which did not affect “the guard of the castle.”[656] It is not known at
what date the judicial powers of constables fell into disuse; but they
still acted as gaolers at a much later period. In the reign of Henry IV.
complaint was made that constables of castles were appointed justices of
the peace, and imprisoned in one capacity the victims whom they had
unjustly condemned in another. This practice was put down by statute in
1403.[657]

-----

Footnote 655:

The evidence collected by Coke, _Second Institute_, 31, conclusively
proves the identity of these two offices. See also Round, _Ancient
Charters_ No. 55, where Richard I. in 1159 speaks of “_constabularia
castelli Lincolniae_.”

Footnote 656:

See _Articuli super cartas_, 28 Edward I. c. 7.

Footnote 657:

See 5 Henry IV. c. 10. Coke, _Second Institute_, 30, relates, as an
indication of the authority and pretensions of these constables, that
they had seals of their own “with their portraiture on horseback.”

-----

It would seem that at an earlier period the constable sometimes acted as
a deputy-sheriff. Chapter 12 of the Assize of Northampton provided that
when the sheriff was absent the nearest _castellanus_ might take his
place in dealing with a thief who had been arrested. His interference
outside his own precincts must, however, have been regarded with great
jealousy, and the coroners, after their appointment in 1194, would
naturally act as substitutes during the sheriff’s absence.

(3) _The coroners._ The coroners of each county, after their institution
in 1194, seem to have shared with the sheriff most of the powers of
which the latter had previously enjoyed a monopoly. The nature of their
duties is explained by the oath of office sworn in the same words for
many centuries, “_ad custodienda ea quae pertinent ad coronam_.” Their
duty was to guard royal interests generally; and their “keeping” of
royal pleas was merely one aspect of this wider function. Besides
“attaching” those suspected of crimes—that is, receiving formal
accusations and taking such sureties as might be necessary, it was their
duty to make all such preliminary investigations as might throw light on
the case when the formal trial was afterwards held; they had, for
example, to examine the size and nature of the victim’s wounds in a
charge of mayhem.[658] They were required, in particular, to keep a
watchful eye on all royal property, being responsible for the
safe-keeping of deodands, wrecks, and treasure trove. They had also to
appraise the value of all chattels of criminals forfeited to the king.
When felons took refuge in sanctuary, it was the coroner who arranged
for their leaving the country on forfeiting all that they had. They also
kept a record of those who had been outlawed, and received “appeals” or
private accusations of criminal charges.[659]

-----

Footnote 658:

See Bracton, f. 122 b.

Footnote 659:

In 1197, Richard’s Assize of Measures appointed six _custodientes_ in
each county and town. These were _coroners_ over a limited class of
offences, viz., the use of false weights and measures. Cf. _infra_,
under c. 35.

-----

Magna Carta forbade the coroner to determine the pleas of the Crown;
but, even after 1215, he sometimes did justice upon felons caught
red-handed, whose guilt was self-evident without trial. An act of Edward
I.[660] accurately defined his duties, empowering him to attach pleas of
the Crown and to present criminals to the justices for trial, but
forbidding him to proceed further alone.

-----

Footnote 660:

Statute of Westminster, I. c. 10.

-----

The coroner’s functions, originally so wide and varied, have been
gradually narrowed down, until now there is practically only one duty
commonly associated with his office, namely, the holding of an inquest
on a dead body where there are suspicious circumstances.[661] In
addition to this, however, he is still responsible for treasure-trove or
valuables found buried in the ground, and he is also competent to act
generally as the substitute of the sheriff in case of the latter’s
illness or absence during his year of office.

-----

Footnote 661:

Cf. Coke, _Second Institute_, 31, “In case when any man come to
violent or untimely death, _super visum corporis_.”

-----

(4) _The bailiffs._ The mention by name of three classes of local
officers is supplemented by the addition of an indefinite word
sufficiently wide to cover all grades of Crown officials. The term
“bailiff” may be correctly applied to every individual to whom authority
of any sort has been delegated by another. It would, in the present
instance, include the assistants of sheriffs and constables, the men who
actually served writs, or distrained the goods of debtors; and also
generally all local officials of every description holding authority
directly or indirectly from the Crown. The district over which his
office extended was called his “bailiwick,” a term often applied to the
county considered as the sphere of the sheriff’s labours.

CHAPTER TWENTY-FIVE.

Omnes comitatus, hundrede, wapentakii, et trethingic, sint ad antiquas
firmas absque ullo incremento, exceptis dominicis maneriis nostris.

All counties, hundreds, wapentakes, and trithings (except our demesne
manors) shall remain at the old rents, and without any additional
payment.

This provision also was directed against the sheriffs, and shows a
praiseworthy determination to get to the root of the disease, instead of
merely attacking the symptoms. The rents at which the counties (or parts
of them) were farmed out to the sheriffs must no longer be arbitrarily
raised, but were to remain at the old figures which had become
stereotyped from long usage. To understand how such increases would
injuriously affect the inhabitants of the county, some explanation is
necessary. Centuries before the Norman Conquest, the long process had
been already completed by which England had been gradually mapped out
into shires on lines substantially the same as those which still exist.
Each county had been further subdivided into smaller districts known as
“hundreds” in the south, and as “wapentakes” in the Danish districts of
the north; while intermediate divisions existed, exceptionally, in some
of the specially large counties such as York and Lincoln, each of which
had three “trithings” or ridings.

In commenting upon chapter 24, it has been already explained how the
Anglo-Saxon kings entrusted their interests in each shire to an officer
called a sheriff, and how a similar officer under the Norman kings
became practically the chief magistrate and local judge in the county.
His financial duties, however, long remained the most important: William
I. and his successors had greater pecuniary interests in the English
counties than their Anglo-Saxon forerunners ever had, and the sheriffs
were their agents in collecting all rents and other dues. Even before
the Conquest, however, the sheriff of an ordinary county had ceased to
be a mere intermediary, who lifted the king’s rents and paid over, pound
by pound, the yearly varying sums he might receive. He had become a
_firmarius_: he bought for a yearly rent the right to collect and
appropriate to his own uses the various revenues of the county. The
Crown got only the exact sum stipulated for, known as the _firma
comitatus_; while the balance, if any, remained with the sheriff. That
officer was liable, on the other hand, for the sum agreed on, even when
the annual yield fell short of his anticipations. In plain words, the
sheriff speculated in the returns, and it was his business, by fair
means or foul, to make sure of a handsome surplus.

Authorities differ as to the exact list of items purchased by the slump
sum known as _firma comitatus_; but undoubtedly the two chief sources of
revenue embraced were the profits of justice dispensed in the local
courts, and the rents and returns from the various royal manors in the
county.

William I. sharply raised the amounts of all these farms for his own
benefit, and his successors endeavoured, whenever possible, to increase
them still further. Now it might seem at first sight that these
additional burdens concerned exclusively the Crown and the sheriff, but
such was by no means the case. The sheriff took care to pass on the
burden primarily falling upon him to the shoulders of those who were
subject to his authority. When the king exacted more from the sheriff,
the latter in turn increased the pressure on the inhabitants of his
county or group of counties. His rule tended always to be oppressive,
but his unjust fines and exactions would be doubled at times when the
amount of the _firma_ had recently been raised.

Under the vigilant rule of Henry II. some measure of relief was obtained
by the shires from the misdeeds of their local tyrants, since that
far-seeing king knew that his own best interests called for a
curtailment of the pretensions of the sheriffs. He punished their
excesses, and frequently deprived them of office. Under John the
sheriffs had a comparatively free hand to oppress their victims, for he
entered into a tacit alliance with them, in order that the two tyrants
(the heads of the central and the local government respectively) might
together fleece the men of the county more effectually. In addition to
the fixed annual rents in name of _firma_ which had again become
stereotyped, John extorted an additional lump payment called either an
_incrementum_ or by various other names, and allowed the sheriffs to
inflict new severities in order to recoup themselves for their
additional outlay.[662]

-----

Footnote 662:

Cf. Miss Norgate (_John Lackland_, p. 214) who explains that the Crown
claimed a share of the sheriffs’ ever-increasing surplus, and "this
was done, not by putting the ferm at a higher figure, but by charging
the sheriff with an additional lump sum under the title of
_crementum_, or, in John’s time, _proficuum_.“ But this practice was
by no means an innovation invented by John. Henry II. often exacted
such extra payments under the name of ”_gersuma_." Thus in _Pipe Roll_
Henry II. (p. 11) the Sheriff of Norfolk and Suffolk paid 200 marks
under that name. The method adopted was practically to set up the
office of sheriff to auction. The highest suitable bidder obtained the
post, and the amount of the successful bid was entered at the
exchequer as a _gersuma_.

Magna Carta made no attempt to abolish the practice of farming out the
shires, but forbade alike the increase of the farm and the exaction of
an _incrementum_.

If this reform benefited the men of the counties in their dealings with
the sheriffs, it also gave the sheriffs an unfair advantage over the
exchequer. The total value of the various assets included in the _firma
comitatus_ had greatly increased in the past, and would probably
continue to increase in the future. Therefore, it was absurd to bind the
Crown by a hard-and-fast rule which would practically make a present of
this future “unearned increment” to the sheriff. It belonged of right to
the Crown; and the exchequer had increasing need of supplies to meet the
increasing duties of the central government. To stereotype the _firma_
to be paid in return for a constantly increasing revenue was unfair to
the Crown.[663] It is thus easy to understand why this chapter was
entirely omitted in 1216 and in subsequent reissues. The _Articuli super
cartas_, on the other hand, while conceding to the counties the right of
electing their own sheriffs, reaffirmed the principle of John’s Charter,
declaring that neither the bailiwicks and hundreds of the king, nor
those of great lords ought to be put to farm at too high rates. The
evil, however, continued under a new form; sheriffs, while only paying a
moderate farm themselves, sublet parts of their province at much higher
rates, thus appropriating the increment denied to the exchequer, while
the bailiffs who had paid the increase could not “levy the said ferm
without doing extortion and duress to the people.”[664] Three successive
acts prohibited this practice, declaring that hundreds and wapentakes
must either be kept in the sheriff’s own hands, or sublet, if at all, at
the old fixed farms only.[665]

-----

Footnote 663:

Cf. Sir James Ramsay, _Angevin Empire_, 476, who describes this
provision as “an impossible requirement.” Dr. Stubbs’ paraphrase is
not entirely happy: “the ferms of the counties and other jurisdictions
are not to be increased.” See _Const. Hist._ I. 575.

Footnote 664:

These are the words of the Statute of 1330, cited below.

Footnote 665:

See 4 Edward III. c. 15; 14 Edward III. c. 9; and 4 Henry IV. c. 5.

-----

One exception to the scope of its own provisions was deliberately made
by Magna Carta—an exception of an important and notable nature; the
demesne manors of the Crown were deliberately left exposed to arbitrary
increases of their annual rents. The towns in this respect were
practically in the same position as the demesne manors. It is true that
many of them had received separate charters fixing the amounts annually
payable under the name of farm (_firma burgi_ in their case), and that
all such charters received a general confirmation in chapter 13 of the
Great Charter, but the Crown could probably evade these promises by
applying the name of “increment” to any additional payments desired, or,
if that were objected to, might still resort to an arbitrary “tallage,”
the right to extort which had not been taken away by Magna Carta. The
money was as good to the Crown under one name as under another.[666]

-----

Footnote 666:

Cf. _supra_, pp. 278-80.

-----

CHAPTER TWENTY-SIX.

Si aliquis tenens de nobis laicum feodum moriatur, et vicecomes vel
ballivus noster ostendat litteras nostras patentes de summonicione
nostra de debito quod defunctus nobis debuit, liceat vicecomiti vel
ballivo nostro attachiare et inbreviare catalla defuncti, inventa in
laico feodo, ad valenciam illius debiti, per visum legalium hominum, ita
tamen quod nichil inde amoveatur, donec persolvatur nobis debitum quod
clarum fuerit; et residuum relinquatur executoribus ad faciendum
testamentum defuncti; et, si nichil nobis debeatur ab ipso, omnia
catalla cedant defuncto, salvis uxori ipsius et pueris racionabilibus
partibus suis.

If any one holding of us a lay fief shall die, and our sheriff or
bailiff shall exhibit our letters patent of summons for a debt which
the deceased owed to us, it shall be lawful for our sheriff or bailiff
to attach and catalogue chattels of the deceased, found upon the lay
fief, to the value of that debt, at the sight of lawful men, provided
always that nothing whatever be thence removed until the debt which is
evident[667] shall be fully paid to us; and the residue shall be left
to the executors to fulfil the will of the deceased; and if there be
nothing due from him to us, all the chattels shall go to the deceased,
saving to his wife and children their reasonable shares.

-----

Footnote 667:

Cf. the use of the phrase “a liquid debt” in Scots law.

-----

The primary object of this chapter was to regulate the procedure to be
followed in attaching the personal estates of Crown tenants who were
also Crown debtors. Incidentally, however, it throws light on the
general question of the right of bequeathing property.

I. _The Nature of the Grievance._ When a Crown tenant died it was almost
certain that arrears of one or other of the numerous scutages,
incidents, or other payments due to the Crown remained unpaid. The
sheriff and the bailiffs of the district where the deceased’s estates
lay were in the habit of seizing everything they could find on his manor
under the excuse of securing the interests of their royal master. They
attached and sold chattels out of all proportion to the sum actually
due; and after satisfying the Crown debt, a large surplus would often
remain in the sheriff’s hands which it would be exceedingly difficult
for the relatives of the deceased freeholder to force him to disgorge.

Magna Carta here sought to make such irregularities impossible for the
future by carefully defining the exact procedure to be followed in such
circumstances. The sheriff and his bailiffs were forbidden to touch a
single chattel of a deceased Crown tenant, unless they came armed with a
legal warrant in the form of royal letters patent vouching the existence
and the amount of the Crown debt. Even after exhibiting a warrant in
proper form, the officers were only allowed to attach as many chattels
as could reasonably be considered necessary to satisfy the full value of
the debt due to the exchequer; and everything so taken must be carefully
inventoried. All this was to be done “at the sight of lawful men,”
respectable, if humble, neighbours specially summoned for that purpose,
whose function it was to form a check on the actions of the sheriff’s
officers generally, to prevent them from appropriating anything not
included in the inventory, to assist in valuing each article and to see
that no more chattels were distrained than necessary. A saving clause
protected the interests of the Crown by forbidding the removal from the
tenant’s fief of any of the chattels, even those not so attached, until
the full ascertained amount had actually been paid to the exchequer. The
Crown’s preferential claims remained over everything on the manor until
the debt was extinguished. Only after that had been done, could a
division of the estate take place among the deceased man’s relatives or
those in whose favour he had executed a Will.

These provisions should be read in connection with the terms of chapter
9,[668] which provided that diligence for Crown debts must proceed
against personal estate before the debtor’s freehold was distrained, and
laid down other equitable rules applicable alike to the case of a
deceased Crown debtor and to that of a living one.

-----

Footnote 668:

Cf. what is there said of the sheriff’s oppressions and the attempts
made to put an end to them.

-----

II. _The Right to Bequeath._ The main interest of this chapter lies,
however, for the historian of law and institutions, in quite a different
direction; to him it is valuable for the light incidentally thrown on
the limits within which the right of making Wills was recognized in
1215. The early law of England seems to have had great difficulty in
deciding how far it ought to acknowledge the claims made by owners of
property, both real and personal, to direct its destination after death.
Various influences were at work, prior to the Norman Conquest, to make
the development of this branch of law illogical and capricious.[669] Of
the law of bequests in the twelfth century, however, it is possible to
speak with greater certainty; definite principles had by that time
received general recognition. All testamentary rights over land or other
real estate (so far as these had ever actually existed) were now
abolished, not, as has sometimes been maintained, in the interest of the
feudal lord, but rather in the interests of the expectant heir.[670]
Thus the right to devise land had been absolutely prohibited before the
end of the twelfth century. Many reasons contributed to this result. For
one thing, it had become necessary to prevent churchmen from using their
influence to wring bequests of land from dying men, to the
impoverishment of the rightful heir, and to the destruction of the due
balance between Church and State, already menaced by the rapidly
accumulating wealth of the various religious orders.

-----

Footnote 669:

The subject is exhaustively discussed by Pollock and Maitland, II.
312-353.

Footnote 670:

See Pollock and Maitland, II. 324.

-----

Churchmen, in compensation as it were for the obstacles thus opposed to
their thirst for the land of the dying, made good their claim to
regulate all Wills dealing with personal estate; that is money, goods,
and chattels. They claimed and obtained for their own courts the right
to exclusive jurisdiction over all testamentary provisions, now, of
course, competent in respect of personal estate only. The Courts
Christian “proved” Wills, (that is, usurped the right to determine
whether they were really valid acts of the departed or not) and also
superintended their administration. In particular, they had control over
the “executors” who were originally the friends to whom the deceased had
made known his wishes as to the distribution of his money and chattels
on his death. The Church Courts ensured that the executors loyally
carried out these intentions, and prevented them from appropriating to
their own uses what had been entrusted to them for the good of the
deceased’s soul. In John’s reign, however, the Crown and its officers
interfered alike with the rights of testators to make Wills and the
rights of the bishop of the diocese to supervise the distribution. Not
only did the sheriffs find pretexts to help themselves; but John seems
to have maintained that Wills were not valid without his consent, which
had, as usual, to be paid for. Such, at least, is the inference to be
drawn from the existence of writs granting licences to make a Will, or
confirming one that had been made.[671] The king’s interference in this
province seems, however, to have been regarded as an entirely illegal
encroachment.

-----

Footnote 671:

On 30th August, 1199 (_New Rymer_, I. 78) John confirmed the testament
of Archbishop Hubert Walter; and on 22nd July, 1202, (_Ibid._, I. 86)
he granted permission to his mother, the dowager Queen Eleanor, to
make a Will.

-----

In strict law, rights of testation, though prohibited _quoad_ land, were
recognized _quoad_ personal estate. It must not, however, be supposed
that the testator was at liberty to divide or “devise” all his money and
chattels. The reasonable claims of wife and children must first be
respected, and only the free balance, after satisfying these, could be
distributed. It was long before any exact rule was established for
determining the amount of these “reasonable” claims. Much could be said
for an elastic rule which allowed the proportion of personal estate
falling to wife and children to vary with the circumstances of each
case; but this vagueness had one grave objection; it inevitably led to
friction and family quarrels. Magna Carta in this respect simply
confirmed existing practice, and made no attempt at definition. During
the thirteenth century, however, the lawful shares of wife and children
were definitely fixed by the English common law, and that, too, at
exactly the same proportions of the entire personal estate as are
recognized to the present day by the law of Scotland. Where a Scots
testator dies leaving wife and children, his moveable or personal estate
is regarded as falling naturally into three equal parts, known as the
widow’s part, the bairn’s part, and the dead’s part, respectively. It is
only with the last mentioned third of his own moveables that he can do
as he likes. If he disposes of the rest, wife and children may claim
their legal rights and “break the Will.” Where a wife survives but no
children, or _vice versa_, the division is into two equal portions.
Magna Carta recognises a similar threefold or twofold decision, and
contains a clear acknowledgment of what Scots law to the present day
quaintly describes as "the dead’s part." It was only the residue of the
deceased’s chattels after claims of wife and children had been
satisfied, which was “to fall to the deceased,” and which is also spoken
of as the portion of personal estate left to the executors “to fulfil
the testament of the deceased.” This portion was appropriated “to the
use of the dead”: that is, his executors, under the guidance of the
Church Courts, would use it for the salvation of his soul. The deceased
might either have given specific directions, or have left full powers to
his executors (frequently churchmen) to make the division for charitable
and religious purposes according to their own discretion. Part might go
to needy relations, or to the poor of the district; part to endow
religious houses; and part in masses for his eternal welfare.

Long subsequent to the thirteenth century, the laws of England and
Scotland as to the rights of succession of wife and children seem to
have remained identical: but, while Scots law is the same to the present
day, recognizing still the widow’s _jus relictae_ and the children’s
_legitim_, the English law has, by slow steps, the details of which are
obscure, entirely changed. The rule which acknowledged the children’s
right to one third of the personal estate was gradually relaxed, while
the testator became sole judge what provision he ought to make for his
sons, until at last a purely nominal sum of money was all that was
required. Finally the power to bequeath personal estate has (in sympathy
with exaggerated modern conceptions of the sacredness of rights of
“property”) expanded to such an extent that a father may leave his
children entirely penniless; and the law will not interfere. The law of
England, at the present day, does not compel him to leave his son or
daughter even the proverbial shilling. The phrase “to cut off a son with
a shilling,” which still lives in popular usage, may possibly perpetuate
a now forgotten tradition of an intermediate stage of English law, where
some provision, however inadequate, had to be made, if the Will was to
be allowed to stand.[672]

-----

Footnote 672:

The reissue of 1216 makes no alteration here, but that of 1217 omits
“_et pueris_,” thus protecting the wife’s “reasonable portion” but not
that of the sons. The words omitted were restored in 1225. It was
probably a mere clerical error.

-----

CHAPTER TWENTY-SEVEN.

Si aliquis liber homo intestatus decesserit, catalla sua per manus
propinquorum parentum et amicorum suorum, per visum ecclesie
distribuantur, salvis unicuique debitis que defunctus ei debebat.

If any freeman shall die intestate, his chattels shall be distributed
by the hands of his nearest kinsfolk and friends, under the
supervision of the church, saving to every one the debts which the
deceased owed to him.

Here the Great Charter proceeds to remedy an evil connected with
_intestate_ succession, a natural sequel to the subject of _testate_
succession. John was made to promise that he would not seize, as forfeit
to his exchequer, the chattels of men who had neglected to make a will.
In the Middle Ages all classes of men, good and bad alike, exhibited an
extreme horror of dying intestate.[673] Several causes contributed
towards this frame of mind. Churchmen, from motives not unmixed,
diligently inculcated the belief that a dying man’s duty was to leave
part at least of his personal estate (the only property over which the
law allowed him powers of disposal) for religious and charitable
objects. The bishop or priest, who had power to give or withhold extreme
unction to the sinner who had confessed his sins, was in a peculiarly
strong position to enforce his advice upon men who believed the Church
to hold the keys of heaven. Thus, every man on his death-bed had
powerful motives for making his will in such form as the Church
approved. Motives of a more worldly kind urged him in the same
direction. If he died intestate, a scramble for his personal effects
would undoubtedly result. Many powerful claimants were ready to compete.
In Glanvill’s day, for example,[674] every feudal lord claimed the goods
of his intestate vassals. Such demands were difficult to defeat,
although Bracton, at a later date[675] declared them to be illegal, at
least in cases of sudden death. Then, the kinsmen—rich and poor
relations—had certain rights never very clearly defined. The Church,
too, stood ready, with claims judiciously vague, which might be expanded
as occasion required. It arrogated, at the very lowest, the right to
distribute the dead man’s chattels for the good of his soul, and there
are instances when a strong-minded bishop or abbot insisted on such a
distribution, although the deceased had died unrepentant, leaving no
will.[676]

-----

Footnote 673:

Pollock and Maitland, II. 354.

Footnote 674:

VII c. 16.

Footnote 675:

F. 60 b.

Footnote 676:

This course was taken in 1197 by Abbot Samson, whose deeds are
portrayed for us by Jocelyn of Brakelond to the delight of Thomas
Carlyle. See _Past and Present_, _passim_. Cf. also Pollock and
Maitland, II. 355.

-----

Prelates allowed themselves liberal discretion in regard to "the dead’s
part" over which they thus assumed control. Something might go to the
poor, but much would naturally be spent on masses for the departed soul,
while a portion might openly be retained as a recompense for trouble
expended in this pious cause. The king was another competitor for the
goods of those who left no will; and attempts were made at various times
to treat intestacy, more especially in the case of clerks, as a cause of
forfeiture.[677] For our present purpose it is unnecessary to discuss
whether this claim was founded on the royal prerogative or on the rights
of the king in his capacity either as overlord or as patron of vacant
sees.[678]

-----

Footnote 677:

See Pollock and Maitland, II. 354. Examples are readily found: “When
Archbishop Roger of York died in 1182, Henry II. enjoyed a windfall of
£11,000, to say nothing of the spoons and saltcellars.” Pollock and
Maitland, I. 504.

Footnote 678:

Royal prerogatives in the twelfth century were still elastic and
undefined. Henry II. used them freely, but on the whole fairly. His
sons stretched every doubtful claim to its utmost limits. The Crown
was the legal heir of all Jews (cf. c. 10) and apparently of all
Christian usurers as well, at least of such as died unrepentant. (See
Pollock and Maitland, II. 486, and authorities there cited.) It is
interesting in this connection to note that the making of a will was
looked on as a necessary condition of a usurer’s repentance. (See
_Dialogus de Scaccario_, 224–5, nn.) The king, further, took the goods
of all who died a felon’s death (cf. c. 32) and of men who committed
suicide (itself a felony). John, so we may infer from Magna Carta,
went further, and appropriated the chattels of all intestates. Were
there any precedents from his father’s reign for this wider claim?
Madox (I. 346) cites an entry from the _Pipe Polls_ of 1172, recording
60 marks due the exchequer as the value of the chattels of an
intestate; and, two years later, mention is made _de pecunia
Gilleberti qui obiit intestatus_. There is nothing to show whether
such men were, or were not, usurers. The Pope was another competitor
for the personal estates of intestate clerks. In 1246, he issued an
edict making this demand. Even Henry III. (dependent and ally of Rome
as he was) protested, and the edict was withdrawn. (See Pollock and
Maitland, II. 357.)

-----

This chapter of Magna Carta was directed against all such pretensions of
the Crown or its officials. Whoever else might get these windfalls, King
John must not compete. So much is clear; some sort of compromise was,
further, made between the two most likely claimants. Magna Carta
provided for a friendly co-operation between the deceased’s kinsmen and
the Church in distributing the residue of the intestate’s personal
estate, after satisfying all preferential claims of creditors, wives,
and children. This chapter, although afterwards struck out of all
reissues of the Charter, seems to have been observed in practice.[679]
Apparently, however, the right of the kinsfolk to share the control with
the Church gradually receded into the background, while the Courts
Christian assumed complete authority in all cases of intestacy; so much
so, that churchmen had frequently to be reminded that they were only the
dead man’s administrators, and not entitled to appropriate the goods to
their own uses.

-----

Footnote 679:

Cf. Pollock and Maitland, II. 355. “This clause, though it was
deliberately withdrawn, seems to have settled the law.”

-----

It is easy to understand the motives which, in 1216, led those
responsible for the government of the young Henry III. to withdraw this
provision of Magna Carta. The Crown had then need of all the money it
could get, and so long as the uncertainty of the law allowed a scramble
to take place for the goods of intestates, the king could not be asked
to stand aside with his hands tied by a clause of Magna Carta. He would
take his chance with the other claimants. It was the Church, however,
and not the Crown, which finally secured the prize.[680]

-----

Footnote 680:

This chapter should be compared with a corresponding provision in the
Charter of Liberties granted by Henry I. William Rufus, like John, had
evidently helped himself freely to the chattels of intestates. Henry
I. (c. 7) made what seems to be merely a partial renunciation of this
right: where the deceased had been prevented “by arms or infirmity”
from making his will, his relations and vassals might distribute his
goods for him. Are we to infer that Henry reserved the right to seize
them in all other events? Stephen, in his second or Oxford Charter
(cf. _supra_, p. 121 and appendix), clearly and unambiguously resigned
all such rights, as far as the property of churchmen was concerned.
_Si vero morte preoccupatus fuerit, pro salute anime ejus ecclesie
consilio eadem fiat distributio._ He also confirmed full rights of
making wills to churchmen. We have already seen that his successors
did not observe these provisions. (See _supra_, pp. 383-4, and also
Pollock and Maitland, 1. 503.)

CHAPTER TWENTY-EIGHT.

Nullus constabularius, vel alius ballivus noster, capiat blada vel alia
catalla alicujus, nisi statim inde reddat denarios, aut respectum inde
habere possit de voluntate venditoris.

No constable or other bailiff of ours shall take corn or other
provisions from any one without immediately tendering money therefor,
unless he can have postponement thereof by permission of the seller.

This chapter is the first of several which redressed abuses springing
from one root, namely, the exercise of the royal right of purveyance by
the various agents of the local government.

I. _Purveyance in General._ The Norman and Angevin kings of England were
compelled by their administrative duties and induced by the pleasures of
the chase to move their courts constantly from district to district.
During these royal progresses the difficulties must have been great of
finding sufficient food for the enormous retinues surrounding the king
in times of peace, and for his armed levies in time of war. It was to
the interests of the community as a whole that the work of government
and of national defence should not be brought to a stand-still for want
of supplies. No opposition was made when the king arrogated to himself
the privilege of appropriating, under fair conditions, such necessaries
as his household might require. Such a right, not unlike that enjoyed in
modern times by the commander of an army encamped in an enemy’s country,
was allowed to the kings of England in their own land in times of peace,
and was known as the prerogative of purveyance.[681] Unfortunately, the
conditions under which supplies might be requisitioned were left vague:
the privilege was therefore subject to constant abuse. In theory it was
always spoken of as merely a right of pre-emption; the provisions seized
were to be paid for at the market rate: but practice tended to differ
lamentably from theory. In the absence of a neutral arbitrator to fix
the value of the goods, the unfortunate seller was often thankful to
accept any pittance offered by royal officials, who might subsequently
indeed charge a higher rate against the Crown. Payment was often
indefinitely delayed or made not in coin but in exchequer tallies, “a
vexatious anticipation of taxation,” since these could only be used in
payment of Crown dues. What was worse, in the hurry of the moment, the
king’s purveyors often omitted the formality of paying altogether.

-----

Footnote 681:

See Blackstone, _Commentaries_, I. 287, for an often-quoted definition
of purveyance.

-----

Magna Carta did not abolish purveyance, and placed no restrictions
whatever upon its use for the legitimate and original purpose of
supplying the king’s household. Some slight attempt to control its
exercise was made sixty years later in the Statute of Westminster I.;
but without producing much effect.[682] The grievances connected with
purveyance continued throughout four centuries as a fertile source of
vexation to the people and of friction between parliament and the king.
An attempt, made by the House of Commons to induce James I. to surrender
this prerogative for a suitable money grant, ended in failure, with the
abandonment of the abortive treaty known as “the Great Contract.” In the
general re-settlement of the revenue, however, at the Restoration,
purveyance and pre-emption, which had fallen into disuse during the
Commonwealth, were abolished.[683] Yet in the following year a new
statute[684] virtually revived one branch of the right under essential
modifications: when royal progresses were necessary in the future,
warrants might be issued from the Board of Green Cloth, authorizing the
king to use such carts and carriages as he might require, at a fair rate
of hire specified in the Act of Parliament.

-----

Footnote 682:

3 Edward I. c. 32.

Footnote 683:

12 Charles II. c. 24, ss. 11-12.

Footnote 684:

13 Charles II. c. 8.

-----

II. _Branches of Purveyance restricted by Magna Carta._ A practice
tolerated in spite of its burdensome nature because of its absolute
necessity, when confined to its original purpose of providing for the
needs of the king’s household, became intolerable when claimed by every
castle-warden, sheriff, and local bailiff for his own personal or
official needs. The annoyance and hardships inseparable from such
arbitrary interference with the rights of private property were thus
increased tenfold, while ample discretionary authority was vested in a
class of officials least qualified to use it, unscrupulous foreign
adventurers hired by John to intimidate the native population,
responsible to no one save the king, and careful never to issue from
their strongholds except at the head of their reckless soldiery. The
Great Charter contained a few moderate provisions for checking the
abuses of purveyance as an instrument of local administration.

(1) _The provisioning of castles._ Commanders of fortresses were left
perfectly free by Magna Carta to help themselves to such corn and other
supplies as they deemed necessary for their garrisons. Immediate
payment, however, must be made in current coin (not in exchequer
tallies) for everything they requisitioned, unless the owner, on whom a
compulsory sale was forced, consented to postpone the date of payment.
The Charter of 1216 made a slight modification in favour of castellans.
Payment for goods taken from inhabitants of the town where the castle
was situated might be legally delayed for three weeks, a term extended
in 1217 to forty days. Such relaxation was perhaps necessary to meet the
case of a warden with an empty purse called on to provide against an
unexpected siege or other emergency; but the peaceful townsmen, over
whose dwellings the dark walls of a feudal stronghold loomed, would not
prove creditors who pressed unduly for payment. Under Henry’s Charters,
as under that of John, immediate payment had to be tendered to owners of
goods who lived elsewhere than in this neighbouring town.[685]

-----

Footnote 685:

The Statute of Westminster I. (3 Edward I. c. 7) enacted “that no
constable or castellan from henceforth take any prise or like thing of
any other than of such as be of their town or castle, and that it be
paid or else agreement made within forty days, if it be not ancient
prise due to the king, or the castle, or the lord of the castle,” and
further provided (c. 32) that purveyors taking goods for the king’s
use, or for a garrison, and appropriating the price received therefor
from the exchequer, should be liable in double payment and to
imprisonment during the king’s pleasure.

-----

(2) _The requisitioning of horses and carts._ The provisions of chapter
30, modified in subsequent re-issues, sought to prohibit sheriffs from
exacting compulsory cartage from the property of freemen.

(3) _The appropriation of timber._ The succeeding chapter confined the
king and his officers to the use of such wood as they could obtain from
the royal demesnes.[686]

-----

Footnote 686:

For details, see under cc. 30 and 31.

-----

III. _Branches of Purveyance not mentioned in Magna Carta._ A wide field
was left alike for the use and the abuse of this prerogative, after due
effect had been given to these moderate provisions. In addition to the
constant friction kept up through many centuries by its employment as a
means of supplying the wants of the king’s household, two minor aspects
of purveyance came into special prominence in later history.

(1) _The requisition of forced labour._ Hallam points out that the
king’s rights of pre-emption over such goods as he required were
extended, by analogy, to his subjects’ labour. "Thus Edward III.
announces to all sheriffs that William of Walsingham had a commission to
collect as many painters as might suffice for ‘our works in St.
Stephen’s chapel, Westminster, to be at our wages as long as shall be
necessary’; and to arrest and keep in prison all who should refuse or be
refractory; and enjoins them to lend their assistance. Windsor Castle
owes its massive magnificence to labourers impressed from every part of
the kingdom. There is even a commission from Edward IV. to take as many
workmen in gold as were wanted, and employ them at the king’s cost upon
the trappings of himself and his household."[687] Perhaps, however, such
demands did not form a branch of purveyance at all, but were merely
instances of illegal royal encroachments.

-----

Footnote 687:

Hallam, _Middle Ages_, III. 221.

-----

(2) _Billeting of soldiers in private houses._ This practice, which may
be considered a branch of purveyance, has always been peculiarly
abhorrent to public opinion in England. It is as old as the reign of
John; for when that king visited York in 1201 he complained bitterly
that the citizens neither came out to meet him nor provided for the
wants of his crossbow-men. His threats and demands for hostages were
with difficulty turned aside by a money payment of £100.[688] Charles I.
made an oppressive use of this branch of what seems to have been once a
perfectly legal prerogative, punishing householders who opposed his
unpopular measures by quartering his dissolute soldiery upon them, a
practice branded as illegal by the Petition of Right in 1628.[689]

-----

Footnote 688:

See _Rotuli de oblatis et finibus_, 119.

Footnote 689:

See 3 Charles I. c. 1.

CHAPTER TWENTY-NINE.

Nullus constabularius distringat aliquem militem ad dandum denarios pro
custodia castri, si facere voluerit custodiam illam in propria persona
sua, vel per alium probum hominem, si ipse eam facere non possit propter
racionabilem causam; et si nos duxerimus vel miserimus eum in exercitum,
erit quietus de custodia, secundum quantitatem temporis quo per nos
fuerit in exercitu.

No constable shall compel any knight to give money in lieu of
castle-guard, when he is willing to perform it in his own person, or
(if he himself cannot do it from any reasonable cause) then by another
responsible man. Further, if we have led or sent him upon military
service, he shall be relieved from guard in proportion to the time
during which he has been on service because of us.

Castle-guard, or the liability to serve in the garrison of a royal
fortress, formed part of the feudal obligations of the owners of certain
freehold estates. This service was sometimes due in lieu of attendance
in the army; more usually the tenant who owed garrison duty owed
knight’s service as well.[690] It was probably this duplication of
duties that prevented castle-guard from hardening into a separate
tenure.[691] The right to enforce these obligations was naturally
entrusted to the constables of the various castles whose duty it was to
keep their garrisons at their full strength. John, however, preferred to
commute personal service of castle-guard for money payments (analogous
to the scutage paid in lieu of knight’s service), and to man his feudal
towers with soldiers of fortune rather than with rebellious Englishmen.
Castellans were, therefore, in the habit of demanding money even from
those who offered personal service. What was worse, when the freeholder
had followed John on distant service, he was mulcted in a money payment
because he had not stayed at home to perform garrison duty during the
same period. Both forms of this abuse were absolutely forbidden in 1215.
In certain circumstances, however, this prohibition would have deprived
the king of what was equitably due to him. Suppose he had granted two
fiefs to the same tenant—one by simple knight’s service, the other by
castle-ward. A double holding implied double service; the tenant could
not in fairness plead that the service of one knight rendered abroad
operated as the full discharge of the services of two knights due from
his two separate fiefs. Castle-guard must in such a case be performed by
an efficient deputy, or else the usual compensation be paid. The reissue
of 1217 amended John’s Charter to this effect. Service with the army
abroad operated as a discharge of castle-guard at home, but not where
the tenant owed two services for two distinct fiefs.[692]

-----

Footnote 690:

See the examples collected in Pollock and Maitland, I. 257. See also
in _Rotuli de oblatis et finibus_, 107, how in 1200 Ralph de Bradel
offered John 40 marks and a palfrey to be relieved of “the custody of
the work of the castle of Grimsby.”

Footnote 691:

Cf. _supra_, p. 70.

Footnote 692:

_De feodo pro quo fecit servicium in exercitu._ This variation in the
charter of 1217 seems to have escaped Dr. Stubbs’ attention. See
_Select Charters_, 346.

CHAPTER THIRTY.

Nullus vicecomes, vel ballivus noster, vel aliquis alius, capiat equos
vel carectas alicujus liberi hominis pro cariagio faciendo, nisi de
voluntate ipsius liberi hominis.

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.

The Charter here returned to the subject of purveyance, one branch of
which it practically abolished, except as affecting villeins. No carts
or horses belonging to a freeman were to be requisitioned by any sheriff
or bailiff for the use of the Crown without the owner’s consent; that is
to say, they could not be requisitioned at all. The clause, however, was
carefully limited to freemen; the inference is plain, that the horses
and implements of villeins were left at the disposal of the Crown
without leave asked or price paid for their use. The relative chapter of
the reissue of 1216 practically restored this branch of purveyance;
consent of the owner, even when a freeman, need not be obtained,
provided hire was paid at the rates sanctioned by ancient custom. Those
rates, however, were definitely stated, namely, 10d. _per diem_ for a
cart with two horses, and 1s. 2d. for one with three.[693] Thus the
prerogative, though restored, was not to be abused.

-----

Footnote 693:

The rate fixed by 13 Charles II. c. 8, for the hire of carts or
carriages requisitioned by the king, was 6d. per mile. This hire
included six oxen, or alternatively two horses and four oxen, to each
vehicle.

-----

In 1217 it was again slightly restricted in favour of the upper classes.
No demesne cart of any “parson” (_ecclesiastica persona_), or knight, or
lady, could be requisitioned by the bailiffs. The “demesne” carts were,
of course, those that belonged to the owner of the manor as opposed to
the carts of the villeins. Here again we have evidence of care to make
it clear, if not that villeins were to have no part or parcel in the
benefits of the great Charter, at least that their rights, if they had
any, could not stand against the more important rights of the Crown.
Yeomen and small freeholders were also left exposed to this annoying
form of interference. Abuses continued. Purveyors would occasionally lay
hands on all available horses and carts in the countryside—far more than
they required—choosing perhaps the season of harvest or some equally
busy time. The owners, who urgently required them for their own
purposes, would pay ransom money to regain possession. Edward I. enacted
that perpetrators of such deeds should be “grievously punished by the
marshals,” if they were members of his household, and therefore amenable
to the summary jurisdiction of his domestic tribunal, or, if not
members, then they should pay treble damages and suffer imprisonment for
forty days.[694]

-----

Footnote 694:

See 3 Edward I. c. 32.

CHAPTER THIRTY-ONE.

Nec nos nec ballivi nostri capiemus alienum boscum ad castra, vel alia
agenda nostra, nisi per voluntatem ipsius cujus boscus ille fuerit.

Neither we nor our bailiffs shall take, for our castles or for any
other work of ours, wood which is not ours, against the will of the
owner of that wood.

Purveyance of timber growing elsewhere than on royal estates is here
prohibited in absolute terms. In marked contrast with the limited
restrictions placed upon other branches of purveyance, this branch is
taken away, not merely from local officials, but from the king
himself.[695] There was an obvious reason for greater stringency in this
case: the king’s own extensive demesne woods furnished timber in
abundance, whether for building purposes or for firewood, leaving him no
excuse for taking, especially if for nothing, the trees of other people.

-----

Footnote 695:

Cf. Sir James Ramsay, _Angevin Empire_, p. 476, who considers that
chapters 28 and 30, in the branches of prerogative with which they
respectively deal, "leave the king’s personal right open."

-----

The purveyors of James I., shortly after his accession, transgressed
this provision of Magna Carta by requisitioning timber for repairing the
fortifications of Calais. A decision against the Crown was given by the
Barons of Exchequer in the second year of James’s reign, and a
proclamation was issued, bearing date 23rd April, 1607, disclaiming any
right to such a prerogative. The guilty purveyors were brought before
the Star Chamber.[696]

-----

Footnote 696:

See Coke, _Second Institute_, 36.

CHAPTER THIRTY-TWO.

Nos non tenebimus terras illorum qui convicti fuerint de felonia, nisi
per unum annum et unum diem, et tunc reddantur terre dominis feodorum.

We will not retain beyond one year and one day, the lands of those who
have been convicted of felony, and the lands shall thereafter be
handed over to the lords of the fiefs.

I. _The Crown’s Claim to the Property of Felons._ The Crown had
gradually established certain rights, not too clearly defined, in the
property of all criminals formally indicted and sentenced for felony.
John, here as elsewhere, took full advantage of the vagueness of the law
to stretch prerogative to its utmost limit. Magna Carta, therefore,
attempted to define the exact boundaries of his rights. The old
customary law seems invariably to have given the chattels of a condemned
man to the owner of the court which tried him, and the desire for such
perquisites must have created an unfortunate bias against the accused.
It was not possible, however, to adopt so simple a rule with regard to
the real estate of felons, for this was claimed as escheat by the feudal
lord from whom the lands were held. Custom gave the land of a felon to
his feudal lord, and his chattels to the lord who tried him. The Crown
gradually encroached on the rights of both, claiming the real estate of
felons, as against mesne lords, and their personal estate, as against
the lords who had jurisdiction.

(1) _The felon’s lands._ No difficulty arose when Crown tenants were
convicted, since there the king was lord of the fief as well as lord
paramount, and claimed the whole lands as escheat. When the condemned
man was the tenant of a mesne lord, however, a conflict of interests
occurred, and here a distinction, which gradually became hard and fast,
was drawn between treason and felony.[697] Treason was an offence
against the person of the sovereign, and it was probably on this ground
that the king made good his claim to seize as forfeit the entire estate,
real and personal, of every one condemned to a traitor’s death. With
regard to ordinary felons, what looks like a compromise was arrived at.
The king secured the right to lay waste the lands in question and to
appropriate everything he could find there during the space of a year
and a day; after which period he was bound to hand over the freehold
thus devastated to the lord who claimed the escheat. Such was the custom
during the reign of Henry II. as described by Glanvill, who makes it
perfectly clear that before the lands were given up at the expiration of
the year, the houses were thrown down and the trees rooted up, thus
purging away the taint of crime and enriching the exchequer with the
price of the timber and building materials.[698] The exercise of this
right of waste inflicted upon the lord of the escheat an amount of
damage out of all proportion to the benefit it brought to the king. The
lord, when at last he entered into possession of the escheated lands,
found a desert, not a prosperous manor.[699]

-----

Footnote 697:

Pollock and Maitland, II. 500, consider that the present chapter had a
distinct influence in accentuating this twofold classification of
crimes.

Footnote 698:

Glanvill, VII. c. 17. Cf. Bracton, _folio_ 129, for a graphic
description of “waste,” which included the destruction of gardens, the
ploughing up of meadow land, and the uprooting of woods.

Footnote 699:

Is it possible that the origin of “year and waste” can be traced to
the difficulty of agreeing on a definition of “real” and “personal”
estate respectively? The Crown would claim everything it could as
"chattels"—a year’s crops and everything above the ground.

-----

Coke has attempted to give a more restricted explanation of the Crown’s
rights in this respect, maintaining that the “year and day” was not an
addition to, but a substitute for, the earlier right of “waste,” that
the king renounced his barbarous claims in return for the undisputed
enjoyment of the ordinary produce for one year only, and agreed, in
return for this, to hand over the land with all buildings and
appurtenances intact.[700] The authorities he cites, however, are
inconclusive, and the weight of evidence on the other side leaves little
room for doubt. Not only does the phrase “year day _and_ waste” commonly
used, create a strong presumption; but Glanvill’s words in speaking of
the earlier practice are quite free from ambiguity, while the document
known as the _Praerogativa Regis_ is equally explicit for a period long
after Magna Carta.[701] Waste, indeed, was a question of degree, and the
Crown was not likely to be scrupulous in regard to felons’ lands, when
it allowed wanton destruction even of Crown fiefs held in honourable
wardship.[702] A year was by no means too long for a thorough exercise
of the right of waste.

-----

Footnote 700:

_Second Institute_, p. 36.

Footnote 701:

See Pollock and Maitland, I. 316. “The apocryphal statute
_praerogativa regis_ which may represent the practice of the earlier
years of Edward I.” Bracton (_folio_ 129) while stating that the Crown
claimed both, seems to doubt the legality of the claim.

Footnote 702:

Cf. _supra_, pp. 244-6.

-----

Wide as were the legal rights of the Crown, John extended them
illegally. When his officers had once obtained a footing in the felon’s
land, they refused to surrender it to the rightful lord after the year
and day had expired. In 1205, Thomas de Aula paid 40 marks and a palfrey
to get what he ought to have had for nothing, namely the lands escheated
to him through his tenant’s felony.[703] Magna Carta prohibited such
abuses for the future; prompt evacuation must henceforth take place when
the year was over; and this settled the law for centuries.[704] The
Crown long exercised its rights, thus limited, and Henry III. sometimes
sold his “year day and waste,” for considerable sums. Thus, in 1229
Geoffrey of Pomeroy was debited with 20 marks for the Crown’s rights in
the lands of William de Streete and for his corn and chattels. This sum
was afterwards discharged, however, on the ground that the king, induced
to change his mind, doubtless by a higher bid, had bestowed these rights
on another.[705]

-----

Footnote 703:

Such at least is the most probable explanation of an entry on the Pipe
Roll of 6 John (cited Madox, I. 488); although it is possible that
Thomas only bought in “the year day and waste.”

Footnote 704:

Magna Carta is peculiar in speaking of year and day, without any
reference to waste. If it meant to abolish “waste” it ought to have
been more explicit. Later records speak of “_annum et vastum_,” _e.g._
the _Memoranda_ Roll, 42 Henry III. (cited Madox, I. 315), relates how
60 marks were due as the price of the “year and waste” of a mill, the
owner of which had been hanged.

Footnote 705:

_Pipe Roll_, 13 Henry III., cited Madox, I. 347. In Kent, lands held
in gavelkind were exempt alike from the lord’s escheat and the king’s
waste, according to the maxim “The father to the bough, the son to the
plough.” See, _e.g._ _praerogativa regis_, c. 16.

-----

(2) _The felon’s chattels._ From an early date the king enjoyed, like
other owners of courts, the right to the goods of the offenders he
condemned. When Henry II. reorganized the entire system of criminal
justice, and formulated, in the Assizes of Clarendon and Northampton, a
scheme whereby all grave offenders should be formally indicted, and
thereafter reserved for the coming of his own justices, he established
what was practically a royal monopoly of jurisdiction over felons; and
this logically implied a monopoly over their chattels as well—an
inference confirmed by the express terms of article five of the earlier
Assize. As the list of “pleas of the Crown,” which is in this connection
identical with the list of “felonies,” grew longer, so this branch of
royal revenue increased proportionately at the expense of the private
owners of “courts leet.” Even in the ten years between the criminal
codes of 1166 and 1176, two new offences were added to the list, forgery
and arson. The goods of all outlaws and fugitives from justice likewise
fell to the exchequer—the sheriff who seized them being responsible for
their appraised value.[706]

-----

Footnote 706:

Madox. I. 344-8, cites from the _Pipe Rolls_ many examples.

-----

The magnates in 1215 made no attempt to interfere with this branch of
administration, tacitly acquiescing in Henry II.’s encroachments on
their ancestors’ criminal jurisdictions and perquisites. Under Henry
III. and Edward I. the forfeited goods of felons continued to form a
valuable source of revenue. In 1290 the widow of a man who had committed
suicide, and therefore incurred forfeit as a _felo de se_, bought in his
goods and chattels for £300, a high price, in addition to which the
Crown specially reserved its “year day and waste.”[707]

-----

Footnote 707:

This case is cited by Madox, I. 347, from 18 Edward I.

-----

II. _Indictment, Conviction, and Attainder._ The Crown could not
appropriate the property of men merely suspected of crime, however
strong might be the presumption of guilt. Mere accusation was not
enough; a formal judgment was required. The Charter refers to the lands
of a “convicted” offender, and conviction must be distinguished from
indictment on the one hand, and from attainder on the other; since these
formed three stages in the procedure for determining guilt.

(1) _Indictment._ It has already been shown[708] how Henry of Anjou
tried to substitute, wherever possible, indictment by a jury for private
appeal in criminal suits. The Assize of Clarendon authorized such
indictments to be taken before sheriffs, and we learn from Bracton that
immediately the formal accusation had been made the sheriff became
responsible for the safety of the accused man’s property, both real and
personal. With the help of the coroners and of lawful men of the
neighbourhood he must have the chattels appraised and inventoried, and
hold them in suspense until the “trial,” providing therefrom in the
interval “estovers,” that is, sufficient sustenance for the accused and
his family.[709]

-----

Footnote 708:

_Supra_, p. 108.

Footnote 709:

See Bracton, II. _folio_ 123, and _folio_ 137.

-----

If the prisoner was acquitted or died before conviction, then the lands
and chattels were restored to him or to his relatives, the Crown taking
nothing. Reginald of Cornhill, sheriff of Kent, was discharged in 1201
from liability for the appraised value of the goods of a man who, after
indictment for the burning of a house, had died in gaol _non convictus_.
As the _Pipe Roll_ clearly states, his chattels did not pertain to the
king.[710]

-----

Footnote 710:

_Pipe Roll_, 2 John, cited Madox, I. 348.

-----

(2) _Conviction._ If the sheriff presided over all preliminary procedure
connected with indictment, only the justices could “try” the plea, that
is, give sentence according to success or failure in the test appointed
for the accused man to perform.[711] Prior to 1215 the usual test, in
accordance with the Assize of Clarendon, was the ordeal of water in the
ordinary case, or of the red-hot iron in the case of men of high rank,
or of women. If the suspected man failed, sentence was a mere formality;
he had “convicted” himself of the felony. As a consequence of the
condemnation of ordeal by the Lateran Council of 1215, the verdict of
guilty pronounced by what was virtually a petty jury, became the normal
“test” which branded an offender as _convictus_. This was long looked on
as an innovation, and accordingly the law refused to compel the accused,
against his will, to trust his fate to this new form of trial. He might
refuse to “put himself upon his country,” and by thus “standing mute,”
as the phrase was, make his own “conviction” impossible, saving himself
from punishment and depriving the king of his chattels and “year and
day.” For centuries those responsible shrank from the obvious course of
treating silence as equivalent to a plea of guilty; but while liberty to
refuse to submit to a jury’s verdict was theoretically recognized,
barbarous measures were in reality adopted to compel consent. The
Statute of Westminster in 1275[712] directed that all who refused should
be imprisoned _en le prison forte et dure_. The object seems to have
been to ensure that obstinate offenders should not escape altogether
unpunished, although they saved their property by avoiding a technical
conviction. This statutory authority for strict confinement, however,
was very liberally interpreted by the agents of the Crown, who treated
it as a legal warrant for revolting cruelties, aimed at compelling the
stubborn to put themselves upon a jury. Food and drink were virtually
denied to them, a little mouldy bread and a mouthful of impure water
only being allowed them upon alternate days; and at a later date the
prisoner was slowly crushed to death under great weights “as heavy, yea
heavier than he can bear.” Brave men, guilty, or mayhap innocent, but
suspicious of a corrupt jury, preferred thus to die in torments, that
they might save to their wives and children the property which would
upon conviction have fallen to the Crown. The fiction was carefully
maintained that the victim of such barbarous treatment was not subjected
to “torture,” always illegal at common law, but merely to _peine forte
et dure_, a perfectly legal method of persuasion under the Statute of
1275. This procedure was not abolished until 1772; then only was an
accused man for the first time deprived of his right to "have his
law"—his claim to ordeal as the old method of proving his innocence.
Until that date then, a jury’s verdict was treated as though it were
still a new-fangled and unwarranted form of “test” usurping the place of
the ordeal, although the latter had been virtually abolished early in
the thirteenth century.[713]

-----

Footnote 711:

Cf. _supra_, c. 24.

Footnote 712:

3 Edward I. c. 12.

Footnote 713:

The Act 12 George III. c. 20, made standing mute equivalent to a plea
of _guilty_. A later act, 7 and 8 George IV. c. 28, made it equivalent
to a plea of _not guilty_. See Stephen, _Hist. Crim. Law_, I. 298.

-----

(3) _Attainder._ Coke in commenting on this passage draws a further
distinction between “conviction” which resulted immediately either from
a confession or from a verdict of guilty, and “attainder” which required
in addition a formal sentence by the judge. In his age, apparently, it
was the sentence of attaint which implied the forfeiture; looking as
usual at Magna Carta through seventeenth-century glasses, he seems
surprised to find “convicted” used where he would have written
“attainted.” Yet this distinction, if recognized at all in 1215, must
have been quite immaterial then. It was under the Tudor sovereigns that
the doctrine of the penal effects of attainder was fully elaborated.
When sentence was passed on a felon, a blight as it were fell
immediately upon him: his blood was henceforth in the eye of the law
impure, and his kindred could inherit nothing that was his or that came
through him. No one could be treated as a blood relation of one whose
entire blood was tainted; and the Crown naturally reaped the
profit.[714]

-----

Footnote 714:

This fiction of corrupt blood was apparently based in part on a false
derivation of the word “attainder.” See _Oxford English Dictionary_.

-----

A series of statutes of the nineteenth century modified the harshness
with which this rule bore on the felon’s innocent relations;[715] and
finally the Forfeiture Act of 1870[716] abolished “corruption of blood”
and deprived the Crown completely of all interest in the estates of
felons, alike in escheats and in chattels. Thus the word “attainted” has
become practically obsolete, and the distinction insisted on by Coke has
ceased to have any importance in modern law. A criminal who is
fulfilling the term of his sentence is known, not as a man attainted,
but simply as a “convict,” the same word as was used in Magna Carta.

-----

Footnote 715:

_E.g._ 54 George III. c. 145, and 3 and 4 William IV. c. 106, s. 10.

Footnote 716:

33 and 34 Victoria, c. 23.

CHAPTER THIRTY-THREE.

Omnes kydelli de cetero deponantur penitus de Tamisia, et de Medewaye,
et per totam Angliam, nisi per costeram maris.

All kydells for the future shall be removed altogether from Thames and
Medway, and throughout all England, except upon the sea coast.

The object of this provision is open to no reasonable grounds of doubt;
it was intended to remove from rivers all obstacles likely to interfere
with navigation. The full importance of such a measure can only be
understood when the deplorable condition of the few roads which existed
in the Middle Ages is kept in view. The water-ways were the great
avenues of commerce; when these were blocked, the townsmen and traders
suffered loss, while those who depended on them for their necessaries,
comforts, and luxuries, shared in the general inconvenience. Magna Carta
intervened in the interests of all classes, and demanded the immediate
removal of obstructions which interrupted inland traffic. Only one class
of impediments indeed was mentioned, “kydells” (or fish-weirs), not
because of the purposes to which these were put, but because they were
the form of obstruction which called for repressive measures at the
moment. This word, whatever narrower technical meaning it may have borne
in later days, seems to have been used by the framers of Magna Carta in
a wide general sense, as applying to all fixed and bulky contrivances or
“engines” intended to catch fish, and likely to interfere with the free
passage of boats.[717]

-----

Footnote 717:

The _Oxford English Dictionary_ defines it as “a dam, weir, or barrier
in a river, having an opening in it fitted with nets or other
appliances for catching fish,” and also as “an arrangement of
stake-nets on the sea-beach for the same purpose.”

It has been gratuitously assumed that the motive for prohibiting these
“kydells” must have been of a similar kind to the motive for
constructing them; and that therefore the object of the present chapter
was to prevent the Crown or others from acquiring a monopoly of rights
of fishing to the exclusion of the public. Law courts and writers on
jurisprudence for many centuries uniformly endorsed this mistaken view,
and treated Magna Carta as an absolute prohibition of the creation of
“several” (or exclusive) fisheries in tidal waters.[718] Although this
legal doctrine has been frequently and authoritatively enunciated, it
rests undoubtedly on a historical misconception. The Great Charter
sought to protect freedom of navigation, not freedom of fishing; and
this is obvious from the last words of the chapter: kydells are to be
removed from Thames and Medway and throughout all England “_except upon
the sea-coast_.” It would have been a manifest absurdity to allow the
creation of monopolies of taking fish in the open seas, while insisting
on perfect freedom of fishing in rivers, the banks of which were private
property. The sense is quite clear: no objection was taken to “kydells,”
whatever they might be, so long as they did not interfere with
navigation.

-----

Footnote 718:

Blackstone, _Commentaries_, IV. 424, declared that this chapter
“prohibited for the future the grants of exclusive fisheries.” Cf.
_e.g._ Thomson, _Magna Charta_, 214, and Norgate, _John Lackland_,
217. See also Malcolmson _v._ O’Dea (1862), 10 _H. of L. Cas._, 593,
and Neill _v._ Duke of Devonshire (1882), 8 App. Ca. at p. 179,—cases
cited in Moore, _History and Law of Fisheries_, p. 13, where the
fallacy is exposed.

-----

The erroneous view, however, had much to excuse it, and acquired
plausibility from the circumstance that the destruction of obstacles to
the free passage of boats incidentally secured also free passage for
salmon and other migratory fish; and that _later_ statutes, when
legislative motives had become more complicated, were sometimes passed
with both of these objects in view. The change is well illustrated by a
comparison of the words of two statutes of 1350 and of 1472
respectively. The first of these repeats the substance of this chapter
of Magna Carta, and thus explains its object:—“Whereas the common
passage of boats and ships in the great rivers of England be oftentimes
annoyed by the inhancing of gorces, mills, weirs, stanks, stakes, and
kydells.”[719] Here there is no allusion to fish or rights of fishing.
The later act, while confirming, under penalties, previous statutes for
the suppression of weirs, not only states its own intention as twofold,
namely, to protect navigation of rivers, and “also in safeguard of all
the fry of fish spawned within the same,” but retrospectively and
unwarrantably attributes a like double motive to Magna Carta.[720]

-----

Footnote 719:

25 Edward III., stat. 3, c. 4.

Footnote 720:

12 Edward IV. c. 7. Apparently the earliest statute which refers to
weirs as causing injury to fish was one passed in 1402, namely, 4
Henry IV. c. 11, see Moore, _Fisheries_, p. 175.

-----

So far as the Thames and Medway were concerned, this provision contained
nothing new. To the Londoners, indeed, the keeping open of their river
for trade was a matter of vital importance. The right to destroy all
_kydelli_ in the Thames and Medway had been purchased from Richard I.
for 1500 marks, and a further sum had been paid to John to have this
confirmed. The charter of Richard I. is dated 14th July, 1197; and that
of John, 17th June, 1199. Each king declared, in words practically
identical, that Hubert Walter, Archbishop of Canterbury, and others had
pointed out “that great detriment and discommodity hath grown to our
said city of London, and also to the said realm by occasion of the said
kydells.” Accordingly each charter declared that the king has “granted
and steadfastly commanded that all kydells that are in the Thames be
removed wheresoever they shall be within the Thames; also we have
quit-claimed all that which the Warden of our Tower of London was wont
yearly to receive from the said kydells. Wherefore we will and
steadfastly command that no warden of the said Tower, at any time
hereafter, shall exact anything of any one, neither molest nor burden
nor make any demand of any person by reason of the said kydells.” John’s
charter of 1199 went further than that of Richard, making it clear that
the prohibition referred to the Medway as well as to the Thames, and
granting the right to inflict a penalty of £10 upon anyone infringing
its provisions.[721]

-----

Footnote 721:

It seems to have been generally assumed that these charters conferred
positive as well as negative privileges on the citizens of London;
that not merely were obstructions to navigation thereby prohibited in
their interests, but that wide rights of administration and
jurisdiction over the waters of the Thames were conferred on the city
authorities (rights which previous to 1197 had been exercised, it is
assumed, by the Constable of the Tower of London). See Noorthouck,
_New History of London_ (1773) p. 36, and Luffman, _Charters of
London_ (1793) p. 13. The latter says of Richard’s grant in 1197: “By
this charter the citizens became conservators of the river Thames.”
The _Patent Rolls_ of 33 Edward I.; 5 Edward III.; 8 Edward III.,
_etc._; contain Commissions of Conservancy. See Moore, _ibid._, p.
176. In 1393 the statute of 17 Richard II. c. 9 granted authority to
the Mayor of London to regulate weirs likely to destroy fish, and
generally to “conserve” the Thames from Staines downwards, along with
the Medway.

-----

Magna Carta merely confirmed, and extended to all rivers, a prohibition
already secured by the Londoners specially for their own river. The
provision was repeated in the reissues of Henry III. The citizens,
however, did not rest content with a clause in a general enactment, but
purchased for 5000 marks three new charters exclusively in their own
favour. One of these, dealing with kydells in Thames and Medway, was
issued by Henry on 18th February, 1227, in terms almost identical with
those of Richard and John.[722]

-----

Footnote 722:

See _Rotuli Cartarum_, under the year 11 Henry III.

CHAPTER THIRTY-FOUR.

Breve quod vocatur _Precipe_ de cetero non fiat alicui de aliquo
tenemento unde liber homo amittere possit curiam suam.

The writ which is called _praecipe_ shall not for the future be issued
to anyone, concerning any tenement whereby a freeman may lose his
court.

In extorting from John a solemn promise to restrict the use of the
particular writ here referred to, the barons gained something of
infinitely greater value than a petty reform of court procedure; they
committed their enemy to a complete reversal of a line of policy
vigorously and consistently pursued for at least half a century. The
process by which the jurisdiction of the king’s courts was steadily
undermining that of the feudal courts was now to be suddenly arrested.
Magna Carta by this apparently inoffensive clause was grappling in
reality with an urgent political problem of the day, fraught with
tremendous practical issues alike for king and barons. This can only be
understood in connection with the technical details on which it hinges.

I. _Royal Writs and the Feudal Jurisdictions._ The class of writs,
called from their initial word “Writs _praecipe_,” was a large one, and
freely used by the Crown for issuing peremptory orders of various kinds
to its officers and others. This provision of Magna Carta had special
reference to one type of these writs only, the so-called _praecipe quod
reddat_.[723] These were intended to inaugurate, before the king’s
justices, pleas for determining the ownership of property either by
battle or by grand assize—preferably the latter. They were called “Writs
of Right,” because they treated of questions of title, not merely
questions of possession.

-----

Footnote 723:

The numerous varieties of writs _praecipe_ are arranged by Coke
(_Second Institute_, p. 40) in three groups, according to the nature
of the orders they were intended to convey, viz.:—(a) _praecipe quod
reddat_; (b) _quod permittat_; and (c) _quod faciat_. Those specially
referred to in this chapter are of the first type.

-----

The form of a _praecipe quod reddat_, as actually issued from the
Chancery of Henry II. (who invented it), is given by Glanvill, and its
terms illustrate the insidious methods by which the Crown encroached on
feudal jurisdictions.[724] The writ was directed to the sheriff, and
began bluntly:—“Command” (_praecipe_) A. “to give back” (_quod reddat_)
to B. a piece of ground there specified, or alternatively, “to explain
why he had not done so” (_ostensurus quare non fecerit_). The real
object does not, however, appear upon the surface. It was by no means
intended that the man to whom the command was issued, should abandon his
claim without discussion. He would naturally take the alternative
allowed him, namely, appear before the king’s justices and there “show
cause” why he had not obeyed the order, by proving (if he could) a
better title to the property in dispute than that alleged by the rival
claimant. The writ, which on the surface reads merely as a summary and
final command to hand over the estate to another, is really an “original
writ” commencing a litigation in the king’s court. One important effect
of its issue was that all proceedings instituted in inferior tribunals
must immediately stop.

-----

Footnote 724:

The writ ran as follows:—_Rex vicecomiti salutem, Praecipe A. quod
sine dilatione reddat B. unam hidam terrae in villa illa, unde idem B.
queritur quod praedictus A. ei deforceat: et nisi fecerit, summone eum
per bonos summonitores quod sit ibi coram me vel Justiciariis meis in
crastino post octabas clausi Paschae apud locum illum, ostensurus
quare non fecerit. Et habeas ibi summonitores et hoc breve. Teste
Ranulpho de Glanvilla apud Clarendon._ See Glanvill, I. c. 6.

-----

The feudal lord, in whose court baron the plea would naturally have been
decided, was thus robbed by the king of his jurisdiction. With it, he
lost also authority over his tenants, and numerous fees and perquisites.
The writ _praecipe_ was thus mainly an ingenious device for “evoking” a
particular cause from the manorial court to the king’s court.[725]

-----

Footnote 725:

Cf. Stubbs, _Const. Hist._, I. 576.

-----

Henry II., in inventing or systematizing the legal procedure known as
“the writ process,” because its leading feature was that it forbade any
action to be begun without a royal writ, had two objects in view. While
reforming by its instrumentality the entire administration of justice in
England, the king hoped by the same means, to destroy gradually the
feudal privileges of his magnates. He intended, step by step, to draw
into his own courts all pleas relating to land. Questions of property
were to be tried before his justices, by combat or, at the defendant’s
option, by the grand assize; questions of possession (without any
option) by the appropriate petty assize. The barons showed no desire to
dispute the Crown’s assumption of a monopoly over the petty assizes;
indeed they cordially acquiesced in this by the terms of chapter 18 of
the Charter. The grand assize was another matter; they refused to be
robbed of their right to determine, in their own courts baron,
proprietary actions between their own tenants. Indeed, for such
wholesale extension of the king’s jurisdiction over pleas of land, Henry
II. had absolutely no precedent. He had made the Crown strong and then
used its power for his own aggrandizement. The king’s courts had
increased their authority, as a distinguished American historian has
expressed it, “by direct usurpation, in derogation of the rights of the
popular courts and manorial franchises, upon the sole authority of the
king.”[726]

-----

Footnote 726:

See Bigelow, _Hist. of Procedure_, 78. Glanvill, read between the
lines, contains admissions which support this view. Friend of
prerogative as he was, he shows consciousness of a distinction between
the proper and improper use of the royal jurisdiction. Thus in I. c.
3, he speaks of the king’s courts as normally dealing with “pleas of
baronies” (_i.e._ litigations concerning Crown fiefs); in I. c. 5, he
speaks of what he evidently considers an abnormal expansion of this
jurisdiction to any plea anent a free tenement or fief, if the Crown
so desired,—that is, the Crown claimed an option, in circumstances
admitted to be abnormal, of deciding pleas as to fiefs held under
mesne lords. This distinction is identical with that on which the
present chapter of Magna Carta is based.

-----

Now, the chief instrument devised by Henry for effecting such
usurpations was precisely this particular form of the writ _praecipe_
(or Writ of Right).[727] Tenants whose titles were challenged gladly
purchased such writs, as the only way to escape trial by combat; and
John frequently issued them to the prejudice of feudal lords, whose
jurisdiction was thus curtailed. The barons in 1215 considered this a
grievance; and Magna Carta in demanding its redress deliberately
attempted to arrest the process of royal usurpation. The tide must be
turned back; the system of feudal justice, now fast becoming obsolete,
must in its entirety be revived. Each freeman or baron must be left
without competition as the sole source of justice to his own tenants in
all pleas of land, unmolested by these new-fangled writs of right. It
was not intended, of course, to abolish completely the extensive and
useful class of writs _praecipe_; but merely to prevent the Crown using
them as an engine of encroachment upon manorial jurisdictions.[728] The
king might keep his own court and issue writs to his own tenants; but
let him respect the courts of others. For the future, such writs must
not be issued “concerning any tenement whereby a freeman may lose his
court.” Writs _praecipe_ might be freely used for any other purpose, but
not for this. This one purpose, however, was exactly what had specially
recommended it to the great king who had invented it.

-----

Footnote 727:

The normal procedure seems to have included the following steps: (_a_)
a claimant in the court of the lord of the fief offers to prove by
battle a better title than the tenant in possession; (_b_) the tenant
applies to the king to have the issue decided by grand assize; (_c_) a
writ _praecipe quod reddat_ is then issued in the form given by
Glanvill, I. c. 6, (already cited) virtually forbidding the claimant
to proceed elsewhere than before the king; (_d_) a second writ follows
in the form given by Glanvill, II. c. 8, forbidding the lord “to hold
in his court the plea between the litigants M. and R. because M. the
tenant has put himself upon my assize.” Cf. _supra_, c. 18.

Footnote 728:

Cf. Bracton, folio 281. See also Bracton’s _Note Book_, case 1215,
where a certain writ _praecipe_ was held not to be struck at by Magna
Carta, since it did not take any man’s court away.

-----

The present chapter must, therefore, be regarded as containing one of
the most reactionary provisions of the entire Charter. The barons had,
at last, succeeded in compelling John to promise a complete reversal of
a central part of the deliberate policy of his father.

Here, then, under the guise of a small change in legal procedure, was
concealed a notable triumph of feudalism over the centralizing policy of
the monarchy—a backward step, which, if given full effect to, might have
ushered in a second era of feudal turbulence such as had disgraced the
reign of Stephen. We are told on high authority that John’s
acknowledgment of "the claims of the feudal lord to hold a court which
shall enjoy an exclusive competence in proprietary actions"—was one
which “Henry II. would hardly have been forced into.”[729] That may well
be; but John had already more than once rejected this proposal with
violence. In 1215, he could no longer strive against the inevitable, and
agreed under compulsion to provisions which he had no intention to keep.
The concession, although insincere, was nevertheless an important one.
The substance of chapter 34 was repeated with some trivial verbal
alterations in all future issues of Magna Carta.[730]

-----

Footnote 729:

Pollock and Maitland, I 151.

Footnote 730:

The version of 1216 speaks of a “free tenement,” where that of 1215
spoke merely of a “tenement.” The addition makes no change, since in
no case could the king’s courts try pleas affecting the villeins of
mesne lords. Perhaps the object of the addition is to make it clear
that there was no interference with the king’s rights over the
holdings of his own villeins on royal demesne.

-----

II. _Influence of this Provision on later Legal Development._ One
important question still remains: Was this provision observed in
practice? The answer is partly Yes, but chiefly No. Its letter was
stringently enforced; but its spirit was evaded. (1) The Chancery, in
obedience to Magna Carta, ceased to issue this particular form of writ
in such a manner as to cause a freeman “to lose his court.” It was still
issued to Crown tenants; but strictly denied to all under-tenants, who
were thus left to find redress at the feudal court of the magnate from
whom they held their land.[731] The measure thus forced on the Crown in
the selfish interests of the baronage inflicted hardship on tenants of
mesne lords, in whose faces the doors of the king’s tribunals, opened to
them by Henry II., were once more closed in all pleas touching their
freeholds. In such cases the court baron of their lord was now their
only source of justice, and in that court they could not get the benefit
of the improved methods of royal procedure. In particular, the grand
assize was a royal monopoly. The magnates, indeed, desired to adopt it,
but this was rendered difficult by an obstacle which the Crown made the
most of.[732] They had difficulty in getting together twelve knights
willing to act as jurors; and they could not force them to give a sworn
verdict against their will. The king might compel; but a mesne lord
could only persuade. Men of the required status objected to the waste of
time, and dreaded the danger of being punished for false verdicts,
inseparable from the duty of serving on a grand assize. Whatever hopes
the barons may have entertained of overcoming such difficulties were
disappointed. In 1259 the Provisions of Westminster declared that
freeholders should not be compelled to swear against their will "since
no one can make them do this without the King’s warrant."[733] It was
the deliberate policy of Edward I. to exaggerate all such difficulties,
putting every obstacle in the way of private courts, until he reduced
their jurisdictions to sinecures.[734]

-----

Footnote 731:

The writs, thus restricted so that only tenants _in capite_ could
obtain them, were thereafter known as writs _praecipe in capite_.
Under that name the writ appears in Coke’s version of the charter of
Henry III. (_Second Institute_, p. 38), and in the translation given
in the _Statutes at Large_ of the reissue of 1225. There is no
authority in any text of Magna Carta for the addition of the words _in
capite_, and the explanation of their presence in these versions must
be sought in the tendency of lawyers in an age long subsequent to 1215
to re-edit Magna Carta in the technical language of their own day.
Coke emphasised the restriction of this remedy to Crown tenants. “No
man ought to have this writ out of the Chancery upon a suggestion, but
oath must be made, before the granting thereof, that the land is
holden of the king _in capite_,” (p. 38), and he illustrates what he
says by reference to two cases drawn from the reign of Edward I.

Footnote 732:

Such an attempt seems to have been made in 1207 by Walter de Lacy,
Earl of Ulster, who set up in his Irish fief what is described as
_nova assisa_, against which John protested. See _Rot. Pat._, I. 72,
for writ dated 23rd May, 1207. In one case at least, exceptional it is
true, John acquiesced in grand assizes being held in feudal courts. On
4th May, 1201, he granted licence to Hubert Walter (and his
successors) to hold them for his tenants in gavelkind, a tenure
peculiar to Kent. See _New Rymer_, I. 83.

Footnote 733:

See article 18 (_Select Charters_, p. 404). Other articles show a
similar strong bias against seignorial justice. Cf. chapter 29 of the
Petition of the Barons (_Select Charters_, 386), and the comment of
Pollock and Maitland, I. 182: “The voice of the nation, or what made
itself heard as such, no longer, as in 1215, demanded protection for
the seignorial courts.”

Footnote 734:

There was, however, a partially successful attempt made to revive
feudal jurisdictions as late as the reign of Edward III. See Stubbs,
_Const. Hist._, II. 638-9.

(2) While the letter of Magna Carta was strictly kept, its spirit was
evaded. It was impossible to give loyal effect to an enactment which
went directly counter to the whole stream of progress. Manorial justice
was falling fast into disrepute and abeyance, while royal justice was
becoming more efficient and more popular, and was soon to rid itself of
all competitors and obtain a monopoly. Under-tenants, deprived of access
to the king’s court by the direct road of the writ _praecipe_, sought
other and more tortuous modes of entrance. Legal fictions were devised.
The great problem was how to evade Magna Carta without openly infringing
it. The king’s justices and would-be litigants in the king’s courts
formed a tacit alliance for this end, but had to proceed by slow and
wary steps, in the teeth of bitter opposition from the powerful owners
of seignorial courts. The process adopted consisted of a series of
formal changes in the technical procedure of the king’s courts. Its key
lies in the ingenious original (or originating) writs invented by Crown
lawyers, which really effected one thing while professing to effect
something quite different. These new writs were known as writs of entry
and came half-way between writs of right (or writs _praecipe_) and the
petty assizes; half-way between writs commencing actions dealing with
title (and therefore attacked by chapter 34 of Magna Carta) and writs
dealing with possession (and therefore welcomed by chapter 18). Writs of
entry were thus, from the point of view of the magnate with his private
court, wolves in sheep’s clothing. They professed to determine a
question of _possession_, but really decided a question of _ownership_.
At first the pleas to which they could be applied were few and special.
Steadily new forms of action were devised to cover almost every
conceivable case. The process of evolution was a long one, commencing
soon after 1215, and virtually concluding with chapter 29 of the Statute
of Marlborough, or rather with the liberal construction which Crown
lawyers placed upon that statute in the following reign.

Edward I., at the height of his power, and eager to set his house in
order, shrank from an open breach of the Great Charter, gladly adopting
subtle expedients to cheat mesne lords out of the rights secured to them
by the present chapter. In Edward’s reign, then, the legal machinery
invented for this purpose was brought to perfection, so that thereafter
no action relating to freehold was ever again tried in the courts baron
of the magnates. All such pleas were, in direct violation of the spirit
of Magna Carta, decided in the courts of the king.[735]

-----

Footnote 735:

Technical details are admirably given by Pollock and Maitland, II.
63-7. The whole family of writs were known as “writs of entry _sur
disseisin_”; and these were applied to still wider uses after 1267 on
the authority of the Statute of Marlborough, as “writs of entry _sur
disseisin_ on the _post_.” See also Maitland, Preface to _Sel. Pleas
in Manorial Courts_, p. lv.

-----

The claimant, then, had no need to infringe the prohibition against the
writ _praecipe_ when he could obtain another writ, equally effective,
under a different name. A writ of entry was, indeed, to a peaceable
plaintiff, infinitely preferable to a writ _praecipe_, which could only
be issued to one prepared to _offer_ battle, the option of accepting
lying with his adversary. Crown tenants, even, who could obtain the writ
_praecipe_, came to prefer the more modern substitute; and clause 34 of
Magna Carta was thereafter virtually obsolete.

One of the indirect effects of the clause was of a most unfortunate
nature. The necessity it created for effecting reforms by a tortuous
path did great and lasting harm to the form of English law. Legal
fictions have indeed their uses, by evading technical rules of law in
the interests of substantial justice. The price paid for this relief,
however, is usually a heavy one. Complicated procedures and underhand
expedients have to be invented, and these lead in turn to new legal
technicalities of a more irrational nature than the old ones. It would
have been better in the interests of scientific jurisprudence if so
desirable a result could have been effected in a more straightforward
manner. The authors of Magna Carta must bear the blame.[736]

-----

Footnote 736:

Cf. Pollock and Maitland, I. 151, and _Sel. Pleas in Manorial Courts_,
already cited.

CHAPTER THIRTY-FIVE.

Una mensura vini sit per totum regnum nostrum, et una mensura cervisie,
et una mensura bladi, scilicet quarterium Londonie, et una latitudo
pannorum tinctorum et russetorum et halbergectorum, scilicet due ulne
infra listas; de ponderibus autem sit ut de mensuris.

Let there be one measure of wine throughout our whole realm; and one
measure of ale; and one measure of corn, to wit, “the London quarter”;
and one width of cloth (whether dyed, or russet, or halberget), to
wit, two ells within the selvedges; of weights also let it be as of
measures.

This chapter re-enacted an important ordinance of Richard I., usually
known as the Assize of Measures, but sometimes as the Assize of Cloth.
That ordinance, the exact date of which is 20th November, 1197, was,
according to modern conceptions of the proper sphere of government,
partly commendable and partly ill-advised. It showed, on the one hand, a
praiseworthy desire to set up definite standards of weights and
measures, uniform throughout all parts of England. It strove thus to
overcome the serious inconvenience experienced by traders, who met with
varying standards as they moved with their wares from place to place.
What was of more importance, the assize sought to obviate also the
frauds frequently perpetrated upon buyers by unscrupulous merchants
under the shelter of ambiguous weights and measures. The London quarter
must, therefore be used everywhere for corn; and one measure for wine or
beer. So far good. On the other hand, the ordinance of Richard went much
further than modern ideas of _laissez faire_ would tolerate. In
particular, legitimate freedom of trade was interfered with by the cloth
regulations reported by Roger of Hoveden.[737] No cloth, he tells us,
was to be woven except of a uniform width, namely, “two ells within the
lists.”[738]

-----

Footnote 737:

R. Hoveden, IV. 33-4.

-----

Footnote 738:

At a later date cloth of an alternative standard width was also
legalized, viz., of one yard between the “lists.” Hence arose the
distinction between “broadcloth” (that is, cloth of two yards) and
“streits” (that is, narrow cloth of one yard). (See Statute I Richard
III. c. 8.) The word “broadcloth” has, long since, changed its
meaning, and now denotes material of superior quality, quite
irrespective of width. See _Oxford English Dictionary_, under
“Broadcloth.”

-----

Dyed cloths, it was provided, should be of equal quality through and
through, as well in the middle as at the outside. Merchants were
prohibited from darkening their windows by hanging up, to quote the
quaint language of the ordinance, “cloth whether red or black, or
shields (_scuta_) so as to deceive the sight of buyers seeking to choose
good cloth.” Coloured cloth was only to be sold in cities or important
boroughs. Here we have, apparently, a sumptuary law meant to ensure that
the lower classes went in modest grey attire. Six lawful men were to be
assigned to keep the Assize in each county and each important borough.
These custodians of measures must see that no goods were bought or sold
except according to the standards; imprison those found guilty of using
other measures, whether by their own admission or by failure in the
ordeal (_confessus vel convictus_); and seize the chattels of defaulters
for the king’s behoof. If the _custodes_ performed their duties
negligently they were to suffer amercement of their chattels.[739]
Richard’s Assize of Measures was supplemented in 1199 by John’s Assize
of Wine, which tried to regulate the price of wines of various
qualities,[740] an attempt not repeated in Magna Carta.

-----

Footnote 739:

Cf. _supra_, c. 20, for “amercements,” and _supra_, c. 24, for
“custodes” of pleas (or coroners).

Footnote 740:

See R. Hoveden, IV. 100.

-----

The same author who gives us the text of the ordinance of 1197 tells us
also that its terms were found to be too stringent, and had to be
frequently relaxed in practice.[741] This was done in 1201. The king’s
justices, we are told, wished to seize the cloth of certain merchants on
the ground that it was less than the legal width. They compromised,
however, by accepting a great sum of money “to the use of the king and
to the damage of many.” Thus Hoveden denounces what he regards as an
unlawful bargain between the justices and the traders for injuring
buyers by evading the strict letter of the ordinance.

-----

Footnote 741:

See Hoveden, IV. 172, and Stubbs, _Const. Hist._, I. 616.

-----

Many examples of evasion may be found in the _Pipe Rolls_ both before
and after Magna Carta. The justices, indeed, were usually more bent on
collecting fines for its breach than on enforcing the Assize. In 1203
two merchants of Worksop were amerced each in half a mark for selling
wine contrary to the Assize, while the custodians of measures of the
borough were also mulcted in one mark for performing their duty
negligently—an exact illustration of the words of the ordinance.[742] In
the same year a fine of one mark was imposed on certain merchants “for
stretching cloth,” in order, presumably, to bring it to the legal
width.[743] Merchants frequently paid heavy fines to escape the
ordinance altogether.[744]

-----

Footnote 742:

See _Pipe Roll_, 4 John, cited Madox, I. 566.

Footnote 743:

See _Ibid._

Footnote 744:

In 1203 the men of Worcester paid 100s. “_ut possint emere et vendere
pannos tinctos sicut solebant tempore Regis Henrici_”; and the men of
Bedford, Beverley, Norwich and other towns made similar payments. See
_Pipe Roll_, 4 John, cited Madox, I. 468-9.

-----

When the barons in 1215 insisted upon John enforcing his brother’s
ordinance in all its rigour, they took a step in their own interests as
buyers, and against the interests of the trade guilds as sellers.
Although this provision was repeated in all subsequent charters, it
seems never to have produced much effect. The difficulty of enforcing
such provisions in their strictness was great, and evasion continued.
One example may suffice. In the second year of Henry III.[745] the
citizens of London paid 40 marks that they might not be questioned for
selling cloth less than two yards in width. Here is an illustration of
the practice of the judges to which Hoveden had objected, and which
Magna Carta had apparently failed to put down. Sometimes, however, the
provisions of Richard’s Assize of Measures and of John’s Assize of Wine
were still enforced. In 1219 a Lincolnshire parson, with a liberal
conception of the scope of his parochial duties, had to pay 40s. for
wine sold _extra Assisam_.[746] Parsons, apparently, might engage in
trade, but only if they conformed to the usual regulations.

-----

Footnote 745:

See _Pipe Roll_, cited Madox, I. 509.

Footnote 746:

_Pipe Roll_, 3 Henry III., cited Madox, I. 567.

CHAPTER THIRTY-SIX.

Nichil detur vel capiatur de cetero pro brevi inquisicionis de vita vel
membris, sed gratis concedatur et non negetur.

Nothing in future shall be given or taken for a writ of inquisition of
life or limbs, but freely it shall be granted, and never denied.

This chapter has an important bearing upon trial by combat, and none at
all upon _habeas corpus_, to which it is often supposed to be closely
related. The particular writ upon which such emphasis is here laid had
been invented by Henry II. to obviate the judicial duel in certain
cases, by allowing the accused man virtually to refer the question of
his guilt or innocence to the sworn verdict of his neighbours.

I. _Trial by Combat prior to the Reign of John._ The crucial moment in
judicial proceedings during the Middle Ages arrived, as has already been
explained,[747] when the “test” or “trial” (_lex_) appointed by the
court was attempted by one or both of the litigants. The particular form
of proof to which the warlike Norman barons were attached was the
_duellum_, and it was only natural that such of the old Anglo-Saxon
aristocracy as associated with them on terms of equality should adopt
their prejudices. Hence “combat” became the normal mode of deciding all
serious disputes among the upper classes. Even from the first, however,
it seems not to have been competent for property of less than 10s. in
value,[748] and it soon came to be specially reserved for two classes of
disputes—civil pleas instituted by writ of right, and criminal pleas
following on “appeal.” The present chapter is concerned with the latter
only.

-----

Footnote 747:

See _supra_, pp. 103-6.

Footnote 748:

See _Leges Henrici primi_, c. 69, §§ 15-16.

-----

An “appeal” in this connection was entirely different from the modern
appeal from a lower to a higher court. It was a formal accusation of
treason or felony made by a private individual on his own initiative,
and was usually followed by judicial combat between the appellant and
appellee, each of whom fought in person. Such a right was necessary in
an age when the government had not yet assumed a general responsibility
for bringing ordinary criminals to justice, or was at least so lax and
spasmodic in performing that function as to leave many wrongdoers
unpunished. Appeal followed by battle was probably in its origin a form
of legal procedure substituted for the older blood-feud.[749] Those who
had suffered wrong would be more readily dissuaded from their vendetta
if they were allowed instead the right of judicial duel under fair
conditions laid down by the court. The Norman trial by combat was thus a
survival from an earlier stage of society when the wronged person, not
the magistrate, had been the avenger of crime; and this explains several
peculiarities—why, for example, when the accused had uttered “that
hateful word craven,”[750] thus confessing himself vanquished and
deserving a perjurer’s fate, the victorious accuser was entitled to his
vengeance, even in the face of a royal pardon. When Henry of Essex,
constable and standard-bearer of Henry II., accused by his enemy, Robert
de Montfort, in 1163, had been worsted in the combat, the royal favour
could not shield him, though apparently the king’s connivance enabled
him, by renouncing his possessions and becoming a monk, and therefore
dead in law, to escape actual death by hanging.[751] It would seem that
at an early date the whole procedure had resembled even more closely a
legalized private revenge, since the appellant who had vanquished his
foe was allowed personally to put him to death. "The ancient usage was,
so late as Henry IV.’s time, that all the relations of the slain should
drag the appellee to the place of execution."[752]

-----

Footnote 749:

Cf. _supra_, c. 20.

Footnote 750:

“_Illud verbum odiosum quod recreantus sit._” Bracton, _folio_ 153.

Footnote 751:

See Jocelyn of Brakelond, pp. 50-2.

Footnote 752:

Blackstone, _Commentaries_, IV. 316.

-----

The evils of trial by combat are obvious. From the first it was dreaded
and avoided by the traders of the boroughs, who paid heavily for
charters of exemption. Their aversion spread to the higher classes, and
was shared by Henry II. To that great statesman, endowed with the ardent
instincts of a reformer, despising utterly all obsolete and irrational
modes of procedure, and quite devoid of reverence for tradition, trial
by combat was entirely abhorrent. He would gladly have abolished it out
and out if he had dared; but he prudently followed the more subtle
policy of slowly undermining its vitality. For this purpose he used four
expedients, which are of great interest in respect that they throw light
on the process by which trial by jury superseded trial by battle.[753]
(1) Every facility was afforded the parties to a civil suit who were
willing to forego the _duellum_ voluntarily. Henry placed at their
disposal, as a substitute, a procedure which had by his ancestors been
specially reserved for the service of the Crown. Litigants might refer
their rival claims to the oath of a picked body of local neighbours: the
old recognitors thus developed into the _jurata_. This course was
possible, however, only where both parties consented, and it had many
features in common with a modern arbitration. (2) In pleas relating to
the title and possession of land Henry went further, granting to the
defendant the option of a peaceful settlement even when the claimant
preferred battle. The men to whose oaths such cases were referred were
known as an _assisa_, not a _jurata_, since both litigants had not
consented. The three various groups of assizes welcomed by the barons in
chapter 18 have already been discussed. The _assisa_, like the _jurata_,
could be applied only to civil pleas. (3) Attempts were made to
discourage trial by combat in criminal pleas also by discouraging the
exercise of the right of private “appeal,” its natural prelude. The
corporate voice of the accusing jury was made as far as possible to
supersede the individual complaint of the injured party offering battle.
Only the near blood relation, or the liege lord, of a murdered man was
allowed to prove the offender’s guilt by combat; while a woman’s right
of appeal was kept within narrow limits.[754] (4) A wide field was still
left for private appeal and battle; but Henry endeavoured to narrow it
by a subtle device. In appeals of homicide, where the accusation was not
made _bona fide_, but maliciously or without probable cause, the
appellee was afforded a means of escaping the _duellum_. He might apply
for the writ which forms the subject of this chapter.

-----

Footnote 753:

Cf. _supra_, 107–9, and also 158-163.

Footnote 754:

Some particulars are given under c. 54.

-----

II. _The Writ of Life and Limb._ The writ here referred to, better known
to medieval England as the writ _de odio et atia_,[755] was intended to
protect from duel men unjustly appealed of homicide. Rash or malicious
accusations might be raised by turbulent knights, who made fighting
their pastime, in order to gratify a grudge against traders or other men
of peace, and many an appealed man was glad to purchase from the king
permission to escape by assuming the habit and tonsure of a monk;[756]
but Henry desired to save innocent men from the risk of failure in the
_duellum_ without this subterfuge. If the accused asserted that his
appellant acted “out of spite and hate” (_de odio et atia_), he might
purchase from the royal chancery a writ known by that name, which
referred the preliminary plea thus raised to the verdict of a sworn body
of twelve recognitors drawn from his own locality. If his neighbours
upheld the plea all further proceedings on the appeal were quashed: the
_duellum_ was avoided.[757] A similar privilege was afterwards extended
to all those guilty of homicide in self-defence, or of homicide by
misadventure, not of deliberate murder.[758] Soon every man appealed of
murder, whether guilty or not, alleged as a matter of course that he had
been accused groundlessly and maliciously, mere “words of common form.”
This expansion of the writ’s sphere of usefulness was accompanied by
another change. The main issue of guilt or innocence, not merely the
preliminary pleas, came to be determined by the neighbours’
verdict,[759] which, whether for or against the accused, was treated as
final. No further proceedings were necessary: none were allowed. The
_duellum_ had at last been successfully elbowed aside, although it was
not abolished until 1819.[760]

-----

Footnote 755:

In identifying the writ spoken of by Magna Carta as that “of life and
limbs” with the well-known writ _de odio et atia_, most authorities
rely on a passage in Bracton (viz.: _folio_ 123). There is still
better evidence. The Statute of Westminster, II. c. 29, ordains: “Lest
the parties appealed or indicted be kept long in prison, they shall
have a writ _de odio et atia_ like as it is declared in Magna Carta
and other statutes.” Further, in 1231 twelve jurors who had given a
verdict as to whether an appeal was false, were asked _quo waranto
fecerunt sacramentum illud de vita et membris_, without the king’s
licence. See Bracton’s _Note Book_, case 592.

-----

Footnote 756:

Madox, I. 505, has collected instances.

-----

III. _Subsidiary Uses of the Writ._ This inquest of life and limb,
devised as a means of substituting a sworn verdict for the _duellum_ in
cases of homicide, has often been claimed as the direct antecedent of,
if not as identical with, the procedure which in the seventeenth century
became so valuable a bulwark of the subject’s liberty, under the name of
_habeas corpus_. This is a mistake; the modern writ of _habeas corpus_
was developed out of an entirely different writ, which had for its
original object the safe-keeping of the prisoner’s body in gaol, not his
liberation from unjust confinement.[761]

-----

Footnote 757:

Cf. Pollock and Maitland, II. 585-7, and Thayer, _Evidence_, 68.

Footnote 758:

It was extended in another direction also: some of the feudal courts
adopted a similar procedure in false appeals (although the king
objected to their doing so without royal licence). Inquests were held
shortly after the abolition of ordeal (1215) in the court of the Abbot
of St. Edmund. See Bracton’s _Note Book_, case 592.

Footnote 759:

See Pollock and Maitland, II. 586.

Footnote 760:

59 George III. c. 46.

Footnote 761:

The early history of _habeas corpus_ is traced by Prof. Jenks in a
learned and interesting article in the _Law Quarterly Review_, VIII.
164. The writ _de odio_ was obsolete at a date prior to the invention
of the _habeas corpus_.

-----

The opinion generally though erroneously held, is not without excuse;
for the writ mentioned by Magna Carta, besides effecting its main
purpose, was put to another and subsidiary use, which bears a
superficial resemblance to that served by the _habeas corpus_ of later
centuries. Considerable delay might occur between the appellee’s
petition for the writ of inquisition and the verdict upon it. In the
interval, the man accused of murder had, in the normal case, no right to
be released on bail, a privilege allowed to those suspected of less
grave crimes. This was hard in cases where the accused was the victim of
malice, or guilty only of justifiable homicide. Prisoners, placed in
such a plight, might purchase from the Crown, always ready to accept
fees in a worthy cause, royal writs which would save them from
languishing for months or years in gaol. The writ best suited for this
purpose was that _de odio et atia_, since it was already applicable to
presumably innocent appellees for another purpose.[762]

-----

Footnote 762:

Cf. Brunner, _Entstehung der Schwurgerichte_, p. 471.

-----

As trial by combat became rapidly obsolete, the original purpose of the
writ was forgotten, and its once subsidiary object became more
prominent. Before Bracton’s day (possibly even before the date of Magna
Carta) this change had taken place: the writ had come to be viewed
primarily as an expedient for releasing upon bail homicides _per
infortunium_ or _se defendendo_. Bracton, in giving the form of the
writ,[763] declares it to be iniquitous that innocent men accused of
homicide should be long detained in prison; therefore, he tells us, an
inquisition is wont to be made at the request of sorrowful
friends—whether the accusation is _bona fide_ or has been brought _de
odio et atia_. This pleasing picture of a king moved to pity by the
tearful friends of accused men scarcely applies to John, who listened
only to suitors with long purses which they were ready to empty into his
exchequer. The writs which liberated homicides had become a valuable
source of revenue. Sheriffs were frequently reprimanded for releasing
prisoners on bail without the king’s warrant, but, in spite of heavy
amercements, they continued their irregularities, either through favour
to individuals or in return for bribes. Thus, in 1207, Peter of
Scudimore paid to the exchequer a fine of 10 marks for setting homicides
free upon pledges, without warrant from the king or his justices.[764]
In that year, John repeated his orders, strictly forbidding manslayers
to be set free upon bail, unless by royal command, until they had
received judgment in presence of the king’s justices.[765]

-----

Footnote 763:

See _folio_, 123.

Footnote 764:

See _Pipe Roll_, 8 John, cited Madox, I. 566.

Footnote 765:

See _Rot. Pat._, I. 76, cited Madox, I. 494. The date is 8 November,
1207.

-----

To John, then, the excessive and arbitrary fees to be received for this
writ, constituted its greatest merit; whereas the barons claimed, as
mere matter of justice, that it should be issued free of charge to all
who needed it. John’s acceptance of their demands, contained in the
present chapter, was repeated in all reissues, and apparently observed
in practice. The procedure during the reign of Henry III. is described
by Bracton in a passage already cited. After the writ _de odio_ had been
received, an inquest, he tells us, must be held speedily, and if the
jury decided that the accusation had been made maliciously, or that the
slaying had been committed in self-defence or by accident, the Crown was
to be informed of this. Thereafter, from the chancery would be issued a
second writ, the form of which is also given by Bracton (known in later
days as the writ _tradias in ballium_) directing the sheriff, on the
accused finding twelve good sureties of the county, to “deliver him in
bail to those twelve” till the arrival of the justices. Such writs,
however, if in one sense “freely” issued, had always to be paid for. A
certain Reginald, son of Adam, when accused in 1222, offered one mark to
the king for a verdict of the three neighbouring counties (it was a
Lincolnshire plea), as to whether the accusation was made because of
“the ill-will and hate” (_per odium et atiam_) which William de Ros,
appellant’s lord, bore to Reginald’s father “_vel per verum
appellum_.”[766]

-----

Footnote 766:

See Bracton’s _Note Book_, case 134, and cf. case 1548.

-----

A long series of later statutes enforced or modified this procedure.
These have been interpreted to imply frequent changes of policy,
sometimes abolishing and sometimes reintroducing the writ and the
procedure which followed it.[767] This is a mistake; the various
statutes wrought no radical change, but merely modified points of
detail; sometimes seeking to prevent the release of the guilty on bail,
and sometimes removing difficulties from the path of the innocent. The
Statute of Westminster, I., for example, after a preamble which
animadverted on the manner in which sheriffs impannelled juries
favourable to the accused, provided that inquests “shall be taken by
lawful men chosen out by oath (of whom two at the least shall be
knights) which by no affinity with the prisoners nor otherwise are to be
suspected.”[768] The Statute of Gloucester, on the other hand, ordered
the strict confinement, pending trial, of offenders whose guilt was
apparent.[769] The Statute of Westminster, II. once more favoured
prisoners, providing by chapter 12 for the punishment of false
appellants or accusers, and by chapter 29 that “lest the parties
appealed or indicted be kept long in prison, they shall have a writ of
_odio et atia_, like as it is declared in Magna Carta and other
Statutes.”[770]

-----

Footnote 767:

Stephen, _Hist. Crim. Law_, I. 242 (following Foster, _Crim. Cases_,
284–5), considers that it was abolished by 6 Edward I., stat. 1, c. 9.
Coke, _Second Institute_, 42, thought it was abolished by 28 Edward
III. c. 9 (which, however, seems not to refer to this at all), and
restored by 42 Edward III. c. 1 (abolishing all statutes contrary to
Magna Carta). Coke, _Ibid._, and Hale, _Pleas of the Crown_, II. 148,
considered that the writ was not obsolete in their day. Cf. Pollock
and Maitland, II. 587, n.

Footnote 768:

3 Edward I. c. 11.

Footnote 769:

6 Edward I., stat. 1, c. 9.

Footnote 770:

13 Edward I. cc. 12 and 29.

-----

The writ in question was in use in the year 1314,[771] and seems never
to have been expressly abolished, but to have sunk gradually into
neglect, as appeals became obsolete and commissions of gaol delivery
were more frequently held.

-----

Footnote 771:

See _Rot. Parl._, I. 323.

-----

IV. _Later History of Appeal and Battle._ The right of private
accusation was restricted only, not abolished, by Henry II. and his
successors. It could not be denied to any injured man, who was not
suspected of abusing his right. Prosecutions in the king’s name by way
of indictment and jury trial supplemented, without superseding, private
prosecutions by way of appeal and battle. The danger of a second
prosecution might hang over the head of an accused man after he had
“stood his trial” and been honourably acquitted. It was unfair that he
should be kept in such suspense for ever; and, accordingly, the Statute
of Gloucester provided that the right of appeal should lapse unless
exercised within year and day of the commission of the offence.[772] To
ensure that the accused should escape all risk of a double prosecution
for the same crime, it was necessary that the Crown should supplement
the provisions of this act by delaying to prosecute until the year and
day had expired. This rule was followed in 1482. Such immunity from
arraignment at the king’s suit for the space of twelve months (combined
with the provisions of the Statute of Gloucester) would undoubtedly have
obviated the possibility of two trials for one offence; but it produced
a worse evil of a different kind, by facilitating the escape of
criminals from justice. After experience of its pernicious effects, this
rule was condemned by the act of parliament which instituted the Star
Chamber.[773]

-----

Footnote 772:

6 Edward I. c. 9. Appeals were extremely frequent towards the close of
the Plantagenet period, especially in the days of “the Lords
Appellant.” The proceedings which followed on appeal sometimes took
place before the Court of the Constable and Marshal and sometimes
before Parliament. In neither case were they popular. One of the
charges brought against Richard II. by the Parliament which deposed
him, was that “in violation of Magna Carta” (that is, probably, of
chapter 39) persons maliciously accused of treasonable words were
tried before the constable and marshal, and although they might be
“old and weak, maimed or infirm,” yet compelled to fight against
appellants “young, strong, and hearty.” See _Rot. Parl._, III. 420,
cited Neilson, _Trial by Combat_, 193. On the other hand, the Statute
1 Henry IV. c. 14 provided that no appeals should in future be held
before Parliament, but only before the Court of the Constable and
Marshal.

Footnote 773:

See 3 Henry VII. c. 1, s. 11. This statute emphasized how the injured
party, with the right of appeal, was “oftentimes slow and also agreed
with, and by the end of the year all is forgotten, which is another
occasion of murder.”

-----

This remedied the more recent evil, but revived the old injustice; the
same statute enacted that acquittal should not bar the right of appeal
of the wife or nearest heir of a murdered man. Thus, once again, a man
declared innocent by a jury might find himself still exposed to a second
prosecution. This unjust anomaly remained without formal redress until
the nineteenth century; and in 1817 the British public was startled to
find that a long-forgotten legal procedure of the dark ages still formed
part of the law of England. The body of a Warwickshire girl, Mary
Ashford, was discovered in a pit of water under circumstances which
suggested foul play. Suspicion fell on Abraham Thornton, who had been in
her company on the night when she disappeared. After indictment and
trial at Warwick Assizes on a charge of rape and murder, he was
acquitted. The girl’s eldest brother, William Ashford, was not satisfied
by what was apparently a perfectly honest verdict. He tried to secure a
second trial, and with this object claimed the ancient right of appeal
of felony, which the judges did not see their way to refuse. Ashford’s
attempt to revive this obsolete procedure was met by Thornton’s revival
of its equally obsolete counterpart. Summoned before the judges of
King’s Bench, he offered to defend himself by combat, throwing down as
“wager of battle” a glove of approved antique pattern. The judges had to
admit his legal right to defend himself against the appeal “by his
body,” and Thornton thus successfully foiled the attempt to force him to
a second trial, as the court never contemplated the possibility of a
medieval judicial combat being actually fought in the nineteenth
century. The appeal was withdrawn and the proceedings terminated.[774]

-----

Footnote 774:

See _Ashford v. Thornton_, 1 B. and Ald. 405-461.

-----

The unexpected revival of these legal curiosities of an earlier age led
to their final suppression. In 1819 a Statute was passed abolishing
proof by battle alike in criminal and in civil pleas; and the right of
appeal fell with it.[775]

-----

Footnote 775:

See 59 George III. c. 46.

CHAPTER THIRTY-SEVEN.

Si aliquis teneat de nobis per feodifirmam, vel per sokagium, vel per
burgagium, et de alio terram teneat per servicium militare, nos non
habebimus custodiam heredis nec terre sue que est de feodo alterius,
occasione illius feodifirme, vel sokagii, vel burgagii; nec habebimus
custodiam illius feodifirme, vel sokagii, vel burgagii, nisi ipsa
feodifirma debeat servicium militare. Nos non habebimus custodiam
heredis vel terre alicujus, quam tenet de alio per servicium militare,
occasione alicujus parve serjanterie quam tenet de nobis per servicium
reddendi nobis cultellos, vel sagittas, vel hujusmodi.

If anyone holds of us by fee-farm, by socage, or by burgage, and holds
also land of another lord by knight’s service, we will not (by reason
of that fee-farm, socage, or burgage,) have the wardship of the heir,
or of such land of his as is of the fief of that other; nor shall we
have wardship of that fee-farm, socage, or burgage, unless such
fee-farm owes knight’s service. We will not by reason of any petty
serjeanty which anyone may hold of us by the service of rendering to
us knives, arrows, or the like, have wardship of his heir or of the
land which he holds of another lord by knight’s service.

By these provisions the Charter reverts once more to the subject of
wardship, laying down three rules which will be better understood when
their sequence is somewhat altered, the second being taken first.

(1) _Ordinary wardship._ The reason for claiming wardship from lands
held in chivalry, namely, that a boy tenant could not perform military
service, did not apply to fee-farm, to socage, or to burgage. There was
much looseness of usage, however; and of this John took full advantage.
The Charter stated the law explicitly; wardship was not due from any
such holdings, except in the somewhat anomalous cases where lands in
fee-farm expressly owed military service.[776] As petty serjeanties
(although mentioned in the present chapter in a different connection)
are not expressly said to share this exemption, it may be inferred that
the barons admitted John’s wardship over them, just as in the case of
great serjeanties. In Littleton’s time, the law had been changed. Petty
serjeanties were then exempt.[777]

-----

Footnote 776:

Cf. _supra_, pp. 66-70, and 75-7.

Footnote 777:

II. viii. s. 158.

-----

(2) _Prerogative wardship._ When a tenant-in-chivalry died leaving two
separate military fiefs held of different mesne lords, each of these
lords enjoyed, during the minority, wardship over his own fief. This was
perfectly fair to all parties; but if the ward held one estate of the
Crown, and another of a mesne lord, the king claimed wardship over both;
and that, too, even when the Crown fief was of small value.[778] Such
rights were known as “prerogative wardship,” and thus limited, were in
1215 perfectly legal, however inequitable they may now seem.

Footnote 778:

Cf. Glanvill, VII. c. 10. “When any one holds of the king _in capite_
the wardship over him belongs exclusively to the king, whether the
heir has any other lords or not; because the king can have no equal,
much less a superior.”

-----

(_a_) _Fee-farm, socage, and burgage._ John, however, pushed this right
further, and exercised prerogative wardship over fiefs of mesne lords,
not merely by occasion of Crown fiefs held in chivalry, but also by
occasion of Crown fiefs held by any other free tenure. It was outrageous
thus to claim prerogative wardship in respect of fee-farm, socage, or
burgage lands, which were themselves exempt from ordinary wardship. John
accordingly was made to promise amendment.[779]

-----

Footnote 779:

Glanvill, VII. c. 10, had laid it down that burgage tenure could not
give rise to prerogative wardship.

-----

(_b_) _Petty Serjeanties_[780] were in a slightly different position.
Although Magna Carta did not abolish the Crown’s rights of ordinary
wardship over these, it forbade that that should form an occasion of
prerogative wardship. The king might enjoy the custody of his own fief
if he pleased, but not of the wider fiefs of others on that
pretext.[781]

-----

Footnote 780:

See _supra_, p. 68.

Footnote 781:

See Bracton, _folio_ 87 b. The _Note Book_, case 743, contains a good
illustration. The motive for these restrictions was clearly to prevent
injustice to mesne lords. It was probably, however, an indirect
consequence of Magna Carta that a similar rule came to be applied
where no mesne lord was injuriously affected. In 1231 a certain Ralf
of Bradeley died who had held two separate freeholds of the Crown, (i)
a small fee by petty serjeanty for which he rendered twenty arrows a
year, and (ii) land of considerable value held in socage. The Crown
took possession of both estates, on the assumption that the admitted
right of wardship over the petty serjeanty brought with it a right of
wardship over the socage lands also (although these would have been
exempt if they had stood alone). The king sold his rights for 300
marks. Ralf’s widow claimed the wardship of the socage lands, on the
ground that these were of much greater value than those held by
serjeanty. Her argument was upheld, and the 300 marks were refunded by
the exchequer to the disappointed purchaser. See _Pipe Roll_, 5 Henry
III., cited Madox, I. 325-6.

-----

Prerogative wardship (even in the limited form admitted by Magna Carta)
might involve a double hardship on the mesne lord deprived by it of the
custody of his fief. Suppose that the common tenant held lands from a
mesne lord on condition of, say, five knights’ service, in addition to
his Crown fief. The king seized both fiefs on his death, nominally as a
compensation for the loss of military service, which the minor heir
could not render. Yet when a scutage ran the king demanded from the
mesne lord payments in proportion to his full _quota_ without allowing
for the fees of five knights taken from him by prerogative wardship.
This is no imaginary case. The barons in 1258 complained of the practice
and demanded redress.[782]

-----

Footnote 782:

See Petition of the Barons, article 2 (_Select Charters_, 383). C. 53
of Magna Carta reverts to prerogative wardship, granting redress,
although not summary redress, where John, or his father or brother,
had illegally extended it by occasion of socage, etc. See also
_supra_, p. 241.

-----

CHAPTER THIRTY-EIGHT.

Nullus ballivus ponat de cetero aliquem ad legem simplici loquela sua,
sine testibus fidelibus ad hoc inductis.

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.

The evident intention of this provision was to prevent irregularities at
the critical stage of a trial, when the _lex_ appointed by the court was
attempted. This word _lex_, in its technical sense, may be correctly
applied to any form of judicial test, such as compurgation, ordeal, or
combat, the precise meaning required in each particular case being
determined by the context.[783] In this passage of Magna Carta, it may
be used in its widest connotation, but reasons will be immediately
adduced for the belief that _ordeal_ was specially present to the minds
of those who framed it. Bailiffs, (the word is a wide one, including
certainly the sheriffs and their underlings, and possibly also the
stewards who presided in manorial courts)[784] had evidently been guilty
of irregularities which public opinion of the day condemned. So much is
clear: but authorities differ widely as to the exact nature of the abuse
which is here prohibited.

-----

Footnote 783:

Dr. Stubbs (_Const. Hist._, I. 576) translates “_lex_” in this passage
by “compurgation or ordeal.” Pollock and Maitland (II. 604, n.)
explain that the word “does not necessarily point to unilateral
ordeal; it may well stand for trial by battle.” Thayer (_Evidence_,
199–200) extends it even further, so as to embrace judicially
appointed tests of every kind—battle, ordeal of fire or water, simple
oath, oath with compurgators, charter, transaction witnesses, or sworn
verdict. Bigelow (_Placita Anglo-Normannica_, 44) cites from Domesday
Book cases where litigants offered proof _omni lege_ or _omnibus
legibus_, that is, in any way the court decided. Sometimes _lex_ had a
more restricted meaning; in the Customs of Newcastle-on-Tyne _(Select
Charters_, 112) it seems to mean compurgation as opposed to combat.

-----

Footnote 784:

Cf _supra_, c. 24. Coke, _Second Institute_, p. 44, following the
doubtful authority of the _Mirror of Justices_, extends it to all
king’s justices and ministers. The unqualified “_ballivus_” of this
passage should, perhaps, be contrasted with the “_noster ballivus_” of
cc. 28 and 30.

-----

I. _Probable Object of the Chapter._ The key is supplied by the words of
article 4 of the Assize of Clarendon, the provisions of which still
regulated the Crown’s practice in criminal cases in the reign of John.
That ordinance explains the procedure to be followed when robbers,
murderers, or thieves, apprehended by the sheriffs upon indictment, were
brought before the justices for trial: “and the sheriffs shall bring
them before the justices; and with them they shall bring two lawful men
of the hundred and of the village where they were apprehended, to bear
the record of the county and of the hundred, as to why they had been
apprehended; and, there, before the justices they shall make their law.”
This “law” is elsewhere in the ordinance clearly identified with
ordeal;[785] and the purport of the whole was that accused men could not
be put to ordeal except in presence of two lawful men who had been
present at the indictment and had come before the justices specially to
bear witness thereof. In other words, the sheriff’s verbal report of the
indictment “_sine testibus fidelibus ad hoc inductis_” was not
sufficient. The “county” and the “hundred” which had accused the
prisoner must send representatives to bear record of the facts.[786]

-----

Footnote 785:

See article 12 where “_eat ad aquam_” is contrasted with “_non habeat
legem_” of article 13 (_Select Charters_, 144).

Footnote 786:

The “_ad portandum recordationem comitatus et hundredi_” of the
ordinance is exactly opposed to the “_simplex loquela sua_” of the
Charter.

The ordeal indeed was a solemn affair for which careful rules had been
laid down. Every precaution was taken against the sheriff abusing his
authority. His account of the indictment was checked by the presence of
subordinate officials as well as of these members of the accusing jury.
Moreover, lords of feudal courts, claiming this franchise, could only
exercise it under royal warrant. Henry, the inventor of the system,
sternly repressed all irregularities whether those of his own bailiffs
or of the stewards of private lords.[787]

-----

Footnote 787:

Thus in 1166 (the year of the Assize of Clarendon) the “_Soca_” of
Alverton was amerced because of a man placed “_ad aquam sine
serviente_” (_Pipe Roll_, 12 Henry II., p. 49 of edition of Pipe Roll
Society). In 1185 the “_villata_” of Preston paid 5 marks for putting
a man “_ad aquam sine waranto_” (_Pipe Roll_, 31 Henry II., cited
Madox, I. 547). In the same year a certain Roger owed half a mark for
being present at an ordeal “_sine visu servientum regis_”: and heavy
fines were exacted from those who had put a man “_injuste ad aquam_”
(_Ibid._). Apparently the bailiffs were sometimes described as the
king’s serjeants and sometimes as the sheriff’s serjeants: the same
Roll records fines for a man buried “_sine visu servientum
vicecomitis_” and for a robber hanged “_sine visu servientis regis_”
(_Pipe Roll_, 31 Henry II.).

-----

The same rules of procedure prevailed under John, who was less careful,
however, than his father had been, to suppress irregularities. In Magna
Carta he promised amendment. The presence of witnesses required by the
Assize of Clarendon was once more insisted on as a check upon the
capricious or unfair use of the ordeal. The Charter of 1216 repeated
this provision without alteration. In 1217, however, a change occurred,
which was undoubtedly a consequence of the virtual abolition of the
ordeal by the Lateran Council in 1215. The framers of Henry’s second
reissue, no longer so engrossed in pressing matters of state as they had
been in the previous year, found leisure to adjust points of
administrative detail. The simple reference to ordeal was inappropriate
now that new forms of trial were taking its place. The justices, indeed,
scarcely knew what test they should appoint, when ordeal had been
forbidden. They seem sometimes to have resorted to compurgation and
sometimes to battle; but the sworn verdict of neighbours was fast
occupying the ground left vacant. The new Charter then made it clear
that the provisions applied in 1215 to ordeal were to be extended to the
other tests which were now being substituted for it. The “_ad legem_” of
John’s Charter became in the new version “_ad legem manifestam nec ad
juramentum_,” which might very well include battle and the decisions of
jurors, as well as ordeal.[788]

-----

Footnote 788:

See Thayer, _Evidence_, 37, n. for a case of 1291, where “_ad legem
manifestam_” can only mean trial by combat. The Statute of Westminster
I. (3 Edward I. c. 12) described men refusing to put themselves on a
jury’s verdict, “_come ceaus qui refusent la commune ley de la
terre_.”

-----

II. _Medieval Interpretations of the Passage._ Ignorance of the exact
nature of the abuse prohibited may well be excused at the present day,
since it had become obscure within a century of the granting of the
Charter. Some legal notes of the early fourteenth century, containing
three alternative suggestions, have come down to us.[789]

-----

Footnote 789:

These appear as an appendix to the Year Book of 32-3 Edward I. (p.
516); but the handwriting is supposed to be of the reign of Edward II.

-----

(1) The first interpretation discussed, and apparently dismissed, in
these notes, was that Magna Carta by this prohibition wished to ensure
that no one should serve on a jury (_in juratam_) unless he had been
warned by a timely summons. This far-fetched suggestion is clearly
erroneous.

(2) The next hypothesis raised is that the clause prevented the
defendant on a writ of debt (or any similar writ) from winning his case
by his unsupported oath, where compurgators ought to have sworn along
with him. Exception was, in this view, taken to the bailiff treating
favoured _defendants_ in civil pleas with unfair leniency.

(3) A third opinion is stated and eulogized as a better one, namely that
the Charter prohibited bailiffs from showing undue favour to
_plaintiffs_ in civil pleas. The defendant on a writ of debt (or the
like) should not, in this interpretation of Magna Carta, be compelled to
go to proof at all (that is, to make his “law”) unless the plaintiff had
brought “suit” against him (that is, had raised a presumption that the
claim was good, by production of preliminary witnesses or by some
recognized equivalent).[790] This last of the three interpretations thus
suggested in the reign of Edward II. has its modern adherents, as will
immediately be shown; but the discussion inaugurated in Plantagenet days
has not yet received an authoritative settlement. It was discussed in
the Court of Common Pleas so recently as 1700,[791] and historians at
the present day differ as widely as do the lawyers.

-----

Footnote 790:

Cf. _supra_, pp. 101-2. The necessity for such “suit” was not legally
abolished until 1852 (by Statute 15 and 16 Victoria, c. 76, s. 55). In
1343 it had been decided that the “suit” must be in existence, but
need not be produced in court; and that if they did appear they could
not be examined. See Thayer, _Evidence_, 13–15.

Footnote 791:

See City of London _v._ Wood, cited _infra_.

-----

III. _Modern Interpretations of the Passage._ No two of the recent
authorities hold precisely similar opinions. Four views, at least, may
be distinguished. (1) The provision is sometimes regarded as an attempt
to prevent plaintiffs in civil suits from being treated with undue
favour to the prejudice of defendants. A “suit” of witnesses
(_sectatores_) had to be produced in court by the plaintiff before any
“trial” (_lex_) could take place at all. Bailiffs were forbidden to
allow, through slackness, favour, or bribery, this rule to be relaxed.
This interpretation, which was adopted by the author of the _Mirror of
Justices_, and by the writer of the notes appended to the Year Book
already cited, found favour with Chief Justice Holt in 1700.[792]

-----

Footnote 792:

See City of London _v._ Wood (12 Modern Reports, 669). Holt held the
clause of Magna Carta to mean that the plaintiff, unless he had his
witnesses, could not put a defendant to his oath. Pollock and
Maitland, II. 604, seem to concur, to the extent at least of counting
this as one of the abuses condemned by c. 38: “The rule which required
a suit of witnesses had been regarded as a valuable rule; in 1215 the
barons demanded that no exception to it should be allowed in favour of
royal officers.”

-----

(2) A second theory treats the clause as forbidding bailiffs (whether
royal officers or manorial stewards) to use their authority to forward
suits to which they happened to be parties. In certain circumstances, it
would seem, the steward who presided as his master’s representative over
the manorial court claimed the right to put a defendant to his proof,
without first producing “suit” or its equivalent, a privilege, however,
which he could exercise only once in every year. Royal bailiffs claimed
this privilege, and that without any similar restrictions. One object of
Magna Carta, in this view, was to reduce bailiffs to an equality with
other litigants. No longer should their bare assertion enable them to
dispense with the formalities which the court required from ordinary
plaintiffs before putting their adversaries to the risk of “a law” or
proof.[793]

-----

Footnote 793:

This reading is emphasized by Brunner, _Entstehung der
Schwurgerichte_, 199-200.

-----

(3) In marked contrast to these two theories, which read Magna Carta as
preventing undue favour to plaintiffs, comes a third which regards it as
forbidding undue favour to defendants. The Crown, it is pointed out,
favoured Jews against Christians with whom they went to law. The Hebrew
defendant in a civil suit “might purge himself by his bare oath on the
Pentateuch, whereas in a similar case a Christian, as the law then
stood, might be required to wage his law twelve-handed—_i.e._ with
eleven compurgators.”[794] Magna Carta, it has been suggested, struck at
this preferential treatment of Jewish litigants, trebly hated as aliens,
capitalists, and rejectors of Christ. If so, the attempt failed; for in
1275 a certain Hebrew, named Abraham, was allowed “to make his law
single-handed on his Book of the Jewish Law” in face of the plaintiff’s
protest that this was contrary to the custom of the realm.[795]

-----

Footnote 794:

See J. M. Rigg’s admirable preface to Sel. _Pleas from Rolls of Jewish
Exchequer_, p. xii., and cf. _supra_, c. 10.

Footnote 795:

See _Ibid._, p. 89, where the case is cited.

-----

(4) A fourth theory reads the chapter as a prohibition of undue severity
in criminal prosecutions. A formal indictment by the accusing jury must
always precede the “trial.” No bailiff ought to put anyone to the water
or the red-hot iron upon suspicion, or private information.[796] Much
may be said for this interpretation so far as it goes; but the Assize of
Clarendon and Magna Carta agree in demanding something more. It was not
enough that indictment should precede ordeal; they required that some
members of the presenting jury who had made the accusation at the first
diet should accompany the sheriff before the justices at the final diet,
there to bear testimony both as to the nature of the crime and as to the
fact of the indictment. Before anyone could be put “to his law,” the
sheriff’s verbal report must be corroborated by the testimony of
representative jurors.

-----

Footnote 796:

This reading is supported by Pollock and Maitland, I. 130, n. There is
no necessary inconsistency between the view here cited, and that
already cited from _Ibid._ II. 604. The same clause of Magna Carta may
have been aimed at irregularities of two kinds, in civil and criminal
pleas respectively.

-----

CHAPTER THIRTY-NINE.

Nullus liber homo capiatur, vel imprisonetur, aut disseisiatur, aut
utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum
ibimus, nec super eum mittemus, nisi per legale judicium parium suorum
vel per legem terre.

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,[797] unless by
the lawful judgment of his peers and by the law of the land.

-----

Footnote 797:

The corresponding provision of the Articles of the Barons (29) adds
the word “_vi_” (“_nec rex eat vel mittat super eum vi_”). The idea of
open violence, thus clearly indicated, is expressed in contemporary
documents by the fuller phrase, _per vim et arma_. The accepted
translation, as contained in the _Statutes at Large_, “nor will we
pass upon him nor condemn him,” is thus inadequate. The editors of the
_Statutes of the Realm_, I. 117, suggest “deal with him” as an
alternative translation. Coke, it will be seen _infra_, is the
original source of the error which connects this “going” and “sending”
with legal process.

This chapter occupies a prominent place in law-books, and is of
considerable importance, although there are reasons for holding that its
value has been grossly exaggerated.

I. _Its Main Object._ It has been usual to read it as containing a
guarantee of trial by jury to all Englishmen; as absolutely prohibiting
arbitrary commitment; and as undertaking solemnly to dispense to all and
sundry an equal justice, full, free, and speedy.[798] The traditional
interpretation has thus made it, in the widest terms, a promise of law
and liberty, and good government to every one.[799] A careful analysis
of the words of the clause, read in connection with its historical
genesis, suggests the need for modifications of this view. It was in
accord with the practical genius of this great document that it should
direct its energies, not to the enunciation of vague platitudes and
well-sounding generalities, but to the reform of a specific and clearly
defined group of abuses. Its main object was to prohibit John from
resorting to what is sometimes whimsically known in Scotland as “Jeddart
justice.”[800] It forbade him for the future to place execution before
judgment. Three aspects of this prohibition may be emphasized.

-----

Footnote 798:

See, _e.g._, Coke, _Second Institute_, 55.

Footnote 799:

Thus Blackstone, _Commentaries_, IV. 424: “It protected every
individual of the nation in the free enjoyment of his life, his
liberty, and his property, unless declared to be forfeited by the
judgment of his peers or the law of the land.” Hallam, _Middle Ages_,
II. 448, speaking of cc. 39 and 40 together, says they “protect the
personal liberty and property of all freemen by giving security from
arbitrary imprisonment and arbitrary spoliation.” Creasy, _English
Constitution_, p. 151, n.: “The ultimate effect of this chapter was to
give and to guarantee full protection for person and property to every
human being that breathes English air.”

Footnote 800:

The same grim tradition applied to Lidford as to Jedburgh:

“I oft have heard of Lydford law,
How in the morn they hang and draw,
And sit in judgment after.”

See Neilson, _Trial by Combat_, 131, and authorities there cited.

-----

(1) _Judgment must precede execution._ In some isolated cases, happily
not numerous, John proceeded, or threatened to proceed, by force of arms
against recalcitrants as though assured of their guilt, without waiting
for legal procedure.[801] Complaint was made of arrests and
imprisonments suffered “without judgment” (_absque judicio_); and these
are the very words used in the "unknown charter"—“_Concedit Rex Johannes
quod non capiet homines absque judicio_.”[802] Both the Articles of the
Barons and Magna Carta expand this phrase. _Absque judicio becomes nisi
per legale judicium parium suorum vel per legem terre_, thus guarding,
not merely against the more obvious evil—execution without judgment—but
also against John’s subtler device for attacking his enemies by a
travesty of judicial process. The Charter asks not only for a
“judgment,” but for a “judgment of peers” and “according to the law of
the land.” Two species of irregularities were condemned by these words;
and these will be explained in the two following subsections.

-----

Footnote 801:

Mr. Bigelow considers that such cases were numerous. See _Procedure_,
155: “The practice of granting writs of execution without trial in the
courts appears to have been common.”

Footnote 802:

See Appendix.

-----

(2) _Per judicium parium_: every judgment must be delivered by the
accused man’s “equals.” The need for “a judgment of peers” was
recognized at an early date in England.[803] It was not originally a
class privilege of the aristocracy, but a right shared by all grades of
freeholders; whatever their rank they could not be tried by their
inferiors.[804] In this respect English custom did not differ from the
procedure prescribed by feudal usage on the Continent of Europe.[805]
Two applications of this general principle had, however, special
interest for the framers of Magna Carta: the “peers” of a Crown tenant
were his fellow Crown tenants, who would normally deliver judgment in
the _Curia Regis_; while the “peers” of the tenant of a mesne lord were
the other freeholding tenants assembled in the Court Baron of the manor.
In either case judgments were given _per pares curiae_, who decided what
“test” should be appointed, who thereafter sat as umpires while their
accused “peer” carried this through to success or failure, and who
finally pronounced a sentence in accordance with the result. Crown
tenants and under-tenants alike complained that they were deprived by
John of the only safeguard they could trust, the judgment of a full
court of Englishmen of their own rank, who presumably, therefore, had no
undue bias towards conviction. John, not here an innovator, but merely
resorting wholesale to practices used sparingly and with prudence in
earlier reigns, had set these rights openly at defiance. His political
and personal enemies were frequently exiled, or deprived of their
estates, by the judgment of a tribunal composed entirely of Crown
nominees ready to give any sentence which John might dictate. Magna
Carta promised a return to the recognized ancient practice. No freeman
should henceforth suffer in person or in property as the result of a
judgment by the professional judges forming the bench of Common Pleas,
or the other bench known as _coram rege_. This was to abolish not merely
the abuses of John, but the system of Henry II., which he abused.

-----

Footnote 803:

The earliest known reference occurs in the so-called _Leges Henrici
primi_ (c. 31). _Unusquisque per pares suos judicandus est et ejusdem
provinciae_.

Footnote 804:

Cf. Pollock and Maitland, I. 152, and authority cited. As there was no
“peerage” in England in the modern sense (cf. _supra_, p. 237) until
long after John’s reign, it is obvious that the _judicium parium_ of
Magna Carta must be interpreted in a broader sense than any mere
“privilege of a peer” at the present day. Every man’s equals were his
“peers.”

Footnote 805:

See Stubbs, _Const. Hist._, I. 578, n., for foreign examples of
_judicium parium_.

-----

The varied meanings conveyed by the word “peers” to a medieval mind,
together with the nature of _judicium parium_, may be further
illustrated by the special rules applicable to four exceptional classes
of individuals:—(_a_) all Jews of England and Normandy enjoyed under
John’s charter of 10th April, 1201, the right to have complaints against
them judged by men of their own race. For them a _judicium parium_ was a
judgment of Jews.[806] (_b_) A foreign merchant, by later statutes,
obtained the right to a special form of _judicium parium_—to a jury of
the “half tongue” (_de medietate linguae_), composed partly of aliens of
his own country.[807] (_c_) The peers of a Welshman seem, in some
disputes with the Crown, to have been men drawn from the marches, and
therefore unlikely to side entirely either with the English or with the
Welsh point of view. Such at least is the most plausible interpretation
of the phrase “_in marchia per judicium parium suorum_,” occurring in
later chapters of Magna Carta, and granting to the Welsh redress of
wrongful disseisins.[808] (_d_) A Lord Marcher occupied a peculiar
position, enjoying rights denied to barons whose estates lay in more
settled parts of England. In 1281 the Earl of Gloucester, accused by
Edward I. of a breach of allegiance, claimed to be judged, not by the
whole body of Crown tenants, but by such as were, like himself, lords
marchers.[809] These illustrations show that a “trial by peers” had a
wider and less stereotyped meaning in the Middle Ages than it has at the
present day.[810]

-----

Footnote 806:

“If a Christian bring a complaint against a Jew, let it be adjudged by
his peers of the Jews.” See _Rot. Chartarum_, p. 93, and _supra_ p.
269.

Footnote 807:

See _Carta Mercatoria_, c. 8; 27 Edward III. stat. 2, c. 8; and 28
Edward III. c. 13; also Thayer, _Evidence_, p. 94.

Footnote 808:

See _infra_, cc. 56, 57, and 58. Under c. 59 the barons of England
were called peers of the King of Scots.

Footnote 809:

See _Placitorum Abbreviatio_, p. 201, cited Pollock and Maitland, I.
393 n.

Footnote 810:

See also a passage in the Scots Acts of Parliament (I. 318) attributed
to David: “No man shall be judged by his inferior who is not his peer;
the earl shall be judged by the earl, the baron by the baron, the
vavassor by the vavassor, the burgess by the burgess; but an inferior
may be judged by a superior.”

-----

(3) _Per legem terrae._ No freeman could be punished except in
accordance with the law of England. These often-quoted words were used
in Magna Carta with special though not perhaps exclusive reference to
the narrow technical meaning of “_lex_” which was so prominent in 1215
and which has been already explained.[811] The Great Charter promised
that no plea, civil or criminal, should henceforth be decided against
any freeman until he had failed in the customary "proof"—whether battle,
or ordeal, or otherwise.[812]

-----

Footnote 811:

See _supra_, p. 103, and cc. 18, 36, and 38.

Footnote 812:

See Thayer, _Evidence_, 200–1, for a discussion of the phrase “_lex
terrae_.” See also Bigelow, _History of Procedure_, 155, n.: “The
expression ‘_per legem terrae_’ simply required judicial proceedings,
according to the nature of the case; the duel, ordeal, or
compurgation, in criminal cases, the duel, witnesses, charters, or
recognition in property cases.” The words occur at least twice in
Glanvill, each time apparently with the technical meaning. In II. c.
19, the penalty for a false verdict includes forfeiture by jurors of
their law (“_legem terrae amittentes_”); while in V. c. 5, a man born
a villein, though freed by his lord, cannot, to the prejudice of any
stranger, wage his law (“_ad aliquam legem terrae faciendam_”). The
stress placed on the accused’s right to the time-honoured forms of
_lex_ is well illustrated by the difficulty of substituting jury trial
for ordeal. It has already been shown that the right of “standing
mute,” that is, virtually, of demanding ordeal, was only abolished in
1772. See _supra_, p. 400. Five and a half centuries were thus allowed
to pass before the criminal law was bold enough, in defiance of a
fundamental principle of Magna Carta, to deprive accused men of their
“law.”

-----

This older, more technical signification was gradually forgotten, and
“the law of the land” became the vague and somewhat meaningless phrase
of the popular speech of to-day. It was only natural that this change of
meaning should be reflected in subsequent statutes reaffirming,
expanding, or explaining Magna Carta. An important series of these,
passed in the reigns of Edward III. and Richard II., shows how the _per
legem terrae_ of 1215 was read in the fourteenth century as equivalent
to the wider expression “by due process of law,” and how the Great
Charter was interpreted as prohibiting the trial of men for their lives
and limbs before the King’s Council on mere informal and irresponsible
suggestions, sometimes made loosely or from malicious and interested
motives.[813]

-----

Footnote 813:

It would seem, however, from the words of these statutes that for this
purpose the provisions of chapters 36 and 38 were used to supplement
those of the present chapter, if they were not confused with them. See
5 Edward III. c. 9; 25 Edward III. stat. 5, c. 4; 37 Edward III. c.
18; 38 Edward III. c. 3; 42 Edward III. c. 3; 17 Richard II. c. 6. See
also Stubbs, _Const. Hist._, II. 637-9, for the series of petitions
beginning with 1351.

The Act of 1352, for example, after reciting the provision of Magna
Carta at present under discussion, insisted on the necessity of
“indictment or presentment of good and lawful people of the same
neighbourhood where such deeds be done.” Coke,[814] founding apparently
on the terms of these fourteenth-century statutes, makes “_per legem
terrae_” of the Charter equivalent to “by due process of law” and that
again to “by indictment or presentment of good and lawful men,” thus
finding the grand jury enshrined in Magna Carta. The framers of the
Petition of Right[815] read the same words as a prohibition, not only of
imprisonment “without any cause showed” but also of proceedings under
martial law, thus interpreting the aims of King John’s opponents in the
light of the misdeeds of King Charles, and applying to the rude system
established by Henry of Anjou reforms more appropriate to the highly
developed administration of the Tudors.

-----

Footnote 814:

_Second Institute_, p. 46.

Footnote 815:

3 Charles I. c. 1.

-----

These glosses must be discarded; the words of John’s Charter promised a
threefold security to all the freemen of England. Their persons and
property were protected from the king’s arbitrary will by the rule that
execution should be preceded by a judgment—by a judgment of peers—by a
judgment according to the appropriate time-honoured “test,” battle,
compurgation, or ordeal.

(4) _The meaning of “vel.”_ The peculiar use of the word “_vel_”
introduced an unfortunate element of ambiguity. No proceedings were to
take place "without lawful judgment of peers or by the law of the
land"—“or” thus occurring where “and” might naturally be expected.
Authorities on medieval Latin are agreed, however, that “_vel_” is
sometimes equivalent to _et_.[816] Comparison with the terms of chapter
52 and with those of the corresponding Article of the Barons places the
matter almost beyond doubt. The 25th of the Articles of the Barons had
provided that all men disseised by Henry or Richard should “have right
without delay by judgment of their peers in the king’s court,” giving no
hint of any possible alternative to _judicium parium_. Chapter 52 of the
Charter, in supplementing the present chapter, describes the evils
complained of in both as acts of disseisin or outlawry by the king
“_sine legale judicio parium suorum_,” leaving no room for ambiguity.

-----

Footnote 816:

Pollock and Maitland, I. 152, n., read the word as having _both_
meanings in this passage. Cf. Gneist, _Engl. Const._, chapter xviii.
Mr. Pike, _House of Lords_, 170, takes an opposite view: “King John
bound himself in such a manner as to show that judgment of peers was
one thing, the law of the land another. The judgment of peers was ...
a very simple matter and well understood at the time. The law of the
land included all legal proceedings, civil or criminal, other than the
judgment of peers.” The present writer rejects this antithesis,
because the two things may be, and indeed must be, combined. The
“trial” by a law and the “judgment” by equals were complementary of
each other. The peers appointed the test and decided whether it had
been properly fulfilled.

-----

II. _The Scope of the Protection afforded._ The object of the barons was
to protect themselves and their friends against the king, not to set
forth a scientific system of jurisprudence: the _judicium parium_ was
interposed as a barrier against prosecutions instituted by the king, not
against appeals of private individuals. Pleas following upon accusations
by the injured party were held in 1471 not to fall within the words of
Magna Carta.[817] This was a serious limitation; but as against the
Crown the scope of the protection afforded by the Great Charter was very
wide indeed. Care was taken that the three-fold safeguard should cover
every form of abuse likely to be practised by John.

-----

Footnote 817:

See, _e.g._, Pike, _House of Lords_, 217, citing Littleton in _Year
Book_, Easter, 10 Edward IV., No. 17, fo. 6.

-----

(1) _Capiatur vel imprisonetur._ If these two words were literally
interpreted, and the provision they embody strictly enforced, all
orderly government would be at an end. When a crime has been committed,
the offender must be arrested and provisionally detained, without
waiting for any judgment, whether of peers or otherwise. A man accused
of crime may, indeed, justly demand three things: a trial before
condemnation, that the trial be not too long delayed, and that under
some circumstances he should be meanwhile released on bail. Magna Carta
goes further, promising complete exemption from arrest until judgment
had been passed upon him. Here the barons extorted a wider concession
than could possibly be enforced. Their excess of caution had led them to
use a loose and dangerously wide phrase, which ought not to be too
literally interpreted.[818]

-----

Footnote 818:

If “_vel_” might be translated by “and” and “_imprisonetur_” by
“detained in gaol,” the phrase would then mean that no freeman should
be kept too long in prison pending his trial, or permanently
imprisoned without trial.

-----

(2) _Aut disseisiatur._ Avarice was one of the most frequent motives of
John’s oppressions: the whole machinery of justice was valued primarily
as an engine for transferring land and money to his treasury. Crown
tenants frequently found their estates appropriated by the Crown as
escheats. That this was one of their grievances to which the barons
attached supreme importance is shown in many ways: by the care taken in
the 25th of the Articles of the Barons and in chapter 52 of the Charter
to provide procedure for restoring to their rightful owners estates of
which they had been improperly “disseised,”[819] and by the terms of
certain writs issued by John after the treaty at Runnymede, for example
the letter of 19th June to his half-brother, the Earl of Salisbury,
explaining that peace had been made on condition of the immediate
restoration of all “lands, castles, and franchises from which we have
caused any one to be disseised _injuste et sine judicio_.”[820]

-----

Footnote 819:

For this word cf. _supra_, c. 18. The treaty entered into by John in
1191 (discussed _infra_) speaks of the “disseisin of chattels,”
showing that the word had not yet been absolutely restricted to real
estate.

Footnote 820:

See _Rot. Claus._, I. 215. Mr. Pike (_House of Lords_, p. 170)
maintains, indeed, that the prevention of disseisins “_sine judicio_”
was the chief, if not the sole, object of the chapter under
discussion:—“The judgment of peers had reference chiefly to the right
of landholders to their lands, or to some matters connected with
feudal tenure and its incidents.” This goes too far: the barons by no
means confined the safeguard afforded by the _judicium parium_ to
questions of land and land-tenure. Pollock and Maitland, I. 393,
countenance a broader interpretation. One point is beyond doubt:
_judicium parium_ extended to the assessing of amercements. In c. 21
earls and barons are confirmed in the right to be amerced only _per
pares suos_.

Later versions of Magna Carta (beginning with that of 1217) are careful
to define the objects to be protected from disseisin: “free tenements,
franchises, and free customs.”[821] (_a_) _Liberum tenementum._ “Free”
tenements were freeholds as opposed to the holdings of villeins. None of
their belongings thus protected were more highly valued by the barons
than their feudal strongholds.[822] Castles claimed by great lords as
their own property are mentioned in many writs of the period—for
example, in that to the Earl of Salisbury already cited—while chapter 52
of Magna Carta gives them a prominent place among the “disseisins” to be
restored. (_b_) “_Libertates_” covered feudal rights and incidents of
too intangible nature to be appropriately described as “holdings.” In a
sense, all the rights secured by Magna Carta were “liberties”; but the
word is probably used here as equivalent to “franchises,” embracing
feudal jurisdictions, immunities, and privileges of various sorts, all
treated by medieval law as falling within the category of “property.”
(_c_) _Consuetudines_ had two meanings, a broad general one and a
narrower financial one.[823] As the Charter of 1217 uses a proprietary
pronoun (no freeman shall be disseised of _his_ free customs), it
probably refers to such rights as those of levying tolls and tallages.
These vested interests were of the nature of monopolies throughout the
territory of the lord who enjoyed them; and it follows that Coke, in
treating this passage as a text on which to preach the doctrine that
monopolies have always been illegal in England, aims unusually wide of
his mark. Commenting on the words “_de libertatibus_,” he declares that
“generally all monopolies are against this great charter, because they
are against the liberty and freedom of the subject and against the law
of the land.”[824] In this error he has been assiduously followed.[825]

-----

Footnote 821:

_De libero tenemento suo vel libertatibus vel liberis consuetudinibus
suis._

Footnote 822:

Cf. _supra_, p. 176.

Footnote 823:

Cf. _supra_, p. 290.

Footnote 824:

_Second Institute_, p. 47.

Footnote 825:

See, _e.g._, Creasy, _Hist. of Const._, p. 151, n.: “Monopolies in
general are against the enactments of the Great Charter.” See also
Taswell-Langmead, _Eng. Const. Hist._, 108.

-----

(3) _Aut utlagetur, aut exuletur, aut aliquo modo destruatur._ The
practice of placing outside the protection of the law such evildoers as
could not be brought to justice had its origin in those early days when
the existing machinery of law was inadequate to the work required of it.
With the progress of order and organization, the criminal’s chances of
evading justice became fewer; and the declaration of outlawry, which
could only be made in the county court, tended to become a mere
formality, preliminary to the forfeiture of the outlaw’s lands and
goods. The expedient was one which recommended itself peculiarly to
John’s genius; it was his deliberate policy to terrify those with whom
he had quarrelled, until they fled the country; then to summon them
three times before the county court to answer the charges against them,
knowing well that they dared not face his corrupt and servile officers;
and finally to have them formally outlawed and their property seized.
Such had been the fate suffered by two of the baronial leaders, Robert
Fitz Walter and Eustace de Vesci, in the autumn of 1212.[826] Outlawry
was not always, however, a mere formality in John’s reign. The man who
had been outlawed was outside the pale of society; anyone might slay him
at pleasure; in the grim phrase of the day, he bore "a wolf’s head"
(_caput lupinum_), and might be hunted like a noxious beast. A reward of
two marks was offered for each outlaw’s head brought to Westminster.
This sum was paid in 1196 for the head of William of Elleford.[827] The
word “exiled” explains itself; and commentators have very properly noted
the care taken to widen the scope of the clause by the use of the words
“or in any other way molested.”[828]

-----

Footnote 826:

See _supra_, p. 30.

Footnote 827:

See _Pipe Rolls_, 7 Richard I., cited by Madox, I. 201.

Footnote 828:

_E.g._, Coke, _Second Institute_, p. 48.

-----

(4) “_Nec super eum ibimus, nec super eum mittemus._” These words have
been frequently misinterpreted. They must be viewed in the light of the
historical incidents of the immediately preceding years; and, so read,
they present no difficulties, and leave no room for ambiguity. Their
object was to prevent John from substituting violence for legal process;
from taking the law into his own hands and “going against them” with an
army at his back, or “sending against them” in similar wise. He must
never again attack _per vim et arma_ men unjudged and uncondemned.

The meaning is plain. Yet Coke, following his vicious method of assuming
the existence, in some part of Magna Carta, of a warrant for every legal
principle established in his own day, has utterly misled several
generations of commentators. He maintained that what John promised was
to refrain from raising in his own courts actions in which he was
personally interested. In elaborating this error, he drew a fine
distinction between the court of King’s Bench, otherwise known as _coram
rege_, because the king was always in theory present there, and other
courts in which were present only those to whom he had delegated
authority by a writ “sent” to it. _Ibimus_, he seems to think, applied
in the former case; _mittemus_ in the latter. To quote his own words,
"No man shall be condemned at the king’s suit, either before the king in
his bench, where the pleas are _coram rege_ (and so are the words, _nec
super eum ibimus_, to be understood) nor before any other commissioner,
or judge whatsoever (and so are the words, _nec super eum mittemus_, to
be understood), but by the judgment of his peers, that is, equals, or
according to the law of the land."[829] Coke is completely in error; it
was the use of brute force, not merely a limited form of legal process,
which John in these words renounced.

-----

Footnote 829:

See _Second Institute_, page 46. John Reeves, _History of English
Law_, I. 249 (third ed.), while condemning Coke, gives an even more
strained interpretation of his own, founded on the chance
juxtaposition of the two verbs in one passage of the Digest. On quite
inconclusive grounds he draws the inference that both words refer
exclusively to diligence against "goods and chattels"—diligence
against the person, and diligence against landed estate having
previously been treated in words specially appropriate to each of them
respectively. Dr. Lingard, _History of England_, III. c. 1, deserves
praise as the first commentator who took the correct view.

-----

III. _What Classes of Men enjoyed the Protection of Judicium Parium?_ No
“freeman” was to be molested in any of the ways specified; but how far
in the social scale did this description descend? Coke claims the
villeins as free for the purposes of this chapter and of chapter I.,
while rejecting them for the purposes of chapter 20.[830] His right to
the status of a freeman has already been disallowed,[831] and any
possible ambiguity as to his share in the benefits of the present
chapter is removed by the deliberate words of the revised version of
1217. Chapter 35 of that reissue, with the object of making its meaning
clearer, inserts after “_disseisiatur_” the words (already discussed)
“_de libero tenemento suo vel libertatibus vel liberis consuetudinibus
suis_.” Mr. Prothero suggests that this addition implies an advance on
the privileges secured in 1215:—"It is worth while to notice that the
words in which these liberties are stated in §35 of the charter of 1217
are considerably fuller and clearer than the corresponding declaration
in the charter of 1215."[832] It is safer to infer that no change was
here intended, but merely the removal of ambiguity. If there is a change
it is rather a contraction than an extension, making it clear that only
“free” tenements are protected, and excluding carefully the property of
villeins and even holdings of _villenagium_ (or unfree land) belonging
to freemen.[833] Care was thus taken to make it plain beyond any
reasonable doubt that no villein should have part or lot in rights
hailed by generations of commentators as the national heritage of all
Englishmen.[834]

-----

Footnote 830:

_Second Institute_, pp. 4, 27, and 45.

Footnote 831:

See _supra_, c. 20.

Footnote 832:

_Simon de Montfort_, 17, n. Cf. Blackstone, _Great Charter_, xxxvii.,
“the more ample provision against unlawful disseisins.”

Footnote 833:

Cf. Pollock and Maitland, I. 340, n.

Footnote 834:

Cf. _supra_, p. 142. Other verbal changes in the charter of 1217 show
the same care to exclude the villeins. _E.g._ c. 16 leaves the king’s
demesne villeins strictly “in his mercy,” that is, liable to
amercement without any reservation.

-----

IV. _Reactionary Side of these Provisions._ To insist rigorously that in
all cases a judgment of feudal peers, either in King’s Court or in Court
Baron, should take the place of a judgment by the officials of the
Common Bench and the King’s Bench, was to reverse one of the outstanding
features of the policy of Henry II. In this respect, the present chapter
may be read in connection with chapter 34. The barons, indeed, were not
strict logicians, and probably thought it prudent to claim more than
they intended to enforce.[835] Yet a real danger lurked in these
provisions; the clause was, after all allowance has been made, a
reactionary one, tending to the restoration of feudal privileges and
feudal jurisdictions, inimical alike to the Crown and to the growth of
really popular liberties. John promised that feudal justice (as before
the reforms of his father) should be dispensed in feudal courts; and, if
this promise had been kept, the result would have been to check the
development of the small committees destined to become at no distant
date the Courts of King’s Bench and Common Pleas, and to revive the
fast-waning jurisdictions of the manorial courts on the one hand and of
the _commune concilium_ on the other.[836]

-----

Footnote 835:

Mr. G. H. Blakesley in an able article in the _Law Quarterly Review_,
V. 125, goes so far as to reduce the entire chapter to an attempt to
protect feudal justice in its struggle with royal justice. "It may
reasonably be suspected that cap. 39 also was directed merely to
maintain the lord’s court against Crown encroachments."

Footnote 836:

Mr. Pike, _House of Lords_, 170–4, shares this view of the reactionary
nature of the clause, although he considers that the claim to
_judicium parium_ by a Crown tenant might be satisfied by the presence
of one or more fellow barons among the judges of the “Benches,” and
did not necessarily involve a full meeting of the _commune concilium_
summoned in the accustomed way. _Ibid._, p. 204. If the “judgment” of
the full court was requisite (and, in spite of the high authority of
Mr. Pike, there is much to be said for that contention), then the
reactionary feudal tendency is even more prominent. This feudal
tendency is emphasized by the consideration that private franchises
and private castles bulked prominently among the rights of property
protected from arbitrary seizure by the king.

-----

V. _The Genesis of the Chapter._ The interpretation here given of this
famous chapter is emphasized by a comparison of its words with certain
earlier documents and events. The reigns of Richard and John furnish
abundant examples of the abuses complained of. In 1191 Prince John, as
leader of the opposition against his brother’s Chancellor, William
Longchamp, concluded a treaty protecting himself and his allies from the
very evils which John subsequently committed against his own barons. The
words of this treaty of 1191 admirably bring out what Richard’s barons
sought to secure, and what they sought to escape. Longchamp conceded in
Richard’s name that the bishops and abbots, earls and barons,
“vavassors” and free-tenants, should not be disseised of their lands and
chattels at the will of the justices or ministers of the king, but that
they should be dealt with by judgment of the king’s court according to
the lawful customs and assizes, or by the king’s command.[837] The
magnates were not to be judged by officials whom they despised as their
social inferiors and mistrusted as the paid instruments of royal
tyranny; their claim to be tried by their equals in the king’s court was
granted.

-----

Footnote 837:

See R. Hoveden, III. 136. This truce, which was dated 28th July, 1191,
had been brought about by the mediation of the archbishop of Rouen and
of certain of the English prelates.

-----

Now, the main subject of the arbitration, ending in the treaty from
which this excerpt has been taken, was the custody of certain castles
and estates. After the right to occupy each separate castle in dispute
had been carefully determined, provision was then made, in the general
words cited above, against this arrangement being disturbed without a
judgment of the _curia regis_. Disseisin, and particularly disseisin of
castles, was thus in 1191, as in 1215, a topic of special prominence.

Early in 1213 the king attempted to take vengeance upon his opponents in
a manner which they are not likely to have forgotten two years later at
Runnymede, and which probably influenced the wording of the present
chapter. John, resenting bitterly the attitude of the northern barons
who had refused alike to accompany him to Poitou and to pay scutage,
determined to take the law into his own hands. Without summoning his
opponents before a _commune concilium_ of his feudal tenants, without
even a trial and sentence by one of his Benches, without making any
effort to investigate the justice or injustice of their pleas for
refusing, he set out with an army to punish them. He had gone as far
north as Northampton on his mission of vengeance when he was overtaken
by the archbishop of Canterbury, a strong advocate of conciliation. On
28th August, 1213, Stephen Langton persuaded the king to defer forcible
proceedings _until he had obtained a legal sentence_ in a formal
_Curia_.[838] That John once again threatened recourse to violent
methods may be safely inferred from the words of a letter patent issued
in May, 1215, when both sides were armed for war. He proposed
arbitration, and promised a truce until the arbitrators had given their
award. The words of this promise are notable; since, not only do they
illustrate the procedure of August, 1213, but they agree closely with
the clause of Magna Carta under discussion. The words are:—“Know that we
have conceded to our _barons_ who are against us, that we shall not take
or disseise them or their men, nor shall we go against them _per vim vel
per arma_, unless by the law of our kingdom, or by the judgment of their
peers _in curia nostra_.”[839] Magna Carta repeats this concession in
more general terms, substituting “freemen” for the “barons” of the
writ—an alteration which necessitated the omission from the charter of
the concluding words of the writ, “_in curia nostra_”; because the peers
of freemen, other than barons, would be found, not among the barons in
the king’s court, but among the freeholders in the court baron.[840]

-----

Footnote 838:

Cf. _supra_, p. 35.

Footnote 839:

The writ is dated 10th May, 1215, and appears in _New Rymer_, I. 128.

Footnote 840:

Magna Carta also omits as unnecessary “_per vim et arma_,” though the
Articles of the Barons had contained the word “_vi_.”

-----

The words of Magna Carta, taken in connection with the treaty of 1191
and the writ of 1213, are thus seen to have a narrower meaning than that
extracted from them by subsequent commentators.

VI. _Later History of “Judgment of Peers.”_ The claim made by the barons
at Runnymede was re-asserted in somewhat varying forms by the same
barons or by their descendants on many subsequent occasions. The
“_judicium parium_” was destined to enjoy a long and brilliant career,
and the interpretations put upon it by the Crown and by the opposition
respectively, while interesting in themselves, afford strong
confirmation of the somewhat restricted estimate of the scope of the
present chapter, which has been above enunciated.

(1) _The baronial contention._ The earls and barons, throughout the
reign of John’s unhappy son, attempted to place a broad interpretation
on the privilege secured to them by this chapter—claiming that all
pleas, civil and criminal (such at least as were raised against them at
the instance of the Crown) should be tried by their fellow earls and
barons, and not by professional judges of lower rank.

(2) _The royal contention._ The Crown, on the other hand, while not
openly infringing the charter, tried to narrow its scope. The judges
appointed by the king to determine pleas _coram rege_, no matter what
their original status might be, became (so the Crown argued) by such
appointment, the peers of any baron or earl. This doctrine was
enunciated in 1233 when Henry III. and his justiciar, Peter des Roches,
denounced Richard, Earl Marshal, as a traitor, in a meeting
(_colloquium_) of Crown tenants held at Gloucester on 14th August of
that year. Thereafter, “_absque judicio curiae suae et parium suorum_,”
as Matthew Paris carefully relates,[841] Henry treated earl Richard and
his friends as outlaws, and bestowed their lands on his own Poitevin
favourites. An attempt was made, at a subsequent meeting held on 9th
October, to have these proceedings reversed on the ground, already
stated, that they had taken place _absque judicio parium suorum_.

-----

Footnote 841:

_Chron. Maj._, III. 247-8.

-----

The sequel makes clear a point left vague in Matthew’s narrative: there
had been a judgment previous to the seizure, but only a judgment of
Crown officials _coram rege_, not of earls and barons in the _commune
concilium_. The justiciar defended the action of the government by a
striking argument: “there were no peers in England, such as were in the
kingdom of France,” and, therefore, John might employ his justices to
condemn all ranks of traitors.[842] Bishop Peter was here seeking to
evade the provisions of Magna Carta without openly defying them, and his
line of argument was that the king’s professional judges, however lowly
born, were the peers of an English earl or baron.[843] Neither the royal
view nor the baronial view entirely prevailed. A distinction, however,
must be drawn between criminal and civil pleas.

-----

Footnote 842:

M. Paris, _Ibid._, III. 251-2.

Footnote 843:

Pollock and Maitland, I. 393, hesitate to condemn this argument. "The
very title of the ‘barons’ of the Exchequer forbids us to treat this
as mere insolence." Dr. Stubbs has no such scruples: “The Bishop
replied contemptuously, and with a perverse misrepresentation of the
English law” (_Const. Hist._, II. 49). Elsewhere he makes him, not so
much contemptuous, as ill-informed of the law—“ignorant blunder as it
was” (II. 191). Yet Bishop Peter had presumably a more intimate
knowledge of the law he administered as justiciar in 1233 than any
modern writer can have. In the matter of amercements, at least, the
barons of the exchequer acted as the peers of earls and barons.

-----

(3) _Criminal pleas._ Offenders of the rank of barons partially made
good their claim to a trial by equals; while all other classes failed. A
further distinction is thus necessary. (_a_) _Crown tenants._ The
conflicting views held by king and baronage here resulted in a
compromise. In criminal pleas, the Crown was obliged to recede from the
high ground taken by Peter des Roches in 1233. Unwillingly, and with an
attempt to disguise the fact of surrender by confusing the issue,
Bracton in theory and Henry III. in practice admitted part of the
barons’ demand, namely, “that in cases of alleged treason and felony,
when forfeiture or escheat was involved, they should be judged only by
earls and barons.”[844] This concession was by no means based on the
broad ground taken by the Charter. Bracton does not admit that the
king’s justices were not “peers” of barons; but deduces their disability
from the narrower consideration that the king, through his officials,
ought not to be judge in his own behalf, since his interests in escheats
might bias his judgment. This is the reason why, from Bracton’s day to
our own, “the privilege of peers,” which gradually assumed its modern
form, has never extended to misdemeanours, since such convictions never
involved forfeiture or escheat to the Crown.

-----

Footnote 844:

Pike, _House of Lords_, 173. See also Bracton, f. 119; Pollock and
Maitland, I. 393.

-----

The manner of giving effect to this concession is noteworthy. The
_judicium parium_ was secured to earls and barons in later reigns, not
merely by giving seats on the judicial bench to a few holders of
“baronies,” but by bringing the case before the entire body of earls and
barons in _commune concilium_. What the barons got at first was
“judgment” by peers. The actual “trial” was the “battle,” the
fellow-peers acting as umpires and enforcing fair play.[845] Although
new modes of procedure came to prevail, the Court of Peers continued its
control, and the _judgment_ of peers gradually passed into the modern
_trial_ by peers.[846] The subject has been further complicated by the
gradual growth of the modern conception of a “peerage,” embracing
various grades of “nobles.” In essentials, however, the rights of a
baron (or of any magnate of higher grade) accused of crime have remained
unchanged from the days of Henry III. to our own. The privilege of
“trial by peers,” whatever the reason underlying it, still extends to
treason and felony, and is still excluded from misdemeanours. When
competent it still takes place before a "Court of Peers"—namely, the
House of Lords if Parliament is in session, and the Court of the Lord
High Steward if not. Petty offences committed by peers, like those
committed by commoners, come before the ordinary courts of law. Under
these limitations, then, the privilege of a peer to be tried only in the
House of Lords (or in the Court of the Lord High Steward) has been for
centuries a reality in England for earls and barons, and also for
members of those other ranks of the modern “peerage” unknown in
1215—dukes, marquesses, and viscounts.[847]

-----

Footnote 845:

“The trial, therefore—the ascertaining of the fact—was, though under
the direction and control of the Court of Peers, by battle; but the
judgment on the trial by battle was to be given by the peers.” Pike,
_House of Lords_, 174.

Footnote 846:

Pike, _Ibid._, 174–9.

Footnote 847:

The privilege was extended to peeresses by the statute 20 Henry VI. c.
9.

-----

(_b_) _For tenants of a mesne lord_, however, no similar privilege has
been established, even in a restricted form. In charges of felony, as in
those of misdemeanour, all freemen outside the peerage are tried, and
have been tried for many centuries past, in the ordinary courts of law.
There is no privileged treatment for the knight or the landed gentleman.
All are judged in the same tribunals and by the same procedure. Private
feudal courts never recovered from the wounds inflicted by Henry II. The
clauses of Magna Carta which sought to revive them were rendered
nugatory by legal fictions or simply by neglect.

(4) _Civil pleas._ Various attempts were made by the barons as a class,
or by its influential members, to make good a claim to _judicium parium_
in civil cases.[848] The chief anxiety, perhaps, of the men of 1215 was
to save their estates and castles from disseisin consequent on such
pleas. Yet the barons’ efforts in this direction were entirely
unsuccessful. The House of Lords (except in cases involving the dignity
or status of a peer) has never claimed to act as a court of first
instance in civil cases to which a peer was a party. Noble and commoner
are here perfectly on a level. No “peer of the realm” has for many
centuries asked to plead before a special court of his peers in any
ordinary non-criminal litigation, whether affecting his real or his
personal estate.

-----

Footnote 848:

The Earl of Chester claimed it in 1236-7, and the Earl of Gloucester
(in a special form as a lord marcher) in 1281. See Pollock and
Maitland, I. 393, n.

-----

VII. _Erroneous Interpretations._ The general tendency to vagueness and
exaggeration has already been incidentally discussed. Two mistakes of
unusual persistence require more detailed notice.

(1) _The identification of_ judicium parium _with trial by jury_. The
words of the present chapter form the main, if not the sole, ground on
which this traditional error has been based.[849] The mistake probably
owes its origin to a not unnatural tendency of later generations of
lawyers to explain what was unfamiliar in the Great Charter by what was
familiar in their own experience. They found nothing in their own day to
correspond with the _judicium parium_ of 1215, so far at least as
affected those who were not Crown tenants; they found nothing in Magna
Carta (unless it were this clause) to correspond with their own trial by
jury: therefore they identified the two, interpreting the present
chapter as a general guarantee of the right to trial by jury.[850] Mr.
Reeves, Dr. Gneist, and other writers long ago exposed this error, but
the most conclusive refutations are those recently given by Prof.
Maitland and Mr. Pike. The arguments by which these writers prove that
“judgment by peers” is one thing and the “verdict of a jury” quite a
different thing are of a somewhat technical nature;[851] but as their
importance is far-reaching they must be explained, however briefly. They
seem to be mainly three in number:

-----

Footnote 849:

Cf. _supra_, pp. 158-163.

Footnote 850:

The erroneous identification of judgment of peers with trial by jury
can be found far back in legal history. Pollock and Maitland, II.
622-3, n., trace it to within a century of Magna Carta. "This mistake
is being made already in Edward I.’s day; Y. B. 30-1 Edward I., p.
531.“ In spite of modern research the error dies hard. It appears,
_e.g._, in Thomson, _Magna Charta_, 223, and in Taswell-Langmead,
_Const. Hist._, 110. It was repeated only the other day by so high an
authority as Dr. Goldwin Smith in his recently published work, ”_The
United Kingdom_," I. 127, where he maintains that chapter 39 of Magna
Carta “affirms the right of trial by jury.”

Footnote 851:

Pollock and Maitland, I. 152, n., and Pike, House of Lords, 169.

-----

(_a_) The criminal petty jury cannot here be intended, since it had not
been invented in 1215:[852] to introduce trial by jury into John’s great
Charter is an unpardonable anachronism. (_b_) The barons would have
repudiated trial by jury if they had known it. They desired (here as in
chapter 21) that all questions affecting them should be “judged” before
fellow barons, and in the normal case, by the _duellum_. They would have
scorned to submit to the verdict of “twelve good men” of their own
locality. Their inferiors must have no voice in determining their guilt
or innocence. This sentiment was shared by the tenants of mesne lords.
(_c_) _Judgment_ and _verdict_ were essentially different. The function
of a petty jury (after it _had_ been invented) was to answer the
specific question put to it. The insurgent barons demanded more than
this: they asked a decision on the whole case.[853] The “peers” who
judged presided over the proceedings from beginning to end, appointing
the proof they deemed appropriate, sitting as umpires while its
fulfilment was essayed, and giving a final decision as to success or
failure therein.

-----

Footnote 852:

Cf. _supra_, p. 161.

Footnote 853:

Cf. Pike, _Ibid._, 169. “From the time when trial by jury first
commenced, either in civil or in criminal cases, to this present end
of the nineteenth century, no jury ever did or could give judgment on
any matter whatsoever.” The difference between the ancient and modern
conceptions of judgment, however, must not be lost sight of.

-----

(2) _Magna Carta and arbitrary commitment._ A second erroneous theory
has still to be discussed. The Petition of Right, as already stated,
treats Magna Carta as prohibiting the Crown from making arrests without
a warrant showing the cause of detention; and the earlier commentators
further interpreted it as making all acts of arbitrary imprisonment by
the Crown absolutely illegal, although strong reasons of state might
urge the detention of dangerous individuals. Hallam, for example,
declares that from the era "of King John’s Charter, it must have been a
clear principle of our institutions that no man can be detained in
prison without trial." Yet every king of England from the days of John
Lackland to those of Charles Stewart, claimed and exercised the
prerogative of summarily committing to gaol any man suspected of evil
designs against the Crown or Commonwealth. Strong kings used this power
freely to remove those whom they wished to silence. Frequently no cause
of arrest was mentioned, no explanation given, except the words "by the
king’s command." During all these centuries the legality of such
procedure was never challenged as contrary to Magna Carta, or on any
other ground. Even the famous protest of the judges of Queen Elizabeth,
asserting the existence of legal limits to the royal prerogative of
commitment, proves the lawfulness of the general practice to which it
makes comparatively insignificant exceptions. Such rights inherent in
the Crown, dangerous undoubtedly to liberty but yet perfectly legal,
were never seriously challenged until the struggle between Charles I.
and his parliaments had fairly begun. Then it was that old precedents
were eagerly sought out and put to new uses. Then only was it suggested,
for the first time, that Magna Carta was intended to prohibit arbitrary
commitments at the command of the Crown. Such was the argument
deliberately put forth in 1627 during the famous proceedings known
sometimes as Darnell’s case and sometimes as the case of the Five
Knights. Heath, the Attorney-General, easily repelled this contention:
“the law hath ever allowed this latitude to the king, or his privy
council, which are his representative body, in extraordinary cases to
restrain the persons of such freemen as for reasons of state they find
necessary for a time, without for this present expressing the causes
thereof.”[854] The parliamentary leaders, however, too grimly in earnest
to be deterred by logic, were far from abandoning their error because
Heath had unanswerably exposed it. They embodied it, on the contrary, in
the Petition of Right, which condemned the Crown’s practice of
imprisoning political offenders “without any cause showed” (or only _per
speciale mandatum regis_) as contrary to the tenor of Magna Carta—an
effective contention as a political expedient, but essentially unsound
in law.

-----

Footnote 854:

See _State Trials_, III., p. 1, and S. R. Gardiner, _History_, VI.
214.

-----

CHAPTER FORTY.

Nulli vendemus, nulli negabimus, aut differemus, rectum aut justiciam.

To no one will we sell, to no one will we refuse or delay, right or
justice.

This chapter, like the preceding one with which it is so closely
connected, has had much read into it by commentators which would have
astonished its original framers. The application of modern standards to
ancient practice has resulted in a complete misapprehension. The sums
customarily received by John, as by his predecessors, at every stage of
legal procedure, were not necessarily the wages of deliberate injustice.
This is evident from several considerations. Thus litigants paid fines
for redress against the Crown itself; in disputes between two private
parties, the sum offered by the highest bidder was by no means always
accepted; sometimes justice was rendered to one litigant gratis in spite
of a heavy offer by the other. Many payments, then, were not bribes to
an unjust judge, but merely expedients for hastening the law’s delays,
or to ensure a fair hearing for a good plea, or to obtain some unusual
but not unfair expedient, such as a peculiarly potent writ or the
hearing of a case in the exchequer, which would ordinarily have been
tried elsewhere. If the royal courts charged higher rates for justice
than the feudal courts, they supplied a better article. When Henry of
Anjou threw open the doors of his court to all freemen who chose to pay
for writs, he found a ready market. These writs differed widely in
price. Some from an early date were issued whenever applied for (writs
_de cursu_) and at a fixed sum: others were granted only as marks of
favour or after a bargain had been struck. Specially quick or cogent
procedure had to be specially paid for. It would thus appear that the
system of John was not open to the unqualified and violent condemnation
which it usually receives. Hallam’s language is too sweeping when he
says: “A law which enacts that justice shall neither be sold, denied,
nor delayed, stamps with infamy that government under which it had
become necessary.”[855] It was John’s abuse of the system, not the
system itself, which called for condemnation; and the worst that could
be said against it, according to medieval standards, was that it lent
itself too readily to abuse.

-----

Footnote 855:

_Middle Ages_, II. 451.

-----

If the barons really desired that John should continue to dispense royal
justice in the new fields occupied by his father, but should do so
without pecuniary return, their demands were unfair and even absurd; but
probably they only wished a strict adherence to the customary rules and
charges which they had come to expect as normal in connection with royal
tribunals. The system, indeed, has many objectionable features to modern
critics; but in the twentieth century, as in the thirteenth, justice
cannot be had for nothing; and the would-be litigant with a good claim
but a slender purse will be well advised to acquiesce in a small loss
rather than incur the certainty of losing as much again in
extra-judicial outlays, and the risk of losing many times more in the
judicial expenses of a protracted litigation. The lack of free justice
is a reproach which the men of to-day cannot with good grace fling at
the administration of John.

As the evils complained of are often exaggerated, so also are the
reforms promised by this chapter of Magna Carta. John is usually held to
have agreed to the abolition of payments of every sort for judicial
writs and other fees of court. Justice, unlike other valuable
commodities, was, it would appear, to be obtained for nothing—an ideal
never yet attained in any civilized community. A body of highly trained
clerks could not be kept by the king to issue writs gratuitously to all
who asked them, and a staff of judges, “who knew the law and meant to
keep it,” to determine pleas which would bring in no return to the
Crown.

The intention of those who framed this chapter was probably to secure a
more moderate and reasonable measure of reform. Abuses of the system
were to be redressed.[856] Unfortunately it was not easy to define
abuses—to determine where legitimate payments stopped and illegitimate
ones began. Prohibitive prices ought not to be charged for writs _de
cursu_; but was the Crown to have no right to issue writs of grace on
its own terms? Plaintiffs who had any special reason for haste
frequently paid to have their suits heard quickly: was that an
abuse?[857]

-----

Footnote 856:

Cf. Madox, I. 455, "By _nulli vendemus_ were excluded the excessively
high fines: by _nulli negabimus_, the stopping of suits or
proceedings, and the denial of writs: by _nulli differemus_ such
delays as were before wont to be occasioned by the counterfines of
defendants (who sometimes would outbid the plaintiffs) or by the
prince’s will."

Footnote 857:

Fines for this purpose were frequent under Henry II. and his sons.
Madox, I. 447, cites many examples. Thus in 1166 Ralph Fitz Simon paid
two marks “for speeding his right” (_pro recto suo festinando_). The
practice continued under Henry III. in spite of Magna Carta. Bracton’s
_Note Book_ cites a hard case (No. 743): Henry III. was claiming
prerogative wardship where it was illegal under c. 37 of Magna Carta
(_q. v._). The court might have delayed hearing the mesne lord’s plea
until the wardship was ended; but he paid five marks _pro festinando
judicio suo_. The fine was said to be given “willingly” (_sponte_).
Did the use of this word make possible an evasion of c. 40 of the
Charter?

-----

Whatever the intention may have been, the practical effect of the clause
was _not_ to secure the abolition of the sale of writs and justice. The
practice under Henry III. has been described by our highest authority.
"Apparently there were some writs which could be had for nothing; for
others a mark or a half-mark would be charged, while, at least during
Henry’s early years, there were others which were only to be had at high
prices. We may find creditors promising the king a quarter or a third of
the debts that they hope to recover. Some distinction seems to have been
taken between necessaries and luxuries. A royal writ was a necessary for
one who was claiming freehold; it was a luxury for the creditor exacting
a debt, for the local courts were open to him and he could proceed there
without writ. Elaborate glosses overlaid the king’s promise that he
would sell justice to none, for a line between the price of justice and
those mere court fees, which are demanded even in our own day, is not
easily drawn. That the poor should have their writs for nothing, was an
accepted maxim."[858]

Probably the practice before and after 1215 showed few material
differences. Some of the more glaring abuses of the system were checked:
that was all.[859] Parliament in subsequent reigns had frequently to
petition against the sale of justice in breach of Magna Carta.[860] The
king usually returned a politic answer, but was careful never to
surrender his right to exact large sums for writs of grace. Richard II.,
for example, replied: “Our lord the king does not intend to divest
himself of so great an advantage, which has been continually in use in
Chancery as well before as after the making of the said charter, in the
time of all his noble progenitors who have been kings of England.”[861]

-----

Footnote 858:

Pollock and Maitland, I. 174. Cf. _Ibid._, II. 204, and authorities
cited.

Footnote 859:

Madox, I. 455, says: “And this clause in the great Charters seems to
have had its effect. For ... the fines which were paid for writs and
process of law were more moderate after the making of those great
Charters than they used to be before.”

Footnote 860:

Instances are collected by Sir T. D. Hardy in _Rot. de oblatis_, p.
xxi. See also Stubbs, _Const. Hist._, II. 636-7.

Footnote 861:

_Rot. Parl._, III. 116, cited Stubbs, _Const. Hist._, II. 637.

-----

It is thus evident that Magna Carta did not put down the practice of
charging heavy fees for writs. Yet this chapter, although so frequently
misunderstood and exaggerated, is still of considerable importance. It
marks, for one thing, a stage in the process by which the king’s courts
gradually outdistanced all rivals. In certain provinces, at least, royal
justice was left in undisputed possession. In these the grievance was
not that there was too much royal justice, but that it was sometimes
delayed or denied. Here, then, even in the moment of John’s most bitter
humiliation we find evidence of the triumph of the policy of the Crown
inaugurated half a century earlier by his far-seeing father.

It is not to such considerations as these, however, that this chapter
owes the prominence usually given to it in legal treatises; but rather
to the fact that it has been broadly interpreted as a universal
guarantee of impartial justice to high and low; and because when so
interpreted it has become in the hands of patriots in many ages a
powerful weapon in the cause of constitutional freedom. Viewing it in
this light, Coke throws aside his crabbed learning and concludes with
what is rather a rhapsody than a lawyer’s commentary: “as the gold-finer
will not out of the dust, threads, or shreds of gold, let pass the least
crumb, in respect of the excellency of the metal; so ought not the
learned reader to pass any syllable of this law, in respect of the
excellency of the matter.”[862]

-----

Footnote 862:

_Second Institute_, 56.

-----

CHAPTER FORTY-ONE.

Omnes mercatores habeant salvum et securum exire de Anglia, et venire in
Angliam, et morari et ire per Angliam, tam per terram quam per aquam, ad
emendum et vendendum, sine omnibus malis toltis, per antiquas et rectas
consuetudines, preterquam in tempore gwerre, et si sint de terra contra
nos gwerrina; et si tales inveniantur in terra nostra in principio
gwerre, attachientur sine dampno corporum et rerum, donec sciatur a
nobis vel capitali justiciario nostro quomodo mercatores terre nostre
tractentur, qui tunc invenientur in terra contra nos gwerrina; et si
nostri salvi sint ibi, alii salvi sint in terra nostra.

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.

Merchants and merchandise, like all other classes and interests, had
suffered severely from John’s greed, unrestrained by regard for the
rights of others. The control of commerce was specially reserved for the
king’s personal supervision. No law or traditional usage trammelled him
in his dealings with foreign merchants, who were dependent on royal
favour, not on the law of the land, for the privilege of trading and
even for personal safety. No alien merchant could enter England or leave
it, nor take up his abode in any town, nor move from place to place, nor
buy and sell, without paying heavy tolls to the king. This royal
prerogative proved a profitable one.[863]

-----

Footnote 863:

So far all authorities are agreed, though a difference of opinion
exists as to the source of these prerogatives. Thus (_a_) Stephen
Dowell, _History of Taxation and Taxes in England_, I. 75, considers
that the duties on imports and exports were in their origin of the
nature of voluntary dues paid by foreign merchants in return for
freedom of trade and royal protection; (_b_) Hubert Hall, _Customs
Revenue of England_, I. 58-62, considers the prerogative as merely one
aspect of purveyance, that is of the right of the king to requisition
what he required for his own needs and those of his household. Many
such “theories” are anachronisms. The prerogative was founded on
fact—on the brute force at the Crown’s disposal. Kings took what they
could, and left future ages to invent theories to justify or explain
their actions.

-----

John increased the number and amount of such exactions, to the detriment
alike of foreign traders and of their customers. Magna Carta, therefore,
sought to restrain this branch of prerogative, forbidding him to exact
excessive tolls for removing obstacles of his own creating. This
benefited the merchants by securing to them certain rights, which may
perhaps be analysed into three: safe-conduct, that is protection of
their persons and goods from violence; liberty to buy and sell in time
of peace; and a confirmation of the ancient and just rates of “customs,”
with the abolition of John’s “evil tolls” or additional exactions.

So far, the general purport of the enactment is undoubted; but
discussions have arisen on several important points, such as the
nationality of the traders in whose favour it was conceived; the exact
nature of the “evil tolls” abolished; the motives for the rules
enforced; and the relations between denizens and foreign traders.

I. _Magna Carta favours alien Merchants._ The better opinion would seem
to be that this chapter applied primarily to foreign traders from
friendly states. Attempts have been made, indeed, to argue otherwise,
namely, that denizens were to benefit equally with strangers, Magna
Carta holding the balance even between them. Such was the purport of a
learned discourse delivered in the House of Commons by William Hakewill,
Barrister of Lincoln’s Inn, in 1610, during the debate on John Bate’s
case.[864] His main argument was that certain statutes of the reign of
Edward III.,[865] in seeking to confirm and expand the provisions of
Magna Carta, did clearly embrace denizens as well as aliens. Yet the
framers of an Act in the fourteenth century may well have misunderstood
the tenor of John’s Charter, or may have deliberately altered it.

-----

Footnote 864:

See _State Trials_, II. 407-475, and especially 455-6.

Footnote 865:

_E.g._ 2 Edward III. c. 9 and 14 Edward III., stat. 1, c. 21.

-----

Intrinsic and extrinsic evidences combine to create a strong presumption
that Magna Carta referred chiefly, perhaps exclusively, to merchants of
foreign lands.[866] Denizens trading in England did not require those
“safe conducts” which form the chief concession in this chapter; and
their rights of buying and selling were already protected in another
way; for independent traders were unknown, all merchants being banded
into guilds in the various towns whose privileges (“_omnes libertates et
liberas consuetudines_”) were guaranteed to them in a previous part of
the great Charter.[867] It was the alien merchants who required special
protection, since they had, strictly speaking, no status in the eye of
the law, and held their privileges from the king, who, moving along the
line of least resistance, frequently preferred to overtax them rather
than his own subjects.[868] The Crown might vouchsafe the protection
they needed either willingly or grudgingly, and under conditions to be
altered at discretion, but never unless well paid for. The policy of
Henry II. and his sons was to favour merchant strangers, but to exact in
return the highest dues possible, restrained only by an enlightened
self-interest which stopped short at the point where trade would
languish by becoming unprofitable. The Exchequer Rolls and the Patent
Rolls afford many illustrations of how individual traders or families
made private bargains with the Crown for trading privileges. In 1181
Henry obtained two falcons for granting leave to export corn to Norway.
In 1197, a certain Hugo Oisel owed 400 marks for licence to trade in
England and in Richard’s other lands in time of war as well as of
peace.[869]

-----

Footnote 866:

Two-thirds of the chapter is occupied in explaining that merchant
strangers of unfriendly States are not to benefit from it. Mr.
Hakewill was aware of this, but sought to evade the natural inference
by subtleties which are not convincing.

Footnote 867:

See _supra_, under c. 13.

Footnote 868:

For the legal position of aliens, see Pollock and Maitland, I.
441-450.

Footnote 869:

See _Pipe Rolls_, 27 Henry II. and 8 Richard I., cited Madox, I.
467-8.

-----

At the commencement of John’s reign, traders resident in England seem
collectively to have obtained confirmation of their privileges. That
king issued Letters Patent to the Mayor of London, to the magistrates of
many smaller towns, and to the sheriffs of the southern counties of
England, directing them, in terms closely resembling those of Magna
Carta, to allow to all merchants of whatsoever land safe coming and
going, with their wares.[870]

-----

Footnote 870:

See _Rot. Chart._, 60 (5th April, 1200).

-----

These arrangements were merely temporary. John did not intend that any
such general grant should prevent him from exacting further payments
from individuals as occasion offered. For example, Nicolas the Dane
promised a hawk each time he entered England, that he might come and go
and trade “free of all customs which pertain to the king.”[871] Such
customary dues, at the usual rates, were not abolished by the Charter,
but only the arbitrary additional payments for which there was no
warrant.

-----

Footnote 871:

See _Pipe Roll_, 6 John, cited Madox, I. 469, where other
illustrations will be found. Cf. also _Rot. Pat._, 170. 170_b_, 171,
172_b_.

-----

On this point, then, Magna Carta contained no innovations, and the same
is true of its provision for reprisals against traders from lands where
English merchants were ill-treated. On the outbreak of war the Charter
directs that merchants of the enemy’s nation should be detained until
the king ascertained how his own subjects were treated in the enemy’s
territory. This is merely declaratory of the previous practice, of which
an illustration may be found in the terms of a writ of August, 1214,
which directed the bailiffs of Southampton to detain all Flemings and
their goods pending further instructions.[872] There were thus
precedents for those rules for foreign traders, which have aroused the
admiration of Montesquieu.[873]

-----

Footnote 872:

In the same writ John bade them allow to depart freely all vessels of
the land of the Emperor or of the King of Scotland after taking
security that they would sail straight to their own countries and take
with them none but their own crews. See _Rot. Claus._, I. 211, and cf.
series of writs in I. 210.

Footnote 873:

See _De l’Esprit des Lois II._ 12 (ed. of 1750, Edinburgh), “_La
grande chartre des Anglois défend de saisir et de confisquer en cas de
guerre les merchandises des négociants étrangers, à moins que ce ne
soit par représailles. Il est beau que la nation Angloise ait fait de
cela un des articles de sa liberté!_”

-----

II. _Customs and Tolls._ “_Consuetudines_” is in this passage used in
its narrower financial sense, relating to those duties on imports and
exports which are still specially called “customs” at the present day,
and to various local dues as well. “Tolls” when not stigmatized as “evil
tolls” would seem to be practically synonymous with these customs. The
Crown had at first taken from the defencelessness of merchants,
whatever, on each occasion, it thought fit. Practice soon established
rules as to the normal rates considered fair in various circumstances.
When a ship-load of foreign wine arrived, the normal toll was “one cask
from a cargo of ten up to twenty casks, and two casks from a cargo of
twenty or more.”[874] From other merchandise a share was claimed of a
fifteenth or sometimes a tenth of the whole. Such tolls, if originally a
species of blackmail, had in John’s day come to be regarded as a
legitimate branch of royal revenue. Any arbitrary increase, however, was
condemned by public opinion, and ultimately by Magna Carta, as a “_mala
tolta_.”

-----

Footnote 874:

S. Dowell, _Hist. of Taxation_, I. 83, citing Madox, I. 525-9 [2nd ed.
I. 765-770], and _Liber Albus_, I. 247-8.

-----

It must be remembered, however, that the king was not the only one who
exacted tolls. Every town in England, and many feudal magnates, by
prescriptive usage or by royal grant, levied payments on all goods
bought or sold at various fairs and markets, or that entered the city
gates, or were unloaded at river wharves, or traversed certain roads.
The ambition of every borough was to increase its own franchises at the
expense of its neighbours. The free customs of Bristol, for example,
meant not only that the men of that city should have freedom from tolls
inflicted by others, but that they should have the right to inflict
tolls upon those others. A whole network of such customs and
restrictions impeded the free exchange of commodities in every part of
England. Magna Carta had no intention of sweeping these away, so far as
they were “just and ancient”; and it is probable that the prohibition
against arbitrary increase of tolls was directed only against the Crown.

III. _The Motives prompting these Provisions._ It has been not unusual
to credit the framers of Magna Carta with a liberal policy of quite a
modern flavour; they are made free-traders and credited with a knowledge
of economic principles far in advance of their contemporaries. This is
an entire misconception: Englishmen in the beginning of the thirteenth
century had formulated no far-reaching theories of the rights of the
consumer, or the advantages of the policy of the open door. The home
traders were not consenting parties to this chapter, and would have
bitterly resented any attempt to place foreigners on an equal footing
with the protected guilds of the English boroughs. The barons, in
inserting this stipulation among the promises wrung from John, acted on
their own initiative and from purely selfish motives. The rich nobles,
both lay and ecclesiastic, desired that nothing should prevent the
foreign rivals of the insular burghers from importing the wines and rich
apparel which England could not produce. John, indeed, as a consumer of
continental luxuries, partially shared their views, but his
short-sighted policy threatened to strangle foreign trade by gradually
increasing the burdens attached to it, until it ceased to be
remunerative. The barons, therefore, in their own interests, not in
those of the foreign merchants, still less in those of native traders,
demanded that the custom duties should remain at their old fixed rates.
In adopting this attitude, they showed their selfish indifference to the
equally selfish claims of English traders, who, jealous of foreigners
alike in their home markets and in the carrying trade, desired a
monopoly for themselves. Every favour shown to foreign merchants was an
injury done to the guilds of the chartered boroughs. This chapter thus
shows a lack of gratitude on the barons’ part for the great service
rendered to their cause by their allies, the citizens of London. John,
on the other hand, would have little reluctance in punishing the men of
his capital who, with the ink scarce dry on their new municipal charter,
had not scrupled to desert his cause.[875] It must have been with grim
pleasure that, on 21st July, 1215, in strict conformity with the tenor
of Magna Carta, he addressed a writ to King Philip inviting reprisals
upon London merchants in France in certain contingencies.[876]

-----

Footnote 875:

See _supra_, 41–2.

Footnote 876:

See _New Rymer_, I. 135: “Know that we have ordered the mayor and
sheriffs of London to allow merchants of your land to remove their
goods and chattels from London, without hindrance to doing thence
their will; and that if they do not, you may, if it please you, grieve
and molest the men of that town (_illius villae_) in your power,
without our reckoning it a breach of truce on your part.”

-----

In the reissue of 1216 the privileges conferred on merchant strangers
were confined to such as had not been “publicly prohibited beforehand.”
This was a material alteration, the effect of which was to restore to
the king full discretionary authority over foreign trade, since he had
only to issue a general proclamation, and then to accept fines for
granting exemption from its operation.

IV. _English Boroughs and Merchant Strangers._ The quarrel between home
and alien traders underwent many vicissitudes during several succeeding
centuries, the Crown taking now one side, and now the other, as its
pecuniary interests happened to dictate for the moment. No glimmerings
of the doctrine of free trade can be traced: the merchants of each town,
banded in their guilds, directed their endeavours towards securing
rights of exclusive trading for themselves. It is true that the men of
London were scarcely more jealous of the privileges of the citizens of
Rouen or of Paris than of those of York or of Lincoln; their ambition
was to inflict restrictions upon all rivals alike. The _Liber
Custumarum_, a compilation of the early thirteenth century, lays down
minute rules for the regulation of foreign traders in London. The
merchant stranger had to take up his abode in the house of some citizen.
He was strictly prohibited from engaging in retail trade and from
purchasing articles in process of manufacture. He could buy only from
those who had the freedom of the city, and could not re-sell the goods
within the borough walls. He was allowed to sell only to burgesses of
London, except on three specified days of the week. Such were a few of
the rules which the Londoners enforced on all traders within their
gates. The king, however, intermittently encouraged foreigners. Under
the fostering protection of Henry III., Lombards and Provençals settled
in considerable numbers in the capital; and with the connivance of the
king, infringed these rules. When the Londoners complained, Henry
refused relief. Their loyalty thus shaken, they sided with the king’s
opponents in the Barons’ War, and when the royalist cause triumphed at
Evesham, the capital shared in the punishment meted out to the Crown’s
opponents. Prince Edward in 1266 was nominated protector of foreign
merchants in England, whose cause was temporarily triumphant. At the
accession of that Prince, London bought itself back into royal favour
for the time being. At the same period an attempt was made to define
what tolls or customs might be taken by the Crown. In 1275, in Edward’s
first parliament, a tariff was fixed by “the prelates, magnates, and
communities at the request of the merchants” on most of what then formed
the staple exports of England: half a mark on every sack of wool, half a
mark on every three hundred wool-fells (that is, untanned skins with the
fleeces on), and one mark on every load of leather.

These were subsequently called _magna et antiqua custuma_, to
distinguish them from an additional fifty per cent., levied from foreign
merchants at a later date and known as _parva et nova custuma_. The
settlement of 1275 was by no means final. New disputes arose; and in
1285 Edward I. confiscated the liberties of London, suppressed what he
characterized as abuses, and favoured the aliens. In 1298 the franchises
of the capital were restored, and very soon the abuses complained of
began anew. Edward retorted in 1303 by a special ordinance known as the
_carta mercatoria_ in favour of their foreign rivals, by the terms of
which the provisions of the present chapter of Magna Carta became at
last a reality. This new charter, which was the result of a bargain
struck between the Crown and the alien traders, conferred various
privileges and exemptions in return for the increased rates of duty now
imposed and known henceforth as _parva et nova custuma_. Edward I. made
several attempts to exact the higher rates from denizens as well as from
strangers; but in this he failed. In 1309 a Petition of Parliament was
presented against the exaction of the “new customs,” declaring them to
be in contravention of Magna Carta.

In 1311 a temporary community of economic and political interests
resulted in an alliance between the English merchants and the English
baronage, whose combined efforts forced the “Ordinances” upon Edward
II., compelling him for a time to reverse his father’s policy of
favouring foreigners at the expense of native merchants. It is
unnecessary to follow the checkered fortunes of these Ordinances,
frequently enforced and as frequently abolished, according as the
fortunes of the barons or of Edward II. were for the moment in the
ascendant. During the reign of Edward III. the deep-rooted quarrel
between home and alien merchants continued; and many changes of policy
were adopted by the Crown. The statute of 1328 which abolished the
“staples beyond the sea and on this side” provided “that all merchant
strangers and privy may go and come with their merchandises into
England, after the tenor of the Great Charter.”[877] Seven years later
this was confirmed by an act which in considerable detail placed
strangers and denizens on an exact equality in all branches of trade,
both wholesale and retail, under the express declaration that no
privileged rights of chartered boroughs should be allowed to interfere
with its enforcement.[878] While this statute merely repeated and
applied the general doctrine of the present chapter of Magna Carta, it
directly infringed the provisions of chapter 13.[879] Such sweeping
regulations were in advance of their age and could not be carried out
without revolutionising the entire medieval scheme of trade and
commerce, which depended on merchant guilds, town charters and local
monopolies. The influence of the English boroughs and their political
allies was strong enough to make the strict enforcement of such
legislation impossible; and later statutes, bowing to the inevitable,
restored the privileges of the boroughs, while continuing to enunciate
an empty general doctrine of free trade to foreigners.[880] The English
boroughs, to which Parliament in the reign of Richard II. thus restored
their franchises and monopolies, were able effectually to exclude
foreign competition, in certain trades at least, from within their
walls, for four centuries, until the Statute of 1835 ushered in the
modern era of free trade.[881]

-----

Footnote 877:

2 Edward III. c. 9.

Footnote 878:

See 9 Edward III. c. 1 and cf. 25 Edward III., stat. 4, c. 7.

Footnote 879:

Cf. _supra_, pp. 290-1, where the inconsistency between the two parts
of the Great Charter is pointed out.

Footnote 880:

See 2 Richard II., stat. 1, c. 1 and 11 Richard II. c. 7.

Footnote 881:

See 5 and 6 William IV. c. 76, s. 14.

-----

CHAPTER FORTY-TWO.

Liceat unicuique de cetero exire de regno nostro, et redire, salvo et
secure, per terram et per aquam, salva fide nostra, nisi tempore gwerre
per aliquod breve tempus, propter communem utilitatem regni, exceptis
imprisonatis et utlagatis secundum legem regni, et gente de terra contra
nos gwerrina, et mercatoribus de quibus fiat sicut predictum est.

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.

The terms of this permission for free intercourse between England and
foreign lands are peculiarly wide, the exceptions being reasonable and
necessary. Prisoners obviously could not leave our shores, nor outlaws
return to them: the case of merchants from hostile states had already
been provided for in a liberal spirit; while the temporary restriction
of intercourse with the enemy on the outbreak of hostilities was
eminently reasonable.

Although the provision is thus quite general in its scope, embracing all
classes and ranks of men, it was peculiarly welcome to the clergy, as
enabling them without a royal permit to proceed to Rome, there to
prosecute their appeals or press their claims for preferment. Thus
considered, it contains a virtual repeal of article 4 of the
Constitutions of Clarendon of 1166, which forbade archbishops, bishops,
and parsons (_personæ_) of the kingdom to leave that kingdom without the
king’s licence. The grant of freedom of intercourse in 1215 thus opened
a door for the Church to encroach on the royal prerogative; and for that
reason it was omitted from the reissue of 1216, never to be replaced. A
boon was thus withdrawn from all classes from fear that it might be
abused by the ecclesiastics. Henry III. took advantage of the omission
in order to restrain the movements of clergy and laity alike. Those who
left the country without the royal licence had frequently to pay
fines.[882]

-----

Footnote 882:

_E.g._ Coke (_Third Institute_, p. 179) cites from _Rot. finium_ of 6
Henry III. and _Rot. claus._ of 7 Henry III. the following case:
“_Willielmus Marmion clericus profectus est ad regem Franciae sine
licentia domini regis, et propterea finem fecit_.” The practice had
apparently been much the same prior to Magna Carta. _E.g._ Madox (I.
3) cites from _Pipe Roll_ of 29 Henry II. how “_Randulfus filius
Walteri reddit compotum de XX marcis, quia exivit de terra Domini
Regis_.”

-----

The stringency with which this prerogative was at first enforced tended,
however gradually, to become more lax. The king still preserved the
right, but only exercised it by means of proclamations over particular
classes or on special occasions, the inference being that all not
actually prohibited were free to come and go as they pleased. Thus in
1352 Edward III. had it proclaimed throughout every county of England
that no earl, baron, knight, man of religion, archer, or labourer,
should depart the realm under pain of arrest and imprisonment.[883] The
fact that Edward found it necessary to issue such an ordinance,
autocratic and abhorrent to modern ideals as its terms now appear,
points to a decrease of royal power, as compared with that exercised by
Henry II., John, or Henry III. A further curtailment of prerogative may
be inferred from the terms of a Statute of Richard II., which, in
confirming the king’s power to prohibit free egress from England, does
so, subject to very wide exceptions. Under its provisions the Crown had
the right to prohibit the embarkation of all manner of people, as well
clerks as others, from every port and other place upon the sea-coast
under pain of forfeiture of all their goods, "except only the lords and
other great men of the realm, and true and notable merchants, and the
king’s soldiers," who were apparently in 1381 free to leave without the
king’s licence, although earls and barons had been prohibited in
1352.[884] Even if this statute confers on magnates, merchants, and
soldiers freedom to go abroad without royal licence (which is doubtful)
the powers of veto reserved to the Crown were still, to modern ideas,
excessive. It remained in force, however, until 1606, when it was
repealed under somewhat peculiar circumstances. After the union of the
crowns, King James, anxious to draw the bond closer, persuaded his first
English parliament to abrogate a number of old laws inimical to Scottish
interests. It was in this connection that the Act of Richard II. was
declared (in words, however, not limited to Scotland) to be “from
henceforth utterly repealed.”[885] Coke stoutly maintains that this
repeal left intact the Crown’s ancient prerogative, not founded upon
statute but on the common law, of which power the already-cited
Proclamation of Edward III. had been merely an emanation. He almost
seems, therefore, to argue that the Crown in the seventeenth century
retained authority which extended precisely over those classes mentioned
in the ordinance of 1352.

-----

Footnote 883:

See Coke, _Ibid._, citing the Close Roll of 25 Edward III.

Footnote 884:

5 Richard II., stat. 1, c. 2.

Footnote 885:

4 James I. c. 1, s. 22.

-----

In any view, the prerogative of interfering with the subject’s freedom
to depart from England has never been completely taken from the Crown.
Yet, in the course of centuries a great change has been gradually
effected: the _onus_ has been shifted from the individual who wished to
leave the kingdom, on to the king who wished to detain him. While, under
John or Henry III., the subject required before embarking to obtain a
licence from the Crown, under later kings he was free to leave until
actually prohibited by a special royal writ. Coke[886] speaks of the
form originally used for this purpose, a form so ancient in his day as
to be already obsolete, known as _Breve de securitate invenienda quod se
non divertet ad partes externas sine licentia regis_. This was
superseded by the simpler writ _Ne exeat regno_ which is still in
use.[887] The sphere of this writ was restricted and altered: it ceased
to be an engine of royal tyranny and was never issued except as part of
the process of a litigation pending in the Court of Chancery. Regarded
always with suspicion by the courts of common law as a creature of
prerogative, it was for centuries the special instrument which prevented
parties to a suit in equity from withdrawing to foreign lands. Some
uncertainty exists as to the proper province of these writs at the
present day, since the Judicature Acts have merged the Court of Chancery
in the High Court of Justice.[888]

-----

Footnote 886:

_Third Institute_, p. 178.

Footnote 887:

Its origin is obscure. See Beames, _Brief view of the writ of Ne
Exeat_, _passim_.

Footnote 888:

See _Encyclopaedia of Laws of England_, IX. 79.

-----

The use of such writs in this restricted sphere could not be reckoned an
oppressive interference with the liberty of the subject. The perfect
freedom to leave the shores of England and return at pleasure, accorded
by John’s Magna Carta, but immediately withdrawn as impracticable for
that age, has in the course of centuries been fully realized.[889]

-----

Footnote 889:

On the whole subject of these writs, see Stephen, _Commentaries_, II.
439-40 (ed. of 1899), and authorities there cited.

-----

Two phrases, occurring in this chapter, call for comment, although for
different reasons:—one as embodying an ancient legal doctrine, now
obsolete, the other as anticipating a characteristically modern point of
view. (1) _Salva fide nostra._ This short-lived clause of Magna Carta,
in granting freedom to leave the country, very properly provided that
mere absence from England should absolve no one from allegiance to his
king. The old doctrine of nationality was indeed a very stringent one.
The rule which prevailed was _Nemo potest exuere patriam_. Everyone born
in the land owed allegiance to its king—and this tie continued unbroken
until severed by the death of subject or sovereign; it could be broken
in no other way. According to this maxim, a man born a subject of the
king of England must remain his subject wherever he wandered. A breach
of the duties of allegiance, which were consequent thus on the mere
accident of birth, might expose the offender to the inhuman horrors
inflicted upon traitors.

A series of statutes, culminating in the Naturalisation Act of 1870,
have entirely abrogated this ancient doctrine, and substituted one of
perfect liberty. Any native of Great Britain is now free to become the
subject of any foreign state; and the mere fact of his doing so
deliberately and with all necessary legal formalities, denudes him of
his British nationality, severs the tie of allegiance, and frees him
from the operation of the law of treason. The words “_salva fide
nostra_” no longer apply.

(2) _Propter communem utilitatem regni._ The charter, in placing a
restriction on the right of free egress, during the actual continuance
of hostilities, declared that such restriction was to be imposed for the
common good of the kingdom, thereby enunciating what is generally
regarded as a very modern doctrine: John was to take action, not for his
own selfish ends but only _pro bono publico_.

CHAPTER FORTY-THREE.

Si quis tenuerit de aliqua eskaeta, sicut de honore Wallingfordie,
Notingeham, Bolonie, Lancastrie vel de aliis eskaetis, que sunt in manu
nostra, et sunt baronie, et obierit, heres ejus non det aliud relevium,
nec faciat nobis aliud servicium quam faceret baroni si baronia illa
esset in manu baronis; et nos eodem modo eam tenebimus quo baro eam
tenuit.

If one who holds of some escheat (such as the honour of Wallingford,
of Nottingham, of Boulogne, of Lancaster, or of other escheats which
are in our hands and are baronies) shall die, his heir shall give no
other relief, and perform no other service to us than he would have
done to the baron, if that barony had been in the baron’s hand; and we
shall hold it in the same manner in which the baron held it.

This chapter reaffirms a distinction which had been recognized by Henry
II. but ignored by John. Crown tenants were divided into two classes,
according as their holdings had been originally granted by the Crown, or
by some mesne lord whose barony had subsequently escheated. The latter
class received preferential treatment from Henry II. for reasons to be
immediately explained. The older law of escheats was too vague to prove
an effective restraint on royal prerogative; the king, when a fief had
escheated to the Crown, might reckon grants made by its former owner as
void, refusing to acknowledge as binding upon him the titles of the
sub-tenants, treating all sub-tenancies as wiped out by the mere fact
that their lord’s fief had escheated to the Crown. A mesne lord, on the
contrary, had no similar rights over the sub-tenants of his tenant who
had suffered escheat.

The king usually mitigated in practice the full severity of this theory,
confirming as of grace, or from motives of policy, or in return for
money, claims which he refused to admit as matter of right. The tenants
of escheated baronies were accepted as tenants _in capite_ of the
Crown.[890] Not only so; but Henry II. did not allow them to be
prejudicially affected by the change. The king would only take from them
those services and feudal dues which they had been wont to render to the
lord of the barony previous to its escheat. This just and lenient policy
explains the origin of the division of royal tenants into two classes;
tenants who held of Henry _ut de corona_, and tenants who held of him
_ut de escaeta_, _ut de honore_, or _ut de baronia_ (phrases used
synonymously).[891] In respect of such obligations as were heavier for
ordinary Crown tenants than for tenants of mesne lords, holders of Crown
fiefs _ut de escaeta_ were placed on the more favoured footing. Two
illustrations may be given. While tenants _ut de corona_ under Henry II.
had to pay large and arbitrary reliefs, those _ut de escaeta_ paid no
more than 100s. per knight’s fee.[892] Nor was their obligation of
“suit” (or attendance at the feudal court of the lord of the fief) to be
increased. “The tenants of any honour or manor which had come by escheat
to the Crown, were not suitors of the Curia Regis, but of the court of
the honour or manor which had so escheated.”[893]

-----

Footnote 890:

Royal clemency in this respect could not be relied on by the
sub-tenants of _small_ escheated fiefs (not reckoned as honours or
baronies). This seems to be the opinion of Madox, _Baronia Anglica_,
199: “If a fee holden of the Crown _in capite_ escheated to the king
and was not an Honour or Barony, then such fee did not (that is to
say, I think it did not) vest in the Crown in the same plight in which
it was vested in the said tenant _in capite_.” Cf. also _Ibid._, 203.

Footnote 891:

See Madox, _Baronia Anglica_, 169–171; also Pollock and Maitland, I.
261, and authorities there cited.

Footnote 892:

See _Dialogus_, II. x. F, and _Ibid._, II. xxiv. The same rule applied
to sub-tenants of baronies in wardship (which was analogous to
temporary escheat). For example, when the see of Lincoln was vacant,
and therefore in ward to the Crown in 1168, the heirs of sub-tenants
paid to Henry only what they would have paid to the bishop; one giving
£30 for six fees, and another 30 marks for four. See _Pipe Roll_, 14
Henry II., and cf. _supra_, c. 2. In the matter of scutage, also, a
distinction was recognized: while tenants _ut de corona_ might be
compelled to serve in person without an option, crown tenants _ut de
honore_ (and a _fortiore_ sub-tenants also) might claim exemption on
tendering scutage. See case of Thomas of Inglethorpe in 12 Edward II.,
cited by Madox, _Baronia Anglica_, 169–171.

Footnote 893:

_Report on the Dignity of a Peer_, I. 60.

-----

John ignored this distinction, extending to tenants _ut de escaeta_ the
more stringent rules applicable to tenants _ut de corona_. Magna Carta
reaffirmed the distinction; and, not content with enunciating a general
principle, made two particular applications of it: neither reliefs nor
services of former tenants of baronies were to be augmented by reason of
the fact that such baronies had escheated to the Crown.[894] Henry
III.’s Charter of 1217 emphasized a third application of the general
rule, declaring that he would not, by reason of an escheated barony,
claim escheat or custody over the sub-tenants of that barony.[895] To
understand this concession, it must be remembered that under Henry III.,
as under Henry II., sub-tenants of baronies were still liable to have
their titles reduced through the reduction by escheat of the title of
their lord; while sub-tenants of those who were themselves sub-tenants
were not exposed to a similar mischance by the escheat of their
immediate lord. Here also the position of Crown fiefs _ut de escaeta_
was to be assimilated to that of fiefs of mesne lords, and
differentiated from that of Crown fiefs _ut de corona_. Sub-tenancies of
escheated baronies were not to be wiped out, but to subsist, and the
Crown (or its grantee) would take the escheat subject to all liabilities
to, and rights of, sub-tenants.

-----

Footnote 894:

The need for this special reference to relief is not, at first sight,
obvious, since c. 2 of Magna Carta, by forbidding John to exact from
Crown tenants of either class the arbitrary sums taken by his father,
would seem to have already secured them from abuse. Probably, however,
c. 43 sought to prevent John from treating each of the former tenants
of the escheated barony as holder of a new barony of his own, and
therefore liable to a baron’s relief of £100 instead of the £25 he
ought to pay for his five fees, or £50 for his ten fees, or as the
case might be. The case of William Pantol (see _Pipe Roll_, 9 Henry
III., cited Madox, I. 318) seems to illustrate this. He was debited
with £100 of relief for his father’s land, but protested that he held
nothing of the Crown save five knights’ fees of the land which was of
Robert of Belesme. This plea was upheld, and £75 of the amount debited
was written off.

Footnote 895:

See c. 38 of 1217, and cf. the gloss given by Bracton (II. folio 87,
b.) which makes the meaning somewhat less obscure. The Charter of 1217
contained a saving Clause: “unless the holder of the escheated barony
held directly of us elsewhere.” Bracton added a second proviso,
namely, unless the said sub-tenants (now Crown tenants _ut de
escaeta_) had been enfeoffed by the king himself.

-----

The Crown seems not to have strictly observed this rule in practice.
Article 12 of the Petition of the Barons in 1258[896] complained that
Henry had granted charters conferring rights which were not his to give
(_aliena jura_), but which he had claimed as escheats. An act of the
first year of Edward III. narrated how the Crown had confiscated from
purchasers tenements held of the Crown “as of honours,” thus treating
them “as though they had been holden in chief of the king, as of the
Crown.” Redress was promised by the statute:[897] but irregularities
continued throughout the earlier Tudor reigns; and the first Parliament
of Edward VI. passed an act to protect purchasers of lands appertaining
to honours escheated to the Crown.[898]

-----

Footnote 896:

See _Sel. Charters_, 384.

Footnote 897:

See 1 Edward III., _stat._ 2, c. 13, _Statutes of Realm_, I. 256.

Footnote 898:

See 1 Edward VI. c. 4, _Statutes of Realm_, III. 9.

-----

CHAPTER FORTY-FOUR.

Homines qui manent extra forestam non veniant de cetero coram
justiciariis nostris de foresta per communes summoniciones, nisi sint in
placito, vel plegii alicujus vel aliquorum, qui attachiati sint pro
foresta.

Men who dwell without the forest need not henceforth come before our
justiciars of the forest upon a general summons, except those who are
impleaded, or who have become sureties for any person or persons
attached for forest offences.

These provisions were intended to redress one of the many abuses
connected with the administration of the oppressive forest laws.

I. _The Royal Forests._ For at least a century before John’s reign the
word “forest” had acquired an exact technical meaning, and was applied
to certain wide districts scattered irregularly throughout England,
reserved to the Crown for purposes of sport. Here the wild boar and deer
of various species found shelter, in which they were protected by the
severe regulations of the “Forest Law.” It was the prevalence of this
code which absolutely marked off the districts known as royal forests
from all that lay _extra forestam_; and this made an accurate definition
possible. A “forest” was a district where this oppressive law prevailed
to the absolute exclusion of the common law which ruled outside. The
forests with their inhabitants had been deliberately omitted from the
unifying process, by which the rest of England had been assimilated
under a uniform _lex terrae_. They remained in great measure at the
discretion of the Crown. This exclusion of the common law from the
confines of the forests was the root from which many evils grew. In no
other sphere was the prerogative so unfettered as within the charmed
circles which marked off these royal preserves from more fortunate parts
of the kingdom.

From this definition of a forest as a _legal_, not a _physical_, entity,
it follows that the word is far from synonymous with terms such as
“wood” or “covert,” implying merely natural characteristics. A forest
was not necessarily covered with trees throughout the whole or even the
greater part of its extent. Miles of moorland and heath and undulating
downs might be included, and even fertile valleys, with ploughed fields
and villages nestling among them. The same forest, indeed, might contain
many woods, some of them on royal demesne and some the property of
private owners. In certain places the king’s proprietary rights might be
co-extensive with his forestal rights; but, more frequently, large
tracts of the _solum_ (whether wooded or bare) were owned by
freeholders, whose rights of property tended to become merely nominal,
when overridden by the king’s rights of the chase. Men might live, and
did live, within the boundaries, but they could enjoy no rights of
personal freedom or of property inconsistent with the rules laid down by
the Crown to protect its own interests. Within the imaginary line the
king’s power was supreme, and he used it frankly for the preservation of
beasts of the chase, not for the good government of the men who happened
to dwell there. These unhappy beings were absolutely subject to the
harsh forest code, a law, in the expressive words of Dr. Stubbs, “cruel
to man and beast.” If accused of forest offences, they had no protection
from the common law of England any more than from the law of a foreign
land. It was something, however, that even in these high places of royal
prerogative, customary rules grew up, obtained authoritative
recognition, and gradually hardened into laws which set some limits,
however inadequate, to royal caprice. Before John’s time the forest
code, as set forth in the Assize of Woodstock, and exemplified by the
practice of forest officials, had taken its place as a definite system
of law distinct from common law and canon law alike.[899]

-----

Footnote 899:

A convenient short account of the forests, with their special laws,
special officials, and special courts, will be found in W. S.
Houldsworth’s _History of English Law_, pp. 340-352. For fuller
information see _Dialogus de Scaccario_, I. xii.; John Manwood, _Book
of the Forests_ (1598); Coke, _Fourth Institute_, 289–317; G. J.
Turner, Preface to _Select Pleas of the Forest_ (1901); and an article
in the _Edinburgh Review_ for April, 1902.

-----

II. _Origin of the Forests._ Before the Norman Conquest the kings of
England do not seem to have laid claim to any exclusive prerogative in
this respect. The only ordinance of Cnut on the subject admitted to be
authentic enacted merely that every man should have his own hunting,
while the king should have his.[900] The rights of the Crown, however,
were strengthened and consolidated by the events of 1066, and by the
hardening of feudal theory which followed. All unoccupied waste lands
became royal property; and these were the natural resorts of the larger
sorts of game. The king established a claim to a preferential, and, at
last, to an exclusive, right to hunt the more important species of
animals _ferae naturae_, known as "beasts of the forest"—embracing the
red deer (harts and hinds), the fallow deer (bucks and does), the roe
deer of both sexes, and the wild boar, with, exceptionally in one
forest, the ordinary hare.[901] The Conqueror and his sons set great
store on their hunting, and warned all intruders off the wide tracts of
land claimed as royal preserves. Henry I. formulated the doctrine of the
forest law, and it was probably due to him that “forest” acquired its
highly technical meaning. With the special meaning came the express
claim to a monopoly of hunting, together with supreme and exclusive
jurisdiction. The disorders of Stephen’s reign lowered the Crown’s
authority in this respect as in so much else, and Henry II. found the
forests much curtailed. He had no intention to acquiesce in this, but it
was not till 1184 that he attempted, by the Assize of Woodstock, to
formulate the rules of the forest law. In this sphere, as in so many
others, the process of organization was completed by Henry II. building
on the foundations laid by his grandfather; and the whole structure was
bequeathed in a state of high efficiency to his sons. John’s attitude to
the forest laws was not entirely consistent. The monk of Barnwall, whose
work is incorporated by Walter of Coventry in his own, relates to John’s
credit how, in the year 1212, he attempted, among other reforms meant to
propitiate the people, some relaxations in the severity of the forest
code.[902] Such clemency was exceptional. More characteristic of his
normal attitude was the order issued on 28th June, 1209, that hedges
should be burned and ditches levelled, so that while men starved, the
beasts might fatten upon the crops and fruits.[903]

-----

Footnote 900:

_Select Charters_, 156.

Footnote 901:

_Select Pleas of the Forest_, xiii.

Footnote 902:

See W. Coventry, II. 207, and Stubbs’ Preface, lxxxvii. By a writ of
18 May, 1204 (_New Rymer_, I. 89), he disafforested all Devonshire
except Dartmouth and Exmoor.

Footnote 903:

R. Wendover, III. 227. This, however, is clearly a biased account of
the king’s resumption of forest tracts illegally put under cultivation
by way of purpresture.

-----

III. _Forest Officials._ The local magistrates who administered the rest
of England were excluded from the confines of the forests by a separate
set of officials. At the head of this special organization was placed,
in early times, the Forest Justiciar (called the chief forester in
chapter 16 of the _Carta de Foresta_), whose duties were divided in the
year 1238, after which there were two provinces separated by the river
Trent.[904] His appointment was permanent, and his duties, which
continued between the eyres, were administrative rather than judicial.
He had discretionary authority to release trespassers imprisoned for
offences against the forest laws.[905] Under his general supervision
each forest, or group of forests, was governed by a separate _warden_,
aided by a number of petty officials known as _foresters_, whose duties
were analogous to those of a modern gamekeeper, but with magisterial
powers in addition. Wardens were of two classes—"the one appointed by
letters patent under the great seal, holding office during the king’s
pleasure; the other hereditary wardens."[906] For the king’s use there
was situated in or near each forest of any extent a royal residence
which, in the Middle Ages, naturally took the form of a stronghold. It
was convenient that the office of warden should be combined with that of
constable of this neighbouring castle.[907] “The wardens were the
executive officers of the king in his forests. Writs relating to the
administration of forest business, as well as to the delivery of
presents of venison and wood, were in general addressed to them.”[908]

-----

Footnote 904:

See _Select Pleas of the Forest_, xiv. The permanent routine work
performed by this functionary must not be confused with the
intermittent duties of the Justices of Forest Eyres: although he was
almost invariably a member of the commission who went on circuit:
_e.g._ chapter 16 of the Forest Charter speaks of the Chief Forester
holding pleas of the forest.

Footnote 905:

_Select Pleas_, xv.

Footnote 906:

Mr. Turner, in _Select Pleas_, xvii.

Footnote 907:

Engelard de Cygony, for example, whose name appears in chapter 50,
occupied this double position. Chapter 16 of _Carta de Foresta_
forbids _castellans_ to determine pleas of the forests, thus
strengthening the presumption that wardens were usually constables.

Footnote 908:

_Select Pleas_, xix.

-----

The office was one of authority and of profit, usually paid in kind
rather than by a salary. The warden often held a fief by a tenure
connected with the service, and enjoyed rights and perquisites always of
a valuable nature, though varying with each forest. These were
sufficient to provide him with an income adequate to his position, and
to allow him to find the wages of his under-keepers, who ought thus to
have been paid officials. Such was the theory; as matter of fact, the
foresters, instead of receiving wages, gladly paid large sums to the
warden, and recouped themselves, with an ample profit, by extortions
from the humble dwellers in their bailiwicks.[909] These unpaid
foresters were expressively said “to live upon the country.” They formed
a powerful official class, whose excessive numbers were a source of
constant complaint. They may be classified in various ways, as, into
riding and walking foresters (of whom there were one and four
respectively in the normal case), or into foresters nominated by the
wardens, and foresters in fee. These last had vested interests which the
Forest Charter was careful to respect; as, where chapter 14 reserved to
them the right to take “chiminage,” or way-leave, denied to other types
of foresters; they might still enjoy, but not abuse, the “vested rights”
reserved to them.[910]

-----

Footnote 909:

_Ibid._, xxi.

Footnote 910:

The same chapter, however, fixed the rates of “chiminage.”

-----

With these professional gamekeepers there co-operated, in later times at
least, several groups of unpaid magistrates appointed from the knights
and freeholders of the district. Of these honorary officials, whose
original function was to supply supplementary machinery for protecting
the rights of the Crown, but whose position as county gentlemen with a
stake in the district led them also to act to some extent as arbitrators
between the king and outside parties, there were three recognized kinds.
(_a_) Towards the close of the twelfth century officers known as
_verderers_ (usually four for each forest) become prominent. They appear
in the _Carta de Foresta_ of 1217, but had not been mentioned in the
Assize of Woodstock of 1184. It is probable that the office was devised
in the interval as a check on the warden’s power, as the office of
coroner had been instituted in the reign of Richard I. as a drag on the
sheriff. In other important respects the duties of the verderers within
the forests resembled those of coroners within the rest of the county.
They were not royal employees, whose whole time was absorbed by the
duties of office and remunerated by fixed salaries or by perquisites,
but rather local landowners whose magisterial services were unpaid, and
were presumably required only on special occasions. They were
responsible directly to the king, and not to the warden; and were
appointed in the county court, their “election” taking place in
accordance with the terms of the writ “_de viredario eligendo_.” They
attended the forest courts and swanimotes, and it appears from chapter
16 of Henry’s forest charter that it was their duty to bring before the
Justices in Eyre lists of all offenders indicted in the lower courts.
These “rolls of attachment” were certified by their seals.[911] (_b_)
The _Regarders_ were twelve knights appointed in each forest county to
make tours of inspection every third year, finding answers to a series
of questions known as the “Chapters of the Regard.” In this way they
reviewed the Crown’s interests alike in “the venison and the vert” (the
technical names for game and growing timber respectively), and reported
upon all encroachments: upon hawks and falcons, bows and arrows,
greyhounds and mastiffs (with special reference to “expeditation” or
cutting of their claws),[912] and generally upon everything owned by
private individuals likely to harm the beasts of the forest.[913] (_c_)
The _Agistors_ are mentioned in the same clause of the Assize of
Woodstock which mentions the Regarders. Four knights were appointed,
apparently by the warden of each forest, whose duty it was to protect
the king’s interests in all matters connected with the pasturing of
swine or cattle within the royal woods. For thirty days at Michaelmas
pigs were turned loose with liberty to feed on the acorns and beech mast
on payment by their owners of a small fixed sum per head. The four
knights were required to take note of sums thus due, known as “pannage,”
and to collect them at Martinmas.[914]

-----

Footnote 911:

For the earliest notice of verderers see _Select Pleas of the Forest_,
xix., n. Their appointment in the county court may indicate that they
acted in some measure as a check on the professional foresters in the
interests of the people generally, as well as a check on the warden in
the interests of the king. Within the forest the warden, with the
verderers and foresters, offered an exact parallel to the sheriff with
the coroners and bailiffs (or serjeants) in other parts of a county.

Footnote 912:

See _Carta de Foresta_, c. 6.

Footnote 913:

After 1217, if not before, it was one of their duties to fix the
number of foresters required, so that the inhabitants need not groan
under a heavier burden than necessary.

Footnote 914:

In one document they were styled _agistatores precii_ (_Select Pleas_,
p. 1.), which suggests that fixing the rate was their chief duty.
“Agist” was a general term; it was apparently correct to speak of
"agisting a wood”, of “agisting cattle,” and of “agisting the money
due.”

-----

Mention ought, perhaps, to be made of the private foresters also, whom
owners of woods within the forests were obliged to appoint. These “wood
wards,” as they were sometimes called, while paid for by the owner of
the wood, were expected to protect the king’s interests. In particular,
they must prevent trees under their care from being destroyed or wasted:
the king was an interested party in these, since they formed shelter for
his game.

IV. _Forest Courts._ The judicial side of the forest system was
developed in a manner equally elaborate. Three sets of tribunals must be
distinguished: (1) _The Court of Attachments_ (or “view of attachments”)
was a petty tribunal, the chief duty of which was confined to taking
evidence to be laid in due course before a higher court. Exceptionally,
however, it had power to inflict fines for small trespasses against the
"vert"—namely, for acts of waste not exceeding the value of fourpence.
It met once in every forty days,[915] which seems in practice to have
been interpreted as once every six weeks, the meetings being always held
on the same day of the week.[916] (2) _Courts of Inquisitions._ When a
serious trespass against the forest laws was discovered, a special court
was, in early days, summoned immediately to make investigations. The
foresters and verderers conducted the inquiry, but it was their right
and their duty to assemble the men of the neighbouring townships to help
them. In strictness, apparently, all the inhabitants might be compelled
to attend. In practice, it was sufficient if four men and the reeve
represented each of the four adjoining villages. Whenever a “beast” was
found dead in the forest twenty men had thus to assemble, to the neglect
of their own affairs; and they would be made to suffer if they failed to
discover the culprit. In one district at least (Somerton) the definition
of beasts of the chase extended to the ordinary hare; and we read[917]
how four townships sat in solemn judgment, and found “that the said hare
died of murrain, and that they know of nothing else except
misadventure,” and how, this verdict not giving satisfaction, the
townships were fined on the pretext that they were not fully
represented. The real offence was their failure to disclose the culprit,
which was held to imply a desire to shield him. Some alleviation of the
burden of attendance was effected when, at some date posterior to 1215,
_special inquisitions_ were superseded by one _general inquisition_,
held at regular intervals (usually every six weeks), to cover all
trespasses committed during the interval. These courts of inquiry
(whether special or general) only “kept” pleas without “trying”
them—that is to say, they received and recorded accusations, while the
judgments were reserved for the justices. (3) _The courts of the forest
justices in eyre._ As the smaller courts, in the normal case, received
verdicts and reports, without punishing the offences reported, it is
evident that the whole system ultimately depended on the justices. Their
eyres, however, were held at wide intervals—apparently once every seven
years during the reign of Henry III. A very full attendance of forest
officials and of the public was summoned to meet them. The evidence
stored up as a result of the work of the smaller courts, supplemented by
the Rolls of the Regard, was laid before the justices, who summarily
judged “pleas of the vert,” inflicting small amercements, and “pleas of
the venison,” punishing by imprisonment those previously found guilty,
until they ransomed themselves by heavy fines. These eyres came to be
known as “Courts of Justice Seat,” but not until long after the reign of
John. No juries were present, nor were they required; the justices
punished offenders who had already been convicted by juries at a lower
court.

-----

Footnote 915:

_Carta de Foresta_, c. 8.

Footnote 916:

_Select Pleas of the Forest_, xxx.

Footnote 917:

_Select Pleas of the Forest_, p. 42.

-----

These three classes of tribunals exercised functions analogous to those
of a modern court of law. In addition, there should be mentioned two
other kinds of assemblies which performed duties administrative rather
than judicial, as these terms are now understood. (4) The _regard_, held
once every three years—not by Crown officials, but by what was
practically a jury of local knights—has already been referred to. These
tours of inspection, sometime known as _visitationes nemorum_,[918] and
sometimes even as “views of expeditation,” were of great practical
importance. The resulting report was placed before the justices of eyre
as evidence of forest trespasses. (5) Three times every year, meetings,
known from an early date as “_Swanimotes_,” were held to regulate the
pasturing of swine and cattle within the royal woods. A fortnight before
Michaelmas the agistors met the foresters and verderers to provide for
the agisting of the king’s woods, a process which lasted for thirty
days—fifteen before and fifteen after Michaelmas. At Martinmas the
agistors collected the pannage in presence of the same officials. A
third meeting of officials was held in June to make arrangements for
excluding cattle of all kinds from the king’s woods during the period
when the deer were fawning, but at this the presence of the agistors was
not required.[919]

-----

Footnote 918:

_Dialogus_, I. xi. E.

Footnote 919:

It is expressly stated in the _Carta de Foresta_ (1217) that only the
verderers and foresters need be present at the June moot, and the same
officers, with the agistors, at the two others. The public were
specially exempted.

-----

The _Carta de Foresta_ applies to these assemblies, and to none other,
the name "Swanimotes"—a word whose correct use has been the subject of
much discussion, and whose ambiguity was in later centuries the source
of many errors. Its authoritative appearance in 1217 affords strong
evidence of the original sense which it bore. In later days, however, it
was more loosely used, being applied to inquisitions, and also to courts
of attachment. This has led to much confusion, while its derivation has
also been the subject of discussion. Bishop Stubbs derived it from the
word “swain,” on the supposition that courts so-called were normally
resorted to by the general body of swains or country people. As matter
of fact (whatever doctrine may be correct philologically), these
assemblies were connected, not with “swains,” but with “swine.” The
peasantry were specially exempted; whereas all three meetings sought to
regulate the entry or exclusion of pigs from the woods.

V. _Chases, Parks, and Warrens._ Forests were necessarily royal
monopolies, and must on this and other grounds be distinguished from
three things with which they are apt to be confused. (1) A “chase” was a
district which had once been a royal forest, but which had, without any
formal act of disafforestation, been granted by the king to a private
individual. The result was to transfer the monopoly of hunting therein
from the Crown to the grantee, while somewhat modifying the nature of
the rights transferred. The full force of the forest laws was abated,
although the extent and direction of this diminution was nowhere
strictly defined, varying from chase to chase. Such provisions of the
forest law as continued to be binding were no longer enforced by royal
officials and royal courts, but by those of the magnate, who thus
obtained a franchise over the chase and the royal beasts it
contained.[920] (2) A “park” was any piece of ground enclosed with a
paling, or hedge, whether with the object of protecting wild beasts or
otherwise, and the right to effect this was quite independent of royal
grant. If the owner of a manor in the near neighbourhood of a royal
forest wished to keep deer of his own, which he might kill at pleasure,
whether for sport or for food, without infringing the forest laws, he
had to stock an enclosure with beasts legally his own, and to keep them
under conditions which made confusion with the king’s deer
impossible.[921] In 1234 the barons asserted their right to keep private
gaols for poachers taken in their parks (_in parcis et vivariis suis_),
but the king refused to allow this.[922] (3) A “warren,” which might
belong either to the king or to any private owner, carried with it
exclusive rights of hunting within its bounds all wild animals, except
those technically defined as “beasts of the forest.”[923] In practice it
chiefly embraced hares and foxes.[924] Neither parks nor warrens were
protected by the forest law, but by that part of the common law which
related to theft and trespass. This was, however, vigorously
administered for the preservation of game, so as to bear with increasing
hardship on the common people, securing a monopoly of hunting to the
land-owning aristocracy, and passing gradually into the modern Game
Laws.[925] Dr. Stubbs held, apparently, too narrow a conception of
warren when he read it in its modern sense of “a rabbit warren.”[926] It
was a tract of land wherein exclusive rights of hunting lesser game
(together with rabbits and other vermin) were preserved to its owner.
The king might, and did, have his warrens and warreners, just as any
subject might; and these royal warreners, like all Crown officials,
great and small, might inflict cruel injustice on the common
people;[927] but their power of doing harm was less than that of
foresters, as they were dependent on the common law. The forest code did
not apply even to royal warrens.[928]

-----

Footnote 920:

_Select Pleas of the Forest_, cix. _et seq._

Footnote 921:

_Ibid._, cxvii.

Footnote 922:

Statute of Merton, c. 11.

Footnote 923:

_Select Pleas of the Forest_, cxxiii.

Footnote 924:

_Ibid._, cxxviii-cxxix. Wild cats should perhaps be added.

Footnote 925:

See W. S. Houldsworth, _History of English Law_, p. 346.

Footnote 926:

See _Select Charters_, 552.

Footnote 927:

Some of these Magna Carta sought to guard against. See c. 48.

Footnote 928:

Rights of hunting were sometimes conferred on subjects over territory
which was not their own. Richard I., by a charter, granted permission
to Alan Basset to hunt foxes, hares, and wild cats throughout the
realm. See Round, _Ancient Charters_, No. 18.

-----

VI. _Forest Rights and Forest Grievances._ It is not difficult to
understand the store which the kings of England set upon their forests.
They prized them not merely as a pleasure ground, but also as a source
of revenue. Fines and amercements, individually small, but amounting to
a large sum in the aggregate, flowed into the Exchequer. Great as were
the pleasure and the profit to the king, the burden and loss inflicted
upon the people, freeholders and peasantry alike, were greater out of
all proportion. Not only were the best interests of the forest-dwellers
deliberately sacrificed to the royal hunting, not only were the legal
fines swelling the exchequer rendered trebly burdensome by the galling
and wasteful manner of their collection; but the men who paid them were
the victims of illegal exactions in addition. These grievances may be
considered under seven heads:—(1) _The extent of the forests._ The Crown
constantly strove to extend the boundaries; the people to contract them.
The Conqueror and Rufus each “afforested” wide tracts of land, of which
the New Forest is only one example. In the charter of 1100, Henry
bluntly declared:—“I retain in my hand, by the common consent of my
barons, my forests as my father had them.” This consent of the magnates,
if more than a form and willingly given, would suggest that the barons
were allowed some share in these royal rights of hunting which led them
here to make common cause with the Crown. Henry, as a matter of fact,
retained not only the forests of his father but those of Rufus as well,
and created new ones of his own.[929] Stephen, while retaining the
forests of the two Williams, renounced those added by Henry I. Under
Henry II., afforestation began anew.[930] The words of the Great Charter
leave no room to doubt that Henry of Anjou had extended the boundaries
of Stephen’s forests; and that both Richard and John carried the process
further, bringing within the circle of the cruel law, not only waste and
moor, but also many “woods” belonging to private owners. These royal
encroachments were the more oppressive, occurring as they did in an age
when population was rapidly increasing and seeking an outlet in the
reclamation of waste places on the debateable land which surrounded the
forests. The vagueness of the frontier aggravated this grievance, as it
was often difficult for the honest reclaimer of barren land to know
whether he was committing a trespass for which he might be punished by a
crushing fine.[931]

-----

Footnote 929:

This is implied in the terms of Stephen’s Oxford Charter. An example
of an act of afforestation by Henry is given in _Select Pleas_, 45,
which shows how “a district could be afforested in a moment by the
mere word of the monarch; it took centuries to free it from the royal
dominion.” See _Edinburgh Review_, vol. cxcv. (1902), p. 459. Even the
Forest Charter (cc. 1 and 3) admitted the Crown’s right to afforest
woods on its own demesne—reserving, indeed, common of pasture to those
with legal rights thereto.

Footnote 930:

The policy of Henry I., Stephen, and Henry II. respectively is well
illustrated by the case of Waltham forest in Essex. See Round,
_Geoffrey de Mandeville_, 377–8.

Footnote 931:

This group of grievances was partly remedied by chapters 47 and 53 of
Magna Carta. The former provided for the summary disafforestation of
all districts made forests by Richard and John, while the latter
showed a more judicial spirit in the undoing of the similar work
effected by their father. The _Carta de Foresta_ of 1217 contained
clauses which took the place of these somewhat crude provisions.

-----

(2) _The monopoly of hunting._ The Crown not only extended the bounds,
but also made the law more stringent. Such privileges of hunting as the
barons had were restricted as big game became scarce. The Crown’s
insistence on a strict monopoly of the more exciting forms of the chase
may not seem an important grievance, but it was one likely to exasperate
the sport-loving nobles. John, in 1207, admitted that his barons still
retained some vestiges of their right to share in the hunting of royal
beasts.[932] These rights were formally recognized and defined in 1217.
Chapter 11 of the _Carta de foresta_ allowed each magnate when passing
through a forest to take one or two beasts at sight of the foresters,
or, if these officials could not be found, then after blowing a horn to
show that nothing underhand was being done.

-----

Footnote 932:

See _Rot. Claus._, I. 85 (dated 11 June, 1207).

-----

(3) _Interference with rights of property._ Freeholders whose lands lay
in districts which the king was successful in afforesting, retained
their freeholds, but their proprietary rights lost half their value.
They could not root out trees, to clear their own lands for cultivation;
for that was to commit an _assart_. They could not plough up waste land
or pasture (even outside the covert) and turn it into arable, nor build
a mill, nor take marl or lime from pits, nor make fishponds, nor enclose
any space with hedge or paling; for these acts of ownership were
_purprestures_. They could not destroy a tree or lop off branches
(except under stringent conditions), without being guilty of
_waste_.[933] They could not agist their woods until a fortnight after
Michaelmas, when the agisting of the king’s demesnes was over (thus
reserving for him the best market and “pannage dues”).[934] Heavy tolls
were, under the name of “chiminage,” taken from carts and sumpter-horses
passing through the woods. In all these and many other ways, rights of
private property in forests were so restricted as to become valueless.
The Great Charter endeavoured to strike at the abuse of these Crown
rights by providing machinery for the abolition of “evil customs.” The
_Carta de foresta_ entered more into detail. Not only were past
trespasses of all three kinds,—wastes, purprestures, and assarts to be
condoned, but the law was altered for the future. The long list of
purprestures was materially curtailed: it was made lawful for a man to
construct on his own freehold in the forest, mills, ponds, lime pits,
ditches, and arable lands, provided these were not placed within the
covert (that is in wooded places fit to shelter game) and did not
infringe on any neighbour’s rights.[935] They might also keep eyries for
breeding falcons and other birds of prey, and take honey found on their
own ground—rights previously denied to them.[936]

-----

Footnote 933:

For detailed information as to wastes, purprestures, and assarts with
their ascending scale of penalties, see _Select Pleas_, lxxxii.

Footnote 934:

See Assize of Woodstock, article 7.

Footnote 935:

See _Carta de foresta_, c. 12.

Footnote 936:

_Ibid._, c. 13, another clause (c. 14) forbade ordinary foresters to
exact chiminage, and fixed the rates payable to those with vested
rights at two pennies for each cart per half-year, and one half-penny
for each sumpter horse.

-----

(4) _Interference with the pursuits of the poor._ If the rich suffered
injury in their property, the poor suffered in a more pungent way: stern
laws prevented them from supplying three of their primary needs, food,
firewood, and building materials. On no account could they kill deer;
while difficulties surrounded the taking of timber from the woods.[937]
It is true that even the Assize of Woodstock allowed them the privilege
of “estovers,” that is of cutting firewood, but only under stringent
rules. All waste was strictly prohibited; and “waste” was a wide word
covering, not merely wanton destruction, but all sales or gifts of logs;
while nothing could be taken except at sight of the forester, whose
consent would not be procured for nothing. This may be illustrated from
a period sixty years later than John’s reign: Hugh of Stratford, who
paid two and a half marks of yearly rent to the Warden for his post,
recouped himself by taking “from the township of Denshanger for every
virgate of land one quarter of wheat in return for their having paling
for their corn and for collecting dead wood for their fuel in the
demesne wood of the lord king; and from the same town he took from every
house a goose and a hen in every year.”[938] A small sum might be taken
for every load of sticks; the men of Somerset complained that “from the
poor they take, from every man who carries wood upon his back,
sixpence.”[939] Dwellers within or near the forests were also prohibited
from keeping dogs, unless their value for other pursuits, as well as for
hunting, was destroyed by the removal of three claws of the
forefoot.[940] Nor could they keep bows or arrows, so necessary for
their protection amid the dangers which beset the inhabitants of lonely
districts throughout the Middle Ages.[941] No tanner or bleacher of
hides could reside in the forest districts, unless within the walls of a
borough.[942]

-----

Footnote 937:

See Assize of Woodstock, article 3.

Footnote 938:

See _Select Pleas_, 123 (6 Edward I.).

Footnote 939:

_Select Pleas_, 127 (1278-9). This was a heavy rate, the more
remarkable in face of the provisions against “chiminage” in _Carta de
foresta_, c. 14.

Footnote 940:

Assize of Woodstock, article 14. Cf. _Carta de foresta_, c. 6.

Footnote 941:

_Ibid._, article 2.

Footnote 942:

_Ibid._, article 15.

-----

(5) _Attendance at forest courts._ Unlike the grievances already
mentioned which pressed chiefly on those within the forests, the burden
of performing “suit” at the forest courts was specially resented by
those who lived without. At every inquisition representatives from
neighbouring townships must be present, while the entire population were
compelled to meet the justices on their forest eyres. Henry II.,
whatever may have been the earlier practice, enforced this duty of
attendance upon those outside the boundaries as well as on those within.
The Assize of Woodstock admits no exemption for earl or baron, for
knight or freeholder, nor even (according to one version) for archbishop
or bishop. All and sundry must be present at the eyres. The double duty
of doing suit at county courts and at forest courts meant a double loss
of time, and double risk of amercement. This 11th Article of the Assize
was repealed by chapter 44 of Magna Carta, which restricted the
obligation to denizens of the forests, a concession confirmed in
1217.[943]

-----

Footnote 943:

See _Carta de foresta_, c. 2.

-----

(6) _Fines and punishments._ Frequent exactions ground down the dwellers
in the royal forests to abject poverty. If they failed to attend one of
the numerous inquisitions, they paid a fine. If they failed to disclose
the guilty poacher, they paid a fine. If they gave false information,
they paid a fine. If they sold or gave away timber, they paid a fine. If
they kept grey hounds or mastiffs, which had not been “lawed,” that is
deprived of the requisite number of claws, they paid a fine.[944] If a
bow or arrow were found in their keeping, they paid a fine. If they
committed any one of the numerous forms of waste or trespass, they paid
a fine. Truly, the wretched peasant must walk warily if he would
preserve sufficient of his miserable pittance to keep himself, his wife
and children, in life and health.

-----

Footnote 944:

At one time it had evidently been the practice to exact an ox in
reparation of such transgression, thus leaving the peasant without the
means of tilling his land. The Forest Charter (c. 6) limited the fine
to 3s.

-----

The Northamptonshire Eyre Roll of 1209 illustrates how a whole township
might suffer severely for no fault of their own. "The head of a hart
recently dead was found in the wood of Henry Dawney at Maidford by the
king’s foresters. And the forester of the aforesaid Henry is dead. And
because nothing can be ascertained of that hart, it is ordered that the
whole of the aforesaid town of Maidford be seized into the king’s hand,
on the ground that the said Henry can certify nothing of that
hart."[945] There was clearly a strong inducement, in such cases, to
find someone guilty.

-----

Footnote 945:

See _Select Forest Pleas_, p. 4.

-----

In certain cases Henry II. would not accept a fine, but inflicted loss
of limbs upon violators of the king’s monopoly. It was often better to
kill a fellow-man than a boar or stag. Article 1 of the Assize of
Woodstock announced that the full rigour of the laws would be enforced,
as under Henry I., while article 12 laid down more definitely that
sureties would only be accepted for two offences. For the third offence
nothing would suffice save the body of the offender. John’s Magna Carta
made no specific regulation on this head, although the general provision
for abolishing “evil customs” afforded some relief. Chapter 10 of the
_Carta de foresta_ in 1217 conceded that no one should henceforth lose
life or limb for such offences. The culprit should lie in prison for
year and day, and thereafter find sureties for his future good
behaviour, or failing such sureties be banished from the realm.

(7) _Arbitrary government and illegal exactions._ If the laws of Henry’s
code were stringent and the legal payments onerous, it was a worse evil
that the law, such as it was, could be safely defied by the Crown
officials, and that payments of a perfectly illegal nature might be
freely exacted. Within the forest bounds the peasantry lived in daily
fear of the discretionary authority of officials, whose most
unreasonable wishes they dared not oppose. Sometimes a local tyrant
established a veritable reign of terror. This happened in the forest of
Riddlington under Peter de Neville, as the records of the Rutland Eyre
held in 1269 disclose. One item, taken almost at random from the long
list of his evil deeds, will suffice: “The same Peter imprisoned Peter,
the son of Constantine of Liddington, for two days and two nights at
Allexton, and bound him with iron chains on suspicion of having taken a
certain rabbit in Eastwood; and the same Peter the son of Constantine,
gave two pence to the men of the aforesaid Peter of Neville, who had
charge of him, to permit him to sit upon a certain bench in the gaol of
the same Peter, which is full of water at the bottom.”[946] In this evil
pit, miscalled a gaol, men illegally arrested on mere suspicion were
allowed to rot or starve to death if they failed to pay heavy ransoms.
Other examples are only too abundant. In 1225 Norman Samson, a petty
official of the forest of Huntingdon, put men to the torture without
cause, and only released them from their torments in return for heavy
bribes. These petty despots were practically irresponsible, since the
eyres were held at wide intervals of seven years. Even then the
sufferers might hesitate to complain, fearing a worse fate when the
backs of the justices were turned. If such things could happen after the
grant of the charters of 1215 and 1217, it is not likely that the
foresters were more merciful before. John was always too indifferent or
too busy to redress such wrongs. The only guarantee against their
recurrence in the future was that honest officials should be selected.
Magna Carta sought to secure this by the provisions of chapter 45, which
(occurring amongst the forest clauses) directed that no justiciar,
sheriff, constable or bailiff should be appointed, except such as knew
the law of the land and meant to observe it. The word constable included
the wardens, while bailiff was wide enough to embrace the foresters. It
is doubtful whether this clause would have effected any improvement; it
was withdrawn in 1216.

-----

Footnote 946:

_Select Pleas_, 50.

-----

Some good must have resulted from chapter 16 of the Forest Charter,
which forbade wardens to hold pleas of the forest, and reserved them for
the justices in eyre. This prevented wardens from being judges in their
own cause; but their arbitrary acts continued to be plentiful under
Henry III., as has been already shown. Blackmail, under thin disguises,
was levied upon all who would escape the unwelcome attentions of those
in power. Sixty years after Magna Carta the men of Somerset complained
that “foresters come with horses at harvest time and collect every kind
of corn in sheaves within the bounds of the forest and outside near the
forest, and then they make their ale from that collection, and those who
do not come there to drink and do not give money at their will are
sorely punished at their pleas for dead wood, although the king has no
demesne; nor does anyone dare to brew when the foresters brew, nor to
sell ale so long as the foresters have any kind of ale to sell; and this
every forester does year by year to the great grievance of the
country.”[947]

-----

Footnote 947:

_Select Pleas_, 126.

-----

Each one of these abuses had been specifically forbidden by chapter 7 of
the _Carta de foresta_, which had prohibited the making of “scotale” and
the collection of corn, lambs, and pigs. Such rules were easier to
enunciate than to enforce.

VII. _Later History of Forests and Forest Laws._ The Forest Charter
signally failed to secure a pure administration of the law; but two
processes were at work which tended to lighten the burdens inflicted.
The long struggle to define accurately the boundaries ended in the reign
of Edward II. in the defeat of the king, who consented to the frontier
being drawn to suit the barons.[948] Within these restricted limits,
time and the progress of civilization gradually softened the severity of
the forest code, many customs becoming obsolete.[949] Charles I. made an
ill-judged attempt to revive some of the Crown’s long-forgotten rights.
Justice-seats were held by the Earl of Holland, accompanied by
amercements and attempts to extend the forest bounds.[950] The result
was a drastic act of the Long Parliament limiting them to their old
extents.[951] This statute, however, abolished neither the forests, the
forest laws, nor the forest courts. After the Restoration a Justice-seat
actually took place _pro forma_ before the Earl of Oxford. Blackstone
declares this to be the last ever held,[952] although the offices of
justice and warden of the forests were not abolished till 1817.[953] The
forests, much curtailed in extent, are still the property of the Crown,
though now administered in the interests of the public by the
Commissioners of Woods and Forests.[954] The operation of the common law
is, of course, no longer excluded from their confines, the old
antithesis between the forest law and the law of England being now a
thing of the past.[955]

-----

Footnote 948:

See _infra_, under c. 47.

Footnote 949:

The “_assisa et consuetudines forestae_,” issued by Edward I. in 1278,
although merely declaratory, may have done something towards
curtailing the limits of discretionary authority. See _Statutes of
Realm_, I. 243, and Bémont, _Chartes_, lxv.

Footnote 950:

See S. R. Gardiner, _Hist. Engl._, VII. 363, and VIII. 282.

Footnote 951:

16 Charles I. c. 16.

Footnote 952:

_Commentaries_, III. 72.

Footnote 953:

By 57 George III. c. 61.

Footnote 954:

In virtue of a series of Acts of which 14-15 Victoria c. 42 is the
latest.

Footnote 955:

See Stephen, _Commentaries_, II. 465-6.

-----

CHAPTER FORTY-FIVE.

Nos non faciemus justiciarios, constabularios, vicecomites vel ballivos,
nisi de talibus qui sciant legem regni et eam bene velint observare.

We will appoint as justices, constables, sheriffs, or bailiffs only
such as know the law of the realm and mean to observe it well.

The object of this plainly worded clause was to prevent the appointment
of unsuitable men to responsible offices under the Crown. The list of
officers given is a comprehensive one—justices, sheriffs, constables and
bailiffs—embracing all royal ministers and agents, both of the central
and of the local government, from the chief justiciar down to the
humblest serjeant.[956] The clause was directed in particular against
John’s foreign favourites such as the Poitevin Bishop of Winchester,
Peter des Roches,[957] who had wielded and abused the authority of chief
justiciar in 1214 when the king was abroad, or such as Engelard de
Cygony and the other tools of John’s extortions, stigmatized by name in
a later part of Magna Carta,[958] who had filled various posts as
sheriffs, wardens, and officials of the exchequer. Such men had no
interests at stake in England, and little love for its customs and free
traditions. In future John must choose a different type of servants,
avoiding all such unscrupulous men, whether Englishmen or foreigners, as
were ready to break the law in their master’s interests or their own.
There is thus no difficulty in understanding what class of men were here
excluded from office; but what class were to fill their places? Bishop
Stubbs, commenting on this passage, credits the draftsmen of the Charter
with an intention to secure the appointment of men well versed in legal
science: “on this principle the steward of a court-leet must be a
learned steward.”[959] The clause of Magna Carta, however, refers
exclusively to royal nominees, not to the officers appointed by mesne
lords to preside over their feudal courts. The barons appointed their
own stewards and bailiffs, and had no wish to hamper their own freedom
of choice; but only that of the king. Further, it was not great lawyers
whom the barons desired John to employ, but plain Englishmen with a
rough-and-ready knowledge of insular usage, who would avoid arbitrary
acts condemned by the law of the land. The barons at Runnymede in 1215
desired exactly what the council of St. Albans had desired on 4th
August, 1213, when it issued formal writs commanding all sheriffs and
foresters to observe the laws of Henry I. and to abstain from unjust
exactions;[960] and it must be remembered that these laws of Henry were
but the older laws of Edward Confessor slightly amended.

-----

Footnote 956:

Constable and bailiff are discussed _supra_, c. 24, and shown to
include forest magistrates, _supra_, c. 44.

Footnote 957:

See _supra_, 36–7, and cf. Blackstone, _Great Charter_, viii.

Footnote 958:

See c. 50.

Footnote 959:

_Const. Hist._, I. 578, n.

Footnote 960:

Cf. _supra_, p. 34.

-----

The attitude of John’s barons was the same as that of Henry’s barons,
when the latter declared in 1234 in such emphatic terms that they did
not wish the laws of England to be changed.[961] They were far from
desiring to be governed by ministers deeply versed in the science and
literature of jurisprudence, since these would necessarily have been
churchmen and civilians. The laws which the Crown’s officers must know
and observe were the old customary laws of England, as opposed alike to
the canon law and the civil law of Rome. Honest Englishmen were wanted,
with a reputation for straightforward dealing and in sympathy with
native prejudice. Crown ministers might do well enough without any
academic training in an age when only one short treatise on the law of
England had been written (that of Glanvill); while the stewards of court
leets, referred to by Bishop Stubbs, might even be ignorant of the
common law, provided they were versed in “the custom of the manor.”

-----

Footnote 961:

“_Nolunt leges Anglie mutare que usitate sunt et approbate._” See
Statute of Merton, c. 9.

-----

This provision of Magna Carta, directed primarily against alien
sheriffs, castellans, and other ministers, disappeared in 1216 (without
any comment in the so-called “respiting clause”), along with several
provisions of a temporary nature, also directed against foreigners. Even
if this well-meaning chapter of John’s Great Charter had remained in
force, it would not have effected much, in the absence of adequate
machinery to ensure its enforcement. In promising the selection of such
ministers as knew the law and meant to keep it, John remained sole judge
of the men appointed and their intentions. The clause indicated no
standard of fitness to which appeal could be made, no neutral arbitrator
to decide between the fit and the unfit, and no sanction to enforce
compliance on an unwilling king. Half a century later, the Provisions of
Oxford gave proof of some advance in political theory. They contained an
expedient, crude enough it is true, for constraining royal officials to
keep the law. Forms of the oaths of office to be taken by castellans and
ministers of all grades were carefully provided.[962] Even this was only
a first step towards settling a problem which was not completely solved
until, after the struggles of many centuries, the modern doctrine of
ministerial responsibility was firmly established.

-----

Footnote 962:

See _Select Charters_, 388–391, and Madox, II. 149, with authorities
there cited.

-----

CHAPTER FORTY-SIX.

Omnes barones qui fundaverunt abbatias, unde habent cartas regum Anglie,
vel antiquam tenuram, habeant earum custodiam cum vacaverint, sicut
habere debent.

All barons who have founded abbeys, concerning which they hold
charters from the kings of England, or of which they have
long-continued possession, shall have the wardship of them, when
vacant, as they ought to have.

The religious houses of the various orders, (abbeys, priories, and
convents), which had increased so rapidly in number since the reign of
Henry I., fell naturally into two classes according as they had been
founded by the king or by private individuals. The king or the great
baron, in bestowing lands on a religious foundation, reserved, either
expressly or by implication, certain valuable rights of property, of
which the control over the election of the abbot or prior, together with
the wardship of the fief during vacancies, were the most important. King
John, while by his separate charter to the clergy he had renounced in
favour of all churches and monasteries, cathedral and conventual, all
control over election of prelates, had carefully reserved his rights of
wardship; and the barons insisted that the proprietary rights of mesne
lords who had founded religious houses, should also be respected. John
however, wherever he had any plausible pretext, usurped the wardship
over private foundations, in addition to his own. It would appear from
the terms of a later chapter,[963] that in 1215 the Crown actually held
in ward certain abbeys founded by mesne lords, for provision is there
made for their restoration. The present chapter looks to the future,
forbidding new usurpations of this nature.

In the reissues of the Charter certain verbal changes occur, but it is
not clear that they imply any changes of substance. In 1216 the words
“and as it has been above declared” were added, implying that the rights
of mesne lords were to be restricted by the rules previously laid down
in chapter 5, as to wardship—rules especially applied to the lands of
bishoprics and religious houses in 1216 by a clause which had no
parallel in John’s charter.[964] In 1217 three other small changes tend
to widen the scope of the clause. The “barons who have founded abbeys”
of John’s grant become “the patrons of abbeys”; royal “charters” become
more explicitly “charters of advowson”; “ancient tenure” is expanded
into “ancient tenure or possession.”[965]

-----

Footnote 963:

See _infra_, c. 53.

-----

Is it possible that the influence of the Church was powerful enough at
Runnymede to prohibit all mention of lay “patrons” and lay presentations
or “advowsons”; whereas it was powerless to prevent the barons pressing
their rights of patronage two years later? John’s promise of free
canonical election[966] had interfered with royal patronage, and Stephen
Langton would be unwilling to admit a subject’s claim to rights which he
had forced the Crown to renounce. The question of lay patronage, indeed,
was not directly raised in any version of Magna Carta; but prior to 1215
John seems to have interfered between abbeys and their founders. On 16th
August, 1200 he granted to William Marshall, Earl of Pembroke, the
privilege of bestowing the pastoral staff of Nuthlegh Abbey, which lay
within that nobleman’s fief; this shows that John forbade appointments
without royal licence.[967] The present chapter of Magna Carta made
little difference in practice. Henry III. claimed wardship over abbeys
and priories formed by earls and barons on their own fiefs, and kept
them vacant, by preventing their patrons making appointments without his
licence.[968]

-----

Footnote 964:

Compare _supra_, p. 250.

Footnote 965:

This chapter in its final form (1217 and 1225) runs thus: _Omnes
patroni abbatiarum qui habent cartas regum Anglie de advocatione vel
antiquam tenuram vel possessionem habeant earum custodiam cum
vacaverint, sicut habere debent et sicut supra declaratum est_.

Footnote 966:

Cf. _supra_, p. 39.

Footnote 967:

See _New Rymer_, I. 81. John had also interfered “in the time of the
interdict” with what Robert fitz Walter considered his rights of
patronage over Binham Priory (a cell of St. Alban’s). See J. H. Round,
_Eng. Hist. Rev._, XIX. 710-1.

Footnote 968:

See Petition of Barons (c. 11), _Sel. Charters_, 384.

-----

CHAPTER FORTY-SEVEN.

Omnes foreste que afforestate sunt tempore nostro, statim
deafforestentur; et ita fiat de ripariis que per nos tempore nostro
posite sunt in defenso.

All forests that have been made such in our time shall forthwith be
disafforested; and a similar course shall be followed with regard to
river-banks that have been placed “in defence” by us in our time.

An analogy may be traced between the royal prerogatives of hunting and
of falconry here brought together. William the Conqueror claimed wide
and ill-defined rights to “afforest” whole districts at his discretion,
and in one well-known instance at least, the creation of the New Forest,
he made good his claim, at the cost of much suffering to his humbler
subjects. Large tracts of land were thus consecrated to the wild boar
and the stag. The king claimed somewhat similar powers for protecting
his preferential rights of fowling. If woods could be “afforested” for
hunting, rivers might be placed “in defence” for hawking. The parallel
must not be pushed too far. River-banks were preserved only for such
limited period as was covered by the king’s express command; and
although wardens were appointed to guard them,[969] the Crown never
established such absolute control over the banks of rivers as it did
within districts declared “afforested.”

-----

Footnote 969:

Mention of these officers is made in c. 48. The phrase “in defence” is
explained _supra_, pp. 357-8.

-----

The provision of the present chapter, defining what river-banks might be
“defended,” disappeared, together with the relative clause of chapter 48
(“_ripariis et earum custodibus_”), from the reissue of 1216; but, in
the respiting clause there was promised further deliberation, which
resulted in its replacement in chapter 20 of the final version of Magna
Carta.[970]

-----

Footnote 970:

Cf. _supra_, p. 356.

-----

More attention is usually paid to the bearing of the present chapter
upon the limits of the forests. John, if he had created no new forests,
had at least extended the boundaries of the old ones. All such
encroachments are to be immediately given up. This summary redress,
which implies that John’s aggressions were so notorious as to admit of
no dispute, should be contrasted with the more judicial procedure
appointed by chapter 53 for determining encroachments made by Henry II.
and Richard I. A somewhat similar distinction is also to be found in the
corresponding provisions of the Forest Charter of 1217 (chapters 1 and
3); but the line is there differently drawn. Chapter 1 of the _Carta de
foresta_ extends the summary methods of redress to the disafforesting of
all forests created by Richard as well as those created by John. The
terms of the later document are also more detailed, making more explicit
the meaning of the earlier grant. Both seem to be directed against
encroachments on the rights of landowners, affording no protection to
the poor. While they deny the Crown’s right to afforest private woods
“to the damage of any one” (that is, of barons or freeholders owning
them), they admit the legality of past acts, whether of Henry, of
Richard, or of John, in afforesting Crown lands, subject always to a
saving clause in favour of freeholders in right of common of
pasturage.[971]

-----

Footnote 971:

Mr. P. J. Turner, _Select Pleas of Forest_, xciii., points out that
although forests included open country as well as woods, yet _Carta de
foresta_ spoke only of “woods” in this connection.

-----

Even if Henry III. had cordially co-operated with his barons to
disafforest all tracts of ground afforested by Henry II. and his sons,
difficulties of definition would still have made the task tedious. As it
was, struggles to settle the boundaries embittered the relations between
Crown and Parliament, until the very close of Edward Plantagenet’s
reign. Only the leading steps in the slow process by which the
opposition triumphed need here be mentioned.

After the issue of the _Carta de foresta_ on 6th November, 1217,[972]
machinery was set in motion, in obedience to its terms, to ascertain the
old boundaries and to disafforest all recent additions. The work of
redress continued for some years, suffering no interruption from the
issue of the new royal seal at Michaelmas, 1218.[973] In face of many
difficulties only slow progress was possible. More strenuous efforts
followed the reissue of the Charters on 11th February, 1225;[974] for,
five days later, justices were appointed to make new perambulations,
which resulted in the disafforestation of wide tracts. Henry considered
himself, and with some reason, as unjustly treated by these justices, or
by the local juries on whose verdicts they had relied. After he had
proclaimed himself of age in January, 1227, he challenged their
findings; and this has been misinterpreted as an attempt to annul the
Forest Charter.[975]

-----

Footnote 972:

Cf. _supra_, p. 171.

Footnote 973:

Cf. _supra_, 180, and see _Select Pleas_, xcv.

Footnote 974:

Cf. _supra_, p. 181.

Footnote 975:

Cf. _Select Pleas_, xcix.; and see also _supra_, p. 184.

-----

Some of the knights who had perambulated the forests were persuaded or
coerced into acknowledging that they had made mistakes; and, after
further inquiry, Henry restored the wider bounds. His reactionary
measures went on for two years; but thereafter the frontiers were fixed,
in spite of many complaints, until strong pressure compelled Edward I.,
towards the close of his reign, to reopen the whole question.
Perambulations in 1277 and 1279 produced apparently no results. Renewed
complaints were followed by new perambulations in 1299-1300, the reports
of which were laid before a Parliament which met at Lincoln on 25th
January, 1301. The king, as the result of hostile forces converging from
several sides, had to surrender; and on 14th February he confirmed the
Forest Charter, and formally agreed to the reduced boundaries as defined
by the most recent inquests. Edward had acted under constraint: on this
plea he subsequently obtained from Pope Clement V. a bull, dated 29th
December, 1305, revoking all the concessions made at Lincoln.[976] The
Crown seemed thus to triumph once more; but the barons refused to accept
defeat, forcing upon Edward II. the acceptance of the narrower bounds as
they had been defined at his father’s Parliament in 1301. This
settlement was confirmed by statute in the first year of the reign of
Edward III.,[977] and that king failed in all attempts to escape from
its provisions. Thus the authoritative pronouncement made in 1301 by the
Parliament of Lincoln furnished the basis on which the protracted
controversy was finally determined.[978]

Footnote 976:

See _Select Pleas_, cv. Mr. Turner’s account of Edward’s conduct may
be compared with the estimate of M. Bémont, _Chartes_, xlviii.

Footnote 977:

1 Edward III., stat. 2, c. 1.

Footnote 978:

See _Select Pleas_, cvi. There was one exception. On 26th December,
1327, Edward III. had to submit to further disafforestations in
Surrey.

-----

The further history of the forest boundaries may be told in a few
sentences. No changes were made until the sixteenth century. When Henry
VIII. afforested the districts surrounding Hampton Court in 1540, he did
so by consent of Parliament, and on condition of compensating all those
who suffered damage. The same course was followed by Charles I. in
creating the Forest of Richmond in 1634. Finally, as a result of the
attempts of the Stewarts to revive obsolete forest rights, a statute of
the Long Parliament, reciting the Act of 1327, “ordained that the old
perambulation of the forest in the time of King Edward the First should
be thenceforth holden in like form as it was then ridden and
bounded.”[979]

-----

Footnote 979:

16 Charles I. c. 16.

-----

CHAPTER FORTY-EIGHT.

Omnes male consuetudines de forestis et warennis, et de forestariis et
warennariis, vicecomitibus et eorum ministris, ripariis et earum
custodibus, statim inquirantur in quolibet comitatu per duodecim milites
juratos de eodem comitatu, qui debent eligi per probos homines ejusdem
comitatus, et infra quadraginta dies post inquisicionem factam, penitus,
ita quod numquam revocentur, deleantur per eosdem, ita quod nos hoc
sciamus prius, vel justiciarius noster, si in Anglia non fuerimus.[980]

All evil customs connected with forests and warrens, foresters and
warreners, sheriffs and their officers, river-banks and their wardens,
shall immediately be inquired into in each county by twelve sworn
knights of the same county chosen by the honest men of the same
county, and shall, within forty days of the said inquest, be utterly
abolished, so as never to be restored, provided always that we
previously have intimation thereof, or our justiciar, if we should not
be in England.

-----

Footnote 980:

The last sixteen words, inclusive of “_per eosdem_,” appear at the
foot of both of the Cottonian versions of Magna Carta. Cf. _supra_,
194–7.

-----

This chapter is mainly, though not exclusively, a forest one. It
provides in a sweeping and drastic manner for the abolition of “evil
customs,” three groups of which are specially emphasized: (_a_) those
connected with forests and warrens (presumably royal warrens only), with
their officials; (_b_) those connected with sheriffs and their
subordinates; and (_c_) those connected with river-banks and their
guardians. The word “customs” is obviously here used in its wider sense,
embracing all usages and procedure, whether specially connected with
pecuniary exactions or not.[981] The word “evil” is not defined, but
here (in favourable contrast to elsewhere) machinery is provided for
arriving at a definition. This takes the form of a new application of
the useful _inquisitio_. In each county a local jury of twelve knights
was to be immediately chosen by “the good people” of that county, and
these twelve received a mandate to hold a comprehensive inquest into
“evil customs” generally. All practices condemned by them (after hearing
on oath smaller local juries, doubtless) were to be abolished within
forty days of the inquiry, “so that they shall never be restored.”

-----

Footnote 981:

Contrast the more restricted meaning of the same word in c. 41.

-----

At the end of the chapter appears a proviso that, before actual
abolition, notice must be sent to the king, or, in his absence, to his
justiciar. Although such intimation was absolutely necessary, both on
grounds of policy and of ordinary courtesy, it would appear that this
clause was inserted only at the instance of the king’s friends; at
least, it is written (as an afterthought) at the foot of two of the
copies of the Great Charter.

Whether acting under pressure or from grounds of policy, John lost no
time in instituting the machinery necessary for effecting this part of
the reforms. On the very day on which the terms of peace were finally
concluded between king and barons at Runnymede, namely, on 19th June,
1215, he began the issue of writs to sheriffs, warreners, and river
bailiffs. Within a few days every one of these had been certified of the
settlement arrived at, and had received commands to have twelve knights
chosen by the county in the first county court, who should make sworn
inquest into evil customs.[982]

-----

Footnote 982:

See _Rot. Pat._, I. 180, cited also _Select Charters_, 306–7. Cf.
_supra_, p. 47.

-----

These orders were obeyed: knights were appointed in the various
counties, who seem to have taken a liberal view of their own functions.
Far from confining themselves to declaring customs to be evil, or even
to seeing them abolished, they claimed to share with the sheriffs the
exercise of the entire executive authority of the county. Some warrant
for these pretensions may be found in the terms of a second series of
writs issued in the king’s name on 27th June and following days. These
were addressed to the sheriff and the twelve knights jointly, commanding
them to make instant seizure of all who refused to take, as required in
the previous writs, the oath of obedience to the twenty-five executors
of the Charter.[983] The revolutionary committee of the central
government had thus in each county local agents in the twelve knights
whose original duties had been to see evil customs abolished.

-----

Footnote 983:

Cf. _infra_, c. 61.

-----

The hatred which all classes bore to the forest laws is well illustrated
by the iconoclastic spirit in which these knights concurred with the
jurors of each small district, and with all others concerned, for the
drastic treatment of abuses. Moderate-minded men began to fear that
these sweeping changes would virtually abolish the royal forests
altogether (in their technical legal sense). Accordingly, the leading
prelates, who were in large measure responsible for inducing the king to
make truce at Runnymede, and were thus under a moral obligation to do
what they could to prevent the barons breaking faith, issued a written
protest. They declared that the chapter in question must be understood
by both parties “as limited,” and “that all those customs shall remain,
without which the forests cannot be preserved.”[984] Clearly, the whole
code of the forest laws was in danger of being swept out of existence,
as forming one huge “evil custom.” What effect, if any, this protest
had, is not known. The country was soon plunged in civil war, during the
continuance of which neither side had leisure for the reform of abuses,
however urgently required. In 1216 the subject was one of those
“respited” for future consideration, and in 1217 an attempt was made to
specify in detail those evil customs which were to be abolished. The
dangerous experiment of leaving such definition to local juries in each
district was not repeated.

-----

Footnote 984:

Cf. _supra_, p. 52. The text is given _Rot. Claus._, 17 John, m. 27,
d. and _New Rymer_, I. 134. It runs in name of the archbishops of
Canterbury and Dublin, and of the bishops of London, Winchester, Bath,
Lincoln, Worcester, and Coventry, forming (with one exception, the
bishop of Rochester) precisely those mentioned in the preamble to
Magna Carta.

-----

CHAPTER FORTY-NINE.

Omnes obsides et cartas statim reddemus que liberate fuerunt nobis ab
Anglicis in securitatem pacis vel fidelis servicii.

We will immediately restore all hostages and charters delivered to us
by Englishmen, as sureties of the peace or of faithful service.

A feature of John’s system of government was the constant demand for
hostages as guarantees of his subjects’ loyalty. Such an expedient was,
indeed, naturally resorted to in the Middle Ages upon special occasions,
as, for example, to secure the observance of a recent treaty, or where
the leaders of a rebellion, newly suppressed, had been spared on
condition of future good behaviour. Thus the Conqueror, in 1067, during
a forced absence from England immediately after its acquisition, took
with him Edgar Atheling and the Earls Morkere and Eadwin; and many other
instances readily occur. Such cases were, however, exceptional, until
John established an unfortunate claim to distinction as the only king of
England who ever resorted to such a policy, not merely in face of
danger, but as a constant and normal practice in times of peace. It may
be that his continual suspicions were well grounded; but this scarcely
excuses them, since it was his own bad government which goaded his
subjects into a condition of perpetual unrest.

John lived in his native England like a foreign conqueror in the midst
of a hostile race, keeping sons and daughters in his clutches to answer
for their parents’ attempts at revolt. This ingenious but unfair
practice accords well with what we know of John’s character and general
policy. It was a measure of almost devilish cunning for obtaining his
immediate aim, but likely to recoil on himself whenever a critical state
of his fortunes arrived. Its efficacy lay in this, that it forced the
hand of discontented magnates, compelling them to decide upon the
instant between the desperate expedient of open rebellion and the
delivery of their children to an unscrupulous enemy, thus renouncing,
perhaps for ever, the possibility of resistance or revenge, thereafter
to be purchased at too dear a price—the life of the hostage. By thus
paralyzing his enemies one by one, John hoped to render disaffection
innocuous. Those nobles whom the tyrant did not thus control through
their tenderest affections were too few for effective resistance. At the
slightest show of temper, they, too, were suddenly pounced upon for
hostages, thus joining the ranks of those who dared not rebel.[985]

-----

Footnote 985:

The only magnates not exposed to this dilemma were the prelates, whose
celibacy cut them adrift from family ties. They had no hostages to
give, and were, further, in the normal case, exempt from fear of
personal violence.

-----

The entire history of the reign shows of what excessive practical
importance this question of hostages had become. It abounds with
examples of the varied pretexts upon which John demanded them, and of
his drastic methods of visiting upon their heads the sins of those who
had pledged them. Thus, in 1201, John seized the castles of certain of
his barons; and one of them, William of Albini, only saved his
stronghold of Belvoir by handing over his son as a hostage.[986] In the
same year, the men of York offended the king by omitting to meet him in
procession when he visited their city, and by their failure to provide
quarters for the billeting of his archers. The king, as usual, demanded
hostages, but ultimately allowed the citizens to escape on payment of
£100 to buy back the king’s goodwill.[987]

-----

Footnote 986:

See R. Hoveden, IV. 161.

Footnote 987:

See _Rotuli de Finibus_, p. 119.

-----

Hardly a year passed without similar instances; but, apparently, it was
not until 1208 that the practice was enforced wholesale. In that year
the king’s abject fear of the effects of the Pope’s absolution of his
barons from their allegiance led to his demand that every leading man in
England should hand over his sons, nephews, or other blood relations to
the king’s messengers.[988]

-----

Footnote 988:

See R. Wendover, III. 224-5, and M. Paris, II. 523.

-----

The danger of failure to comply with such demands is illustrated by the
fate of Maud of Saint-Valery, wife of William de Braose, who refused
point-blank to hand over her grandchildren to a king who, she was unwise
enough to say, “had murdered his captive nephew.”[989] Two years later
John, after failing to extort enormous sums in name of fines, caused
her, with her eldest son, to be starved to death, a fate to which her
own imprudence had doubtless contributed.[990] John’s drastic methods of
treating his hostages may also be illustrated from the chronicles of his
reign, for example, from the fate of the youths he brought from Wales in
June, 1211. When he heard of the Welsh rebellion of the following year,
he ordered his levies to meet him at Nottingham. On his arrival, at the
muster, early in September, John found awaiting him a great concourse,
who were treated to an object lesson which long might haunt their
dreams. His passion at white heat, John incontinently hanged
eight-and-twenty defenceless boys of the noblest blood of Wales.[991]
This ghastly spectacle could not have been forgotten by any one then
present, when later in the same month the king, in the throes of sudden
panic, fled to London; and, secure in the fastnesses of the tower,
demanded hostages wholesale from all the nobles whose fidelity he
doubted. The inveterate Eustace de Vesci and Robert fitz Walter
preferred to seek safety in flight, the only alternative open to
them.[992] The others, with the Nottingham horror fresh in their
memories, were constrained to hand over, with feelings that may be
conceived, their sons and daughters to the tender mercies of John,
cunning and cruel by nature, and rendered doubly treacherous by
suspicion intensified by fear.

-----

Footnote 989:

R. Wendover and Matthew Paris, _Ibid._

Footnote 990:

See authorities cited by Miss Norgate, _John Lackland_, p. 288.

Footnote 991:

Cf. _supra_, p. 30.

Footnote 992:

Cf. _supra_, p. 30.

-----

The defects of this policy, in the long run, may be read in the events
which preceded Magna Carta. When John’s hold on the hostages was
relaxed, because of his preparations for the campaign of 1214, ending as
it did in utter discomfiture, the disaffected were afforded their
long-desired opportunity, and were stimulated to rapid action by the
thought that such a chance might never occur again. John, on his return,
held comparatively few hostages, and the northern barons saw that they
must act, if at all, before their children were once more in the
tyrant’s clutches.

Even in June, 1215, John had control over a few hostages, and the
chapter now under discussion demands the immediate restoration of those
of English birth (the Welsh receiving separate treatment) together with
the charters which John held as additional security, very much as a
creditor might hold the titles of a mortgaged property. This provision
of Magna Carta was immediately carried out. Letters were dispatched to
the custodians of royal hostages, ordering an immediate release.[993]
The practice of taking hostages, however, by no means ended with the
granting of the Great Charter. Before a year had run, some of the
insurgent nobles, repenting of their boldness, succeeded in making terms
with John by the payment of large sums of money and the delivery of
their sons and daughters in security for their future loyalty. Simon
fitz Walter, for example, thus gave up his daughter Matilda.[994]

-----

Footnote 993:

See for example a letter of 23rd June to Stephen Harengod, referred to
_supra_, p. 49.

Footnote 994:

See _Rotuli de Finibus_, 571. The custody of hostages might,
apparently, be a desirable office, since in 1199, Alan, the earl’s
son, offered three greyhounds for the custody of a certain hostage of
Brittany; so it appears from _Rotuli de Finibus_, p. 29.

-----

CHAPTER FIFTY.

Nos amovebimus penitus de balliis parentes Gerardi de Athyes, quod de
cetero nullam habeant balliam in Anglia; Engelardum de Cygony, Petrum et
Gionem et Andream, de Cancellis, Gionem de Cygony, Galfridum de Martinny
et fratres ejus, Philippum Marci et fratres ejus, et Galfridum nepotem
ejus, et totam sequelam eorundem.

We will entirely remove from their bailiwicks, the relations of Gerard
de Athyes (so that in future they shall have no bailiwick in England),
namely Engelard de Cygony, Peter, Gyon, and Andrew of the Chancery,
Gyon de Cygony, Geoffrey de Martyn with his brothers, Philip Mark with
his brothers and his nephew Geoffrey, and the whole brood of the same.

Chapter 45 sought to secure the appointment of suitable men to posts of
trust under the Crown; the present chapter definitely excludes from
bailiwicks (a comprehensive term embracing all grades of local
magistracies) one particular group of royal favourites. Their names
prove them of foreign extraction. They had come from Brabant, Flanders,
and Poitou,[995] and several of them stayed on in England and held
lucrative posts under Henry III. in spite of the ban here laid upon
them. The clause of John’s Charter which excluded them from office was
indeed omitted from future reissues, along with chapter 45.

-----

Footnote 995:

Cf. Bémont, _Chartes_, 22, n, and 116.

-----

The reasons which had rendered them obnoxious to the barons are not
explained, but may be readily imagined. They had filled the unpopular
posts of collectors of customs, wardens of forests, and commanders of
royal garrisons, and had distinguished themselves by their unscrupulous
zeal in pushing the king’s prerogatives connected with trade, castles,
forests, and purveyance.

The career of Engelard de Cygony may be taken as typical of the rest. He
was a nephew of Gerard de Athyes,[996] and was deep in the confidence of
his master, as is proved by the number of responsible offices with which
he was entrusted. We know that in 1211 he acted as Sheriff of
Gloucester, since he accounted to the Exchequer for the _firma
comitatus_. He further accounted for the _firma burgi_ of Bristol,[997]
which seems to imply interference with the chartered liberties of that
city. It was probably because John required his services elsewhere, that
some of his sheriff’s duties were performed by deputy, a burgess named
Richard rendering accounts on his behalf. Engelard also held pleas of
the Crown for Gloucestershire, in violation alike of the ordinance of
1194 forbidding any sheriff to act as justiciar in his own county, and
of the customary rule (confirmed only, not originated, by chapter 24 of
Magna Carta) which prevented sheriffs from holding pleas of the
Crown.[998] Several entries tell of barrels of wine which he took as
“prise” from ships entering the port of Bristol. For example, the
exchequer officials allowed him to deduct from the amount which he owed
as _firma_, the sum of 60s., in respect of four tuns of red wine, as
certified by the king’s writ,[999] an entry which suggests that he had
purchased from the Crown the profits yielded by the prerogative of
taking prise; and had then resold to the king the hogsheads actually
required for the royal use at 15s. each. Engelard also guarded a rich
treasure for the king at Bristol, probably as constable of the castle
there, sums being paid to him _ad ponendum in thesauro regis_.[1000] On
one occasion he was entrusted with the custody of more than 10,000 marks
of the king’s money.[1001] Hostages, as well as bullion, were placed
under his care; a writ dated 18th December, 1214, directed him to
liberate three noble Welshmen whom it mentioned by name.[1002]

-----

Footnote 996:

See R. Wendover, III. 238.

Footnote 997:

_Pipe Roll_, 12 John, cited Madox, I. 333.

Footnote 998:

_Ibid._, II. 146.

Footnote 999:

_Pipe Roll_, 12 John, cited Madox, I. 766.

Footnote 1000:

_Ibid._, I. 606.

Footnote 1001:

_Ibid._, I. 384.

Footnote 1002:

_Rot. Pat._, 16 John, m. 9 (I. 125), and _New Rymer_, I. 126.

-----

In the civil war to which the treaty of peace sealed at Runnymede was a
prelude, Engelard, then constable of Windsor Castle and warden of the
adjacent forest of Odiham, proved active in John’s service. He
successfully defended Windsor from the French faction, making vigorous
sorties until relieved by the king.[1003] He requisitioned supplies to
meet the royal needs; and a plea was brought against him so long
afterwards as 1232, in connection with twelve hogsheads of wine thus
taken.[1004] He acted as sheriff of Surrey under William Marshal, the
Regent, but was suspended from this office in 1218 in consequence of a
dispute with Earl Warenne.[1005] He remained warden of the castle and
forests for twenty years after the accession of Henry III.,[1006] and
his long services were rewarded with grants of land: in the county of
Oxford he held the manor of Benzinton, with four hundreds and a half,
during the king’s good pleasure;[1007] while his son Oliver received the
lucrative post of guardian over the lands and heirs of Henry de
Berkley.[1008]

-----

Footnote 1003:

See M. Paris, II. 665, who calls him “_Ingelardus de Athie_” and
describes him as _vir in opere martis probatissimus_. Cf. _Rot. Pat._,
9 Henry III. m. 9.

Footnote 1004:

See Bracton’s _Note Book_, No. 684.

Footnote 1005:

See _Rot. Pat._, 2 Henry III. m. 7.

Footnote 1006:

_Ibid._, 19 Henry III.

Footnote 1007:

See _Testa de Neville_, p. 18, and _Ibid._, p. 120.

Footnote 1008:

_Rot. Pat._, 9 Henry III. m. 6.

-----

In 1221, however, acting in consort with Falkes de Bréauté, Philip Mark,
and other castellans, Engelard supported earl William of Aumâle in his
resistance to the demands of Henry’s ministers, that all royal castles
should be restored to the king. Notwithstanding the secrecy with which
he sent men to the earl at Biham castle,[1009] he fell under suspicion
of treason, and escaped imprisonment only on finding hostages that he
would hold the castle of Windsor for the king, and surrender it at his
will.[1010] In 1236, he was relieved of some of his offices, but not of
all, for in 1254 he was two years in arrears with the _firma_ of the
manor of Odiham.[1011] In that year, apparently, he died; for the patent
roll contains a writ granting him permission to make his will, and an
entry in 1255 relates how “for good service done to the king by Engelard
de Cygony in his lifetime, the king granted to his executors that they
should be quit of all accounts to be rendered by them at the exchequer,
and of all averages of accounts, and of all debts and imposts.”[1012]
Engelard thus died, as he had lived, the trusted servant and favourite
of kings. His career illustrates how the very same men who had incurred
odium as the partizans of John became, when the civil war was over, the
instruments of his son’s misgovernment.[1013]

-----

Footnote 1009:

R. Wendover, IV. 66.

Footnote 1010:

_Annals of Dunstable_, III. 68.

Footnote 1011:

_Mem. Roll_, 28 Henry III., cited Madox, II. 201.

Footnote 1012:

_Mich. Communia_, 29 Henry III., cited Madox, II. 229.

Footnote 1013:

Some particulars respecting the other individuals named will be found
in Thomson, _Magna Charta_, 244–5. Philip Mark was Constable of
Nottingham under John (R. Wendover, III. 237), and Sheriff of
Nottingham both before and after 1215 (see _e.g._ _Rot. Claus._, I.
412), while Guy de Chancel in 1214 accounted for the scutage of the
honour of Gloucester (Madox, I. 639), and for the rent of the barony
of William of Beauchamp (_Ibid._, I. 717).

-----

CHAPTER FIFTY-ONE.

Et statim post pacis reformacionem amovebimus de regno omnes alienigenas
milites, balistarios, servientes, stipendiarios, qui venerint cum equis
et armis ad nocumentum regni.

As soon as peace is restored, we will banish from the kingdom all
foreign-born knights, cross-bowmen, serjeants, and mercenary soldiers,
who have come with horses and arms to the kingdom’s hurt.

John here binds himself to disband his foreign troops, who had acted as
the agents of his tyrannies, keeping the native English in subjection,
and ever ready to take the field in the event of rebellion. These men,
who had garrisoned the royal castles which formed such formidable
engines of oppression in the Middle Ages, are now to be banished “as
soon as peace is restored,” an indication that, even at the date of
Magna Carta, a state of virtual war was recognized. This promise was
partially fulfilled. On 23rd June writs were issued for the disbandment
of the mercenaries.[1014] The renewal of the civil war, however, was
followed by the enrolment of new bands of foreigners on both sides, and
these men long continued to exercise an evil influence in England. Their
presence was one of the main causes of the rebellion of 1224, after the
suppression of which most of them were again banished with their
ring-leader, Falkes de Bréauté, at their head.

-----

Footnote 1014:

See _Rot. Pat._, 17 John, m. 23 (_New Rymer_, I. 134).

-----

The words used to describe these soldiers are comprehensive.
_Stipendiarii_ embraced mercenaries of every kind: _balistarii_ were
cross-bowmen. This weapon, imported into England as a result of the
crusades, quickly superseded the earlier short bow, but had, in turn, to
succumb to the long bow, which was apparently derived from Wales, and
was developed as the regular weapon of one branch of the English army by
Edward I., who gained by means of it many battles against the Scotch and
Welsh, and made possible the later triumphs of the Black Prince and of
Henry V.

CHAPTER FIFTY-TWO.

Si quis fuerit disseisitus vel elongatus per nos sine legali judicio
parium suorum, de terris, castellis, libertatibus, vel jure suo, statim
ea ei restituemus; et si contencio super hoc orta fuerit, tunc inde fiat
per judicium viginti quinque baronum, de quibus fit mencio inferius in
securitate pacis: de omnibus autem illis de quibus aliquis disseisitus
fuerit vel elongatus sine legali judicio parium suorum, per Henricum
regem patrem nostrum vel per Ricardum regem fratrem nostrum, que in manu
nostra habemus, vel que alii tenent que nos oporteat warantizare,
respectum habebimus usque ad communem terminum crucesignatorum; exceptis
illis de quibus placitum motum fuit vel inquisicio facta per preceptum
nostrum, ante suscepcionem crucis nostre: cum autem redierimus de
peregrinacione nostra, vel si forte remanserimus a peregrinacione
nostra, statim inde plenam justiciam exhibebimus.

If any one has been dispossessed or removed[1015] by us, without the
legal judgment of his peers, from his lands, castles, franchises, or
from his right, we will immediately restore them to him; and if a
dispute arise over this, then let it be decided by the five-and-twenty
barons of whom mention is made below in the clause for securing the
peace.[1016] Moreover, for all those possessions, from which any one
has, without the lawful judgment of his peers, been disseised or
removed, by our father, King Henry, or by our brother, King Richard,
and which we retain in our hand (or which are possessed by others, to
whom we are bound to warrant them) we shall have respite until the
usual term of crusaders; excepting those things about which a plea has
been raised, or an inquest made by our order, before our taking of the
cross; but as soon as we return from our expedition (or if perchance
we desist from the expedition) we will immediately grant full justice
therein.

-----

Footnote 1015:

The _elongatus_ of the Charter replaces the _prolongatus_ of the
Articles of the Barons.

Footnote 1016:

That is, in the so-called “executive clause” the “_forma securitatis
ad observandum pacem_” of the Articles, which became chapter 61 of the
Charter (_q.v._).

-----

The Charter here reverts to a topic of vital interest to the barons, the
subject of illegal disseisins already raised in chapter 39, which is
here supplemented. Legal remedy is provided for everyone dispossessed by
the Crown “_sine legali judicio parium suorum_.” A distinction is drawn,
however, between two classes of wrongs, according as they have been
inflicted by John himself, where summary methods are to rule, or by his
predecessors, where less precipitate procedure must take its course.

The Articles of the Barons had recognized the same distinction, while
providing somewhat different treatment. Those disseised by Henry or
Richard were to get redress "according to the judgment of their peers in
the king’s court"; those disseised by John, “according to the judgment
of the twenty-five barons,” that is, of the executors, to be afterwards
more fully discussed. Both cases, however, were in the Articles
qualified by a stipulation which calls for comment. John had taken the
crusader’s vow a few months previous, and now claimed the usual three
years’ “respite” allowed to those preparing for the holy war, from all
legal proceedings against them. The barons, viewing John’s vow as a
deliberate and notorious perjury, rejected his claim. The point was
referred by the Articles of the Barons to arbitration. The prelates,
whose _judicium_ on this point was declared to be final (“_appellatione
remota_”), and who were bound to give an early decision (“_ad certum
diem_”), might not unreasonably have been suspected of partiality, since
“taking the cross” was not a step to be belittled by churchmen. Yet they
seem to have acted in a spirit of not unfair compromise, if the clause
as it finally appeared in John’s Magna Carta may be taken as giving the
substance of their award.

The crusader’s privilege was not allowed by Langton and his
fellow-arbitrators in cases where John himself had been the disseisor;
the twenty-five executors might there decide forthwith. Respite was
allowed, however, in respect of the disseisins of Henry and of Richard
(except where legal proceedings were already pending).[1017] The Charter
says nothing of the procedure to be adopted at the close of the three
years; but there was probably no intention to depart from the terms of
the Articles in this respect, namely, "judgment of peers in the king’s
court."

-----

Footnote 1017:

This “benefit of a crusader” was extended to John in three other sets
of complaints, specified in c. 53 (_q.v._).

-----

John had good reason to consider as unfair the mode here appointed for
deciding disputes as to disseisins effected by him. Many delicate points
would thus be referred to the summary decision of a baronial committee,
sure to be composed of his most bitter enemies—the very men, perhaps,
whom he had dispossessed. If the “judgment of the twenty-five” meant for
the barons “the judgment of peers,” it meant for the king the judgment
of inferiors and enemies.[1018]

-----

Footnote 1018:

This chapter embraced not merely estates still retained in John’s
possession, but also those granted out anew, the titles of which had
been guaranteed by the Crown. If the former owner recovered these, the
Crown was legally bound by feudal law to make good the loss inflicted
on the present holder by his eviction. The case of Welshmen is
specially treated in c. 56 (_q.v._).

-----

CHAPTER FIFTY-THREE.

Eundem autem respectum habebimus, et eodem modo, de justicia exhibenda
de forestis deafforestandis vel remansuris forestis, quas Henricus pater
noster vel Ricardus frater noster afforestaverunt, et de custodiis
terrarum que sunt de alieno feodo, cujusmodi custodias hucusque habuimus
occasione feodi quod aliquis de nobis tenuit per servicium militare, et
de abbaciis que fundate fuerint in feodo alterius quam nostro, in quibus
dominus feodi dixerit se jus habere; et cum redierimus, vel si
remanserimus a peregrinacione nostra, super hiis conquerentibus plenam
justiciam statim exhibebimus.[1019]

We shall have, moreover, the same respite and in 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 anyone 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.

-----

Footnote 1019:

The words, “_et eodem modo, de justicia exhibenda_,” and “_vel
remansuris forestis_” are written at the foot of both the Cottonian
versions. Cf. _supra_, 195, n. They make clear, rather than add to,
the meaning of the rest.

-----

This chapter makes an advance upon the Articles of the Barons, extending
to three kinds of abuses, not specially mentioned there, the respite
provided in chapter 52 for redressing acts of illegal disseisin. The
“close time” secured to John in virtue of his crusader’s vow is to cover
(_a_) inquiries into the proper boundaries of forests said to have been
extended by his father or by his brother; (_b_) wardships over the lands
of under-tenants usurped by him by reason of his illegal extension of
prerogative wardship, and (_c_) abbeys founded by mesne lords and seized
by John during vacancies in violation of the rights of wardship of such
founders.[1020]

-----

Footnote 1020:

It thus supplements three previous chapters (_a_) c. 47; (_b_) c. 37;
and (_c_) c. 46 respectively.

-----

CHAPTER FIFTY-FOUR.

Nullus capiatur nec imprisonetur propter appellum femine de morte
alterius quam viri sui.

No one shall be arrested or imprisoned upon the appeal of a woman, for
the death of any other than her husband.

The object of this chapter was to find a remedy for what the barons
evidently considered an unfair advantage enjoyed by women appellants,
who were allowed to appoint some champion to act for them in the
_duellum_, while the accused man had to fight for himself. The
connection between appeal and battle, and the distinction between battle
following on appeal and battle on a writ of right, have already been
explained.[1021] In civil pleas wherein combat was legally competent,
neither party could fight in person: champions were insisted on,
although _hired_ champions were condemned. In theory, these men were
witnesses, each swearing that he had actually seen the seisin—that is,
had been present at the infeftment of the claimant whose title he
supported, or at that of his ancestor from whom he inherited the
land.[1022] In criminal pleas, on the other hand, the parties must fight
in their own persons. This distinction is not so illogical as it seems
at first sight, for the appellant was supposed to be an eye-witness of
the crime[1023]; and the apparent anomaly disappears when both rules of
procedure are treated as deductions from the principle that the
combatants in all cases were witnesses whose conflicting testimonies
must be weighed in the balance of battle, with an overruling Providence
holding the scales.

-----

Footnote 1021:

Cf. _supra_, c. 36.

Footnote 1022:

Bracton, _folio_ 151 _b._, cites the case of a champion sentenced to
mutilation of a foot because he confessed that he was paid to appear,
and was not really a witness. The Statute of Westminster, I. (3 Edward
I. c. 41), enacted that champions need not swear to the personal
knowledge of what they maintained. See also Neilson, _Trial by
Combat_, 48–51.

-----

Footnote 1023:

The appellant “in all cases except murder, that is, secret homicide,
made oath as a witness that he had seen and heard the deed.” Neilson,
_Trial by Combat_, 48.

-----

In a case of murder, no private accuser would be heard unless he alleged
that he had seen the accused actually do the deed. The stringency of
this rule was, however, modified by legal fictions. The near relation,
or the feudal lord, of the slain man was treated as constructively
present at his slaying, because of the closeness of the bond of blood or
of homage between the two. This, at least, is the most plausible
interpretation of Glanvill’s words: “No one is admissible to prove the
accusation unless he be allied in blood to the deceased or be connected
with him by the tie of homage or lordship, _so that_ he can speak of the
death upon testimony of his own sight.”[1024]

-----

Footnote 1024:

Glanvill, XIV. c. 3.

-----

The rule also which required an appellant to offer proof by his own body
was relaxed in certain cases; women, men over sixty years of age, and
those with broken bones or who had lost a limb, an ear, a nose, or an
eye, were unable to fight effectively, and might therefore appear by
proxy.[1025] The privilege thus accorded to women was looked on with
much disfavour as conferring an unfair advantage as against appellees
who were not allowed to produce a substitute. Accordingly an option was
given the man accused by a woman; he might, in Glanvill’s words, elect
either "to abide by the woman’s proof or to purge himself by the
ordeal."[1026] This option was freely used; an appellee in 1201 was
allowed to go to the ordeal of water,[1027] while two years later when
the widow of a murdered man offered to prove her accusation “as the
court shall consider,” the accused was allowed to go to the ordeal, “for
he has elected to bear the iron.”[1028] After the virtual abolition of
ordeal in 1215, appeals by women were usually determined _per patriam_
(that is by the sworn verdict of a jury of neighbours). Such is the
doctrine of Bracton,[1029] whose authority is amply borne out by
recorded cases. Thus in 1221, a man accused by a woman of her husband’s
murder offered fifteen marks for a verdict of the jurors.[1030]

-----

Footnote 1025:

See Bracton, II. ff. 142 _b_, 145 _b_; also Neilson, _Trial by Combat_
47, and authorities there cited.

Footnote 1026:

Glanvill, XIV. c. 3.

Footnote 1027:

_Sel. Pleas of the Crown_, No. 1.

Footnote 1028:

_Ibid._, No. 68. Cf. No. 119.

Footnote 1029:

Bracton, _folio_ 142 _b_.

Footnote 1030:

_Select Pleas of the Crown_, No. 130.

-----

A woman’s right of accusation (even when thus safeguarded from abuse)
was restricted to two occasions, the murder of her husband and the rape
of her own person. Magna Carta mentions only one of these two grounds of
appeal; but silence on the subject of assault need not be interpreted as
indicating any intention to deprive women of their rights in such
cases.[1031]

-----

Footnote 1031:

The Act 6 Richard II. c. 6, to prevent the wife’s connivance, extended
the right of appeal in such cases to a woman’s husband, father, or
other near relative; but denied the appellee’s right to the option of
defending himself by battle—thus proving no exception to the policy of
discouraging the _duellum_ wherever possible.

-----

The present chapter of the Great Charter confines itself to appeals of
murder, declaring that no woman has the right to institute proceedings
in this way for the death of father, son, or friend, but only for that
of her husband. Hard as this rule may seem, the barons here made no
change on existing law. Glanvill does not seem to recognize the
possibility of a woman’s appeal of homicide save for the death of her
husband.[1032] He seems to deduce the reason for allowing it in that
case from the principle already explained: "A woman is heard in this
suit accusing anyone of her husband’s death, if she speak as being an
eye-witness to the fact, because husband and wife are one flesh"—another
example of constructive presence.[1033]

-----

Footnote 1032:

Glanvill, XIV. c. 3.

Footnote 1033:

Glanvill, XIV. c. 33, Fleta I. c. 3, seems by different words to
indicate only the same doctrine of constructive presence, when he
speaks in this connection “_de morte viri sui inter brachia sua
interfecti_,” although laboured explanations of this passage are
sometimes attempted, _e.g._ Coke, _Second Institute_, 93. Pollock and
Maitland (I. 468, n.) dismiss the phrase _inter brachia sua_ as "only
a picturesque ‘common form.’"

-----

There seems to be no authority whatever for Coke’s hasty inference from
the provisions of this chapter, that previous to 1215 a woman had an
appeal for the death of any one of her “ancestors.”[1034] The chapter,
in spite of its declaratory nature, seems an ungallant one, indicating
that the barons were more careful to guard themselves against
unnecessary risk than to champion the cause of defenceless women.[1035]

-----

Footnote 1034:

See Coke, _Second Institute_, p. 68, and contrast Pollock and
Maitland, I. 468. John’s justices rejected in 1202 a woman’s claim to
appeal for her father’s death, and some ten years later two other
claims for the death of sons. See _Select Pleas of the Crown_, Nos.
32, 117, and 118.

Footnote 1035:

A peculiarity in the wording of this clause should, perhaps, be
noticed. It restricts explicitly not appeals by women, but merely
“arrest and imprisonment” following on such.

-----

CHAPTER FIFTY-FIVE.

Omnes fines qui injuste et contra legem terre facti sunt nobiscum, et
omnia amerciamenta facta injuste et contra legem terre, omnino
condonentur, vel fiat inde per judicium viginti quinque baronum de
quibus fit mencio inferius in securitate pacis, vel per judicium majoris
partis eorundem, una cum predicto Stephano Cantuariensi archiepiscopo,
si interesse poterit, et aliis quos secum ad hoc vocare voluerit: et si
interesse non poterit, nichilominus procedat negocium sine eo, ita quod,
si aliquis vel aliqui de predictis viginti quinque baronibus fuerint in
simili querela, amoveantur quantum ad hoc judicium, et alii loco eorum
per residuos de eisdem viginti quinque, tantum ad hoc faciendum electi
et jurati substituantur.

All fines made with us unjustly and against the law of the land, and
all amercements imposed unjustly and against the law of the 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.

The thirty-seventh of the Articles of the Barons, forming the draft of
this chapter, refers specially to one particular class of illegal fines,
namely those exacted by John from defenceless widows in return for being
allowed the peaceful enjoyment of their legal rights of property in
their own and their husband’s estates (“_pro dotibus, maritagiis, et
hereditatibus_”). It forms thus a natural supplement to chapter 7. The
earlier chapter had confirmed widows in their rights for the future;
this one remits fines unjustly taken in the past. It is probable that
even the clause of the Articles of the Barons did not intend to limit
its own operation to this one group of unjust fines; and it mentions
amercements, without any qualification. In any view, the terms of Magna
Carta were broadened out to embrace illegal fines and amercements of
every sort.[1036]

-----

Footnote 1036:

In its expanded form the clause becomes a supplement, not merely to c.
7, but also to cc. 20, 21 and 22 (which defined procedure at
amercements), and to cc. 36 and 40 (which condemned John’s practice of
refusing writs and justice until heavy fines were offered for them).

-----

The distinction between fines and amercements, absolute in theory but
tending to become obliterated in practice, has been explained in a
former chapter.[1037] The system of arbitrary fines, always so galling a
feature in the Crown’s policy throughout the Middle Ages, culminated in
the reign of John, whose talents were well suited to the development of
its ingenious and mean details. Dr. Stubbs describes the product of his
labours as “the system of fines which was elaborated into that minute
and grotesque instrument of torture which all the historians of the
reign have dwelt on in great detail.”[1038] Hallam commented on this in
a passage which has become classical. "The bishop of Winchester paid a
ton of good wine for not reminding the king (John) to give a girdle to
the countess of Albemarle; and Robert de Vaux five best palfreys, that
the same king might hold his peace about Henry Pinel’s wife. Another
paid four marks for leave to eat (_pro licentia comedendi_)."[1039]

-----

Footnote 1037:

See _supra_, c. 20.

Footnote 1038:

See _Preface_ to W. Coventry, II. lxix.

Footnote 1039:

_Middle Ages_, II. 438. Hallam’s examples are all drawn from Madox, I.
507-9. Other illustrations of fines and amercements may be found under
several of the foregoing chapters. Every man who began a plea and lost
it, or abandoned it, was amerced.

-----

Unique procedure was provided by the present chapter for deciding
disputes as to the legality of fines and amercements. Authority to
decide was vested in a board of arbitrators to consist of thirteen or
more of the twenty-five executors, together with Stephen Langton and
such others as he chose to summon. No mention is made of the maximum
number whom the primate might thus nominate, and there is no attempt to
define their powers relative to those of the other members of the board,
a somewhat unbusinesslike omission, but one which testifies to the great
confidence placed in Langton by those who approved its terms. Care is
taken to prevent such members of the twenty-five as were likely to be
biased from sitting in judgments on suits like their own—a stipulation
which might with advantage have been extended to several other chapters.

This chapter, like others addressed to the special circumstances of
John’s reign, found no echo in future charters.

CHAPTER FIFTY-SIX.

Si nos disseisivimus vel elongavimus Walenses de terris vel libertatibus
vel rebus aliis, sine legali judicio parium suorum, in Anglia vel in
Wallia,[1040] eis statim reddantur; et si contencio super hoc orta
fuerit, tunc inde fiat in marchia per judicium parium suorum, de
tenementis Anglie secundum legem Anglie, de tenementis Wallie secundum
legem Wallie, de tenementis marchie secundum legem marchie. Idem facient
Walenses nobis et nostris.

-----

Footnote 1040:

The words “_in Anglia vel in Wallia_” are written at the foot of one
of the Cottonian versions, (cf. _supra_, 195, n.); but their omission
from their proper place is clearly a clerical error, since they appear
_in situ_ in the Articles of the Barons.

-----

If we have disseised or removed Welshmen from lands or liberties, or
other things, without the legal judgment of their peers in England or
in Wales, they shall be immediately restored to them; and if a dispute
arise over this, then let it be decided in the marches by the judgment
of their peers; for tenements in England according to the law of
England, for tenements in Wales according to the law of Wales, and for
tenements in the marches according to the law of the marches. Welshmen
shall do the same to us and ours.

This is the first of three chapters directed towards redressing wrongs
suffered by Welshmen: and the three taken together testify to the
importance attached by the barons to the value of the Welsh alliance.
Restoration is to be made (_a_) of illegal disseisins effected by John
(chapter 56); (_b_) of those effected by Henry II. and Richard I.
(chapter 57); and (_c_) of hostages and charters delivered to John as
pledges of peace (chapter 58).

The present chapter does for Welshmen what the first part of chapter 52
had already done for Englishmen. The reasons for treating Welshmen
separately were probably twofold, partly for the sake of emphasis, and
partly because some slight differences of detail were required.
“Judgment of peers,” indeed, was applied to both cases, but for the
dispossessed Welshmen, “_in marchia per judicium parium suorum_” takes
the place of the “_per judicium viginti quinque baronum_” provided for
Englishmen in like case. The “venue” was thus apparently fixed in the
marchland for all Welshmen’s cases, although three different kinds of
law were to be applied according to the situation of the property in
dispute. This clear indication of the existence of three distinct bodies
of law, one for England, another for Wales, and a third for the marches,
shows that the unifying task of the common law had not yet been
completed. Interesting questions of a nature analogous to those treated
by the branch of modern jurisprudence known as International Private Law
must constantly have arisen. The “peers” of a Welshman were not defined;
but a court composed of Welsh barons or freeholders was probably meant.

The final words of the chapter, declaring that Welshmen were to afford
reciprocal redress to John and his subjects, are interesting, since they
imply that Welshmen had, in some cases, successfully seized lands
claimed by Englishmen. Here, as usual, the barons were mainly interested
in securing their own rights.

CHAPTER FIFTY-SEVEN.

De omnibus autem illis de quibus aliquis Walensium disseisitus fuerit
vel elongatus sine legali judicio parium suorum per Henricum regem
patrem nostrum vel Ricardum regem fratrem nostrum, que nos in manu
nostra habemus, vel que alii tenent que nos oporteat warantizare,
respectum habebimus usque ad communem terminum crucesignatorum, illis
exceptis de quibus placitum motum fuit vel inquisicio facta per
preceptum nostrum ante suscepcionem crucis nostre: cum autem redierimus,
vel si forte remanserimus a peregrinacione nostra, statim eis inde
plenam justiciam exhibebimus, secundum leges Walensium et partes
predictas.

Further, for all those possessions from which any Welshman has,
without the lawful judgment of his peers, been disseised or removed by
King Henry our father, or King Richard our brother, and which we
retain in our hand (or which are possessed by others, to whom we are
bound to warrant them) we shall have respite until the usual term of
crusaders; excepting those things about which a plea has been raised
or an inquest made by our order before we took the cross; but as soon
as we return, (or if perchance we desist from our expedition), we will
immediately grant full justice in accordance with the laws of the
Welsh and in relation to the foresaid regions.

The provisions here made for restoring to Welshmen estates of which they
had been unjustly dispossessed by Henry or Richard are expressed in
terms identical with the similar provisions made in the latter part of
chapter 52 for Englishmen in like case, except for the last words, “in
accordance with the laws of the Welsh in relation to the aforesaid
districts,” indicating the three systems of law referred to in the
previous chapter. No machinery is here specified for declaring or
applying that law; the need for this indeed had been rendered remote by
John’s success before the arbitrators who determined that a crusader’s
privilege should be accorded him.[1041]

-----

Footnote 1041:

See _supra_, c. 52.

-----

The Articles of the Barons had, however, mentioned the procedure to be
adopted; and a comparison of the terms of articles 25 and 44 with those
of chapter 57 of the Charter suggests the antithesis between “_per
judicium parium suorum in curia regis_” for Englishmen in such cases,
and “_in marchia per judicium parium suorum_” for Welshmen.

CHAPTER FIFTY-EIGHT.

Nos reddemus filium Lewelini statim, et omnes obsides de Wallia, et
cartas que nobis liberate fuerunt in securitatem pacis.

We will immediately give up the son of Llywelyn and all the hostages
of Wales, and the charters delivered to us as security for the peace.

The treatment of hostages in general and Welsh hostages in particular
has already been fully illustrated.[1042] The patent and close rolls of
the reign show a constant coming and going of these living pledges of
the peace. A writ of 18th December, 1214, for example, bade Engelard de
Cygony restore three Welsh nobles to Llywelyn.[1043] Since then, new
hostages, including Llywelyn’s own son, had been handed over; and
charters also had apparently been pledged. John now promised
unconditionally to restore all of these; and the Welsh Prince must have
breathed more freely when this was fulfilled, allowing him, his son by
his side, with a light heart to prepare for the hostilities against the
English Crown, long seen to be inevitable and now to be resumed in
alliance with the disaffected English barons.

-----

Footnote 1042:

See _supra_, p. 517.

Footnote 1043:

See _supra_, p. 520.

-----

The Articles of the Barons had to some extent treated this question of
the Welsh hostages and charters as an open one, referring its final
determination to the arbitration of Stephen Langton and such others as
he might nominate to act with him. The point had apparently been decided
in favour of the Welsh before the Charter was engrossed in its final
form.[1044]

-----

Footnote 1044:

No. 45 of the Articles of the Barons is connected by a rude bracket
with No. 46 (relating to the king of Scotland); and a saving clause,
thus made applicable to both, is added with some appearance of haste:
“_nisi aliter esse debeat per cartas quas rex habet, per judicium
archiepiscopi et aliorum quos secum vocare voluerit_.” Cf. _supra_,
202. So far as related to Scotch affairs, the king’s _caveat_ found
its way, although in an altered form, into Magna Carta. See c.59.

-----

CHAPTER FIFTY-NINE.

Nos faciemus Alexandro regi Scottorum de sororibus suis, et obsidibus
reddendis, et libertatibus suis, et jure suo, secundum formam in qua
faciemus aliis baronibus nostris Anglie, nisi aliter esse debeat per
cartas quas habemus de Willelmo patre ipsius, quondam rege Scottorum; et
hoc erit per judicium parium suorum in curia nostra.

We will do toward Alexander, King of Scots, concerning the return of
his sisters and his hostages, and concerning his franchises, and his
right, in the same manner as we shall do towards our other barons of
England, unless it ought to be otherwise according to the charters
which we hold from William his father, formerly King of Scots; and
this shall be according to the judgment of his peers in our court.

A heterogeneous body of forces was drawn into temporary union by common
hatred of John. The barons welcomed allies whether from Wales or from
Scotland; if the three preceding chapters were a bid for Llywelyn’s
support, this one was dictated by a desire to conciliate Alexander. John
was forced to promise to restore to the king of Scots his sisters and
other hostages, together with his franchises and his “right.” This last
word covered Alexander’s claim to independence and also whatever title
he might prove good to various English fiefs which he claimed to hold
under the English Crown.

Opinions have been, and still are, sharply divided as to whether, or in
what degree, Scotland was subject to feudal overlordship. Of one fact
there can be no doubt; David I. and his successors, kings of Scotland,
had been wont to do fealty and homage to the kings of England; but this
fact has received widely different interpretations. Such homage, it is
argued, was performed in respect of certain English baronies which
happened to belong by hereditary right to the kings of Scotland, namely,
the earldom of Huntingdon, the isolated position of which enabled the
English Crown without danger to admit the claim, and the counties of
Northumberland, Cumberland, and Westmoreland, the proximity of which to
the border rendered their possession by a Scottish prince a source of
weakness to England.[1045] The terms in which the oath of homage was
taken did not indicate for what fiefs it was sworn—whether for the
English earldoms alone, or for the whole country north of Tweed as well.

-----

Footnote 1045:

See Stubbs, _Const. Hist._, I. 596.

-----

The position of the kings of Scots remained ambiguous in this respect,
until William the Lion was placed at a terrible disadvantage by his
capture at Alnwick in 1174, after supporting the rebellion against Henry
II. To gain his release he ratified the Treaty of Falaise on 8th
December, of that year, by which he agreed in future to hold all his
territories as fiefs of the English Crown. All his tenants in Scotland
were to take a direct oath to Henry; while hostages were surrendered
along with the castles of Berwick, Roxburgh, Jedburgh, Edinburgh, and
Stirling.[1046]

-----

Footnote 1046:

See Ramsay, _Angevin Empire_, 183–4. In the spring of 1185, Henry
confirmed William’s claim to the Earldom of Huntingdon, and the Scots
king, prior to Christmas, 1186, transferred it to his brother David.
_Ibid._, 226, n.

-----

This notable achievement of Henry’s diplomacy was, like other portions
of his life’s work, undone by his successor. Richard, preparing for his
crusade of 1190, sold recklessly every right that would fetch a price:
William bought back the independence of his ancient kingdom; but this
restoration of the relations that had prevailed previous to 1174,
involved a restoration of all the old ambiguities. When Richard died,
William despatched ambassadors to England, pressing his claims upon the
northern counties, promising to support John’s title in return for their
admission, and adding threats.[1047]

-----

Footnote 1047:

See Miss Norgate, _John Lackland_, 66.

-----

John avoided committing himself to a definite answer until his position
in England was assured; thereafter he commanded William to do homage
unconditionally. The Scots king disregarded the first summons, but
yielded to a second, taking the oath in public on the summit of the hill
of Lincoln, on 21st November, 1200, “reserving always his own
right.”[1048] The saving clause left everything vague as before.

-----

Footnote 1048:

See Stubbs, _Const. Hist._, I. 596, n., and Norgate, _John Lackland_,
73, 78. Cf. the words “_salvo jure suo_” with the “_et jure suo_” of
Magna Carta.

-----

In April, 1209, the king of Scots incurred John’s displeasure by
sheltering bishops who had supported the policy of Rome in the matter of
the interdict. William’s only son, Alexander, was demanded as a hostage,
or alternatively three border castles must be delivered up. After a
refusal, the old king gave in on 7th August, 1209.[1049] Alexander did
homage on behalf of his father “for the aforesaid castles and other
lands which he held,” and found sureties for the payment of 15,000
marks. William’s daughters, Margaret and Isabel (the two ladies referred
to in Magna Carta) became the wards of John, who had the right to bestow
them in marriage—stipulations which come suspiciously near an admission
of feudal vassalage.[1050] There seems, however, to have been some
understanding that one of them should wed John’s eldest son.[1051]
Margaret and Isabel, though kept virtually as prisoners in Corfe Castle,
Dorset, were yet honourably and kindly treated there. The Close Rolls of
the reign contain several entries (which read strangely enough among the
sterner memorials of John’s diplomacy) containing orders for supplying
them with articles of comfort and luxury. Thus on 6th July, 1213, John,
busy as he must have been with affairs of state, instructed the Mayor of
Winchester to despatch in haste for the use of his niece Eleanor and of
the two Scots princesses robes of dark green (tunics and super-tunics)
with capes of cambric and fur of miniver, together with twenty-three
yards of good linen cloth, with light shoes for summer wear, “and the
Mayor is to come himself with all the above articles to Corfe, there to
receive the money for the cost of the same.”[1052] Margaret and Isabel
had no reason to complain of such treatment, whatever thoughts the Mayor
of Winchester may have had of so liberal an interpretation of his civic
duties.

-----

Footnote 1049:

_New Rymer_, I. 103, where “Northampton” is apparently a mistake for
“Norham.” See Ramsay, _Angevin Empire_, 421, n.

Footnote 1050:

Ramsay, _Ibid._, and authorities there cited.

Footnote 1051:

Ramsay, _Angevin Empire_, 421, and authorities.

Footnote 1052:

_Rot. Claus._, I. 144, and I. 157. This Eleanor was the sister of
Prince Arthur. The fortunes of war had in 1202 placed both of them in
John’s hands. Arthur disappeared—murdered it was supposed; Eleanor
remained a prisoner for life; the Scots princesses were virtually her
fellow-prisoners for a time in Corfe Castle.

-----

Meanwhile, events in Scotland had favoured English pretensions. In the
year 1212, William, now in advanced age, although his son was still a
stripling, was compelled by internal troubles to appeal for aid to John.
Cuthred, a claimant for the Scottish throne as a descendant of Donald
Bane MacWilliam, having acquired a considerable following in Scotland,
endeavoured to dethrone King William; and his attempt seemed likely to
succeed, when English succour was asked and paid for by a Treaty signed
at Norham on 7th February, 1212. By this, William granted to John the
right to marry the young Alexander, then fourteen years of age, “_sicut
hominem suum ligium_,” to whomsoever he would, at any time within the
next six years, but always "without disparagement"—a phrase already
explained.[1053] William further pledged himself and his son to keep
faith and allegiance to John’s son, Henry, “as their liege lord” against
all mortals.[1054] The young Scottish prince thereafter journeyed
southwards in the train of John, by whom he was knighted on the 4th of
March at London. In June an English army entered Scotland; the pretender
was defeated and killed. William had saved his Crown, but his
independence was impaired. Scotland was gradually sinking into the
position of a vassal state. This was recognized at Rome. On 28th
October, 1213, Innocent III., among other healing measures consequent on
John’s surrender of his kingdom, ordered the king of Scotland and his
son to show fealty and devotion to John, in terms similar to those
addressed to the English barons.[1055]

William the Lion died at Stirling on 4th December, 1214, and Alexander
was crowned at Scone two days later,[1056] his peaceful succession being
facilitated by the knowledge that he had the support of John. On 28th
April, 1215, the English king, already deep in his quarrel with the
barons, acknowledged receipt of Thomas Colville and other Scotsmen as
hostages.[1057] Such was the position of affairs when John was brought
to bay at Runnymede. The barons were willing to bid for the alliance of
Alexander; yet it was unnecessary to bid high, since his unsatisfied
claims on the northern counties predisposed him against the English
king. The barons, therefore, did nothing calculated to endanger such
hold as England had over the Scottish Crown. John promised to restore
Alexander’s sisters and other hostages unconditionally, but used words
which committed him on none of the disputed points.[1058] Franchises and
“right” were to be restored only in so far as accorded with the terms of
King William’s “charters” as interpreted by the judgment of the English
barons in the court of the English king.[1059]

-----

Footnote 1053:

See _supra_, c. 6.

Footnote 1054:

_New Rymer_, I. 104. See also W. Coventry, II. 206.

Footnote 1055:

See _New Rymer_, I. 116.

Footnote 1056:

Ramsay, _Angevin Empire_, 477, n.

Footnote 1057:

See _Rot. Pat._, I. 134, and _New Rymer_, I. 120.

Footnote 1058:

Both ladies, however, remained prisoners after Henry III.’s accession.
Peter de Maulay, constable of Corfe Castle, was, in that king’s fifth
year, credited with sums expended on their behalf. _Rot. Claus._, I.
466; see also I. 483. Both found permanent homes in England—Margaret
as wife of Hubert de Burgh, Earl of Kent (mentioned in preamble of
Magna Carta); Isabel as wife of Roger Bigod, Earl of Norfolk (one of
the Charter’s executors). See Ramsay, _Angevin Empire_, 421, and
authorities there cited.

Footnote 1059:

This reference to charters was probably intended to cover (_a_) the
Treaty of Falaise, (_b_) the agreement of 7th August, 1209, and (_c_)
the writ of 7th February, 1212, with the other charters to which it
refers. It called itself a charter, and suggested others by the words
_hinc et inde_.

-----

The allusion to the Scottish king as one among “our other barons of
England” need not be pressed against Alexander any more than similar
expressions should be pressed against John, whose position as Duke of
Normandy and Aquitaine in no way made England a fief of the French
Crown. In questions affecting his feudal position in France, John’s
peers were the dukes and counts of that country; and similarly those who
had a right to sit in judgment as Alexander’s peers over his claims to
English fiefs were the English earls and barons. Such a tribunal was not
likely to give decisions favourable to Scots pretensions at the expense
of England.[1060]

Alexander, though no party to the treaty at Runnymede, was willing to
extract such benefit from it as he could. Accordingly, on 7th July,
1215, he despatched the Archbishop of St. Andrews and five laymen to
John “concerning our business which we have against you to be transacted
in your court.”[1061] Nothing came of this; and when the civil war began
Alexander invaded England in order to push his claims. John swore his
usual oath, "by God’s teeth," that he would “chase the little red-haired
fox-cub from his hiding holes.”[1062] Neither Alexander’s participation
in the war nor the subsequent efforts of diplomacy achieved settlement
of the questions in dispute. None of the latent ambiguities had been
finally removed when the relations between the two countries entered on
a new phase as a consequence of the attempts at annexation made by
Edward I., “the hammer of the Scots.”

-----

Footnote 1060:

No. 46 of the Articles of the Barons (as qualified by the clause in
the bracket) referred the question of Alexander’s “right” in reference
to his father’s charters to the judgment of Langton and his nominees,
for which Magna Carta substituted “judgment of his peers in our
court.”

Footnote 1061:

_New Rymer_, I. 135.

Footnote 1062:

Matthew Paris, _Chron. Maj._, II. 642: “_Sic fugabimus rubeam
vulpeculam de latibulis suis_.”

-----

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.

-----

CHAPTER SIXTY-ONE.

Cum autem pro Deo, et ad emendacionem regni nostri, et ad melius
sopiendam discordiam inter nos et barones nostros ortam, hec omnia
predicta concesserimus, volentes ea integra et firma stabilitate in
perpetuum[1069] gaudere, facimus et concedimus eis securitatem
subscriptam; videlicet quod barones eligant viginti quinque barones de
regno quos voluerint, qui debeant pro totis viribus suis observare,
tenere, et facere observari, pacem et libertates quas eis concessimus,
et hac presenti carta nostra confirmavimus, ita scilicet quod, si nos,
vel justiciarius noster, vel ballivi nostri, vel aliquis de ministris
nostris, in aliquo erga aliquem deliquerimus, vel aliquem articulorum
pacis aut securitatis transgressi fuerimus, et delictum ostensum fuerit
quatuor baronibus de predictis viginti quinque baronibus, illi quatuor
barones accedant ad nos vel ad justiciarum nostrum, si fuerimus extra
regnum, proponentes nobis excessum, petent ut excessum illum sine
dilacione faciamus emendari. Et si nos excessum non emendaverimus, vel,
si fuerimus extra regnum justiciarius noster non emendaverit, infra
tempus quadraginta dierum computandum a tempore quo monstratum fuerit
nobis vel justiciario nostro si extra regnum fuerimus, predicti quatuor
barones referant causam illam ad residuos de viginti quinque baronibus,
et illi viginti quinque barones cum communa tocius terre distringent et
gravabunt nos modis omnibus quibus poterunt, scilicet per capcionem
castrorum, terrarum, possessionum, et aliis modis quibus poterunt, donec
fuerit emendatum secundum arbitrium eorum, salva persona nostra et
regine nostre et liberorum nostrorum; et cum fuerit emendatum intendent
nobis sicut prius fecerunt. Et quicumque voluerit de terra juret quod ad
predicta omnia exequenda parebit mandatis predictorum viginti quinque
baronum, et quod gravabit nos pro posse suo cum ipsis, et nos publice et
libere damus licenciam jurandi cuilibet qui jurare voluerit, et nulli
umquam jurare prohibebimus. Omnes autem illos de terra qui per se et
sponte sua noluerint jurare viginti quinque baronibus, de distringendo
et gravando nos cum eis, faciemus jurare eosdem de mandato nostro, sicut
predictum est. Et si aliquis de viginti quinque baronibus decesserit,
vel a terra recesserit, vel aliquo alio modo impeditus fuerit, quominus
ista predicta possent exequi, qui residui fuerint de predictis viginti
quinque baronibus eligant alium loco ipsius, pro arbitrio suo, qui
simili modo erit juratus quo et ceteri. In omnibus autem que istis
viginti quinque baronibus committuntur exequenda, si forte ipsi viginti
quinque presentes fuerint, et inter se super re aliqua discordaverint,
vel aliqui ex eis summoniti nolint vel nequeant interesse, ratum
habeatur et firmum quod major pars eorum qui presentes fuerint
providerit, vel preceperit, ac si omnes viginti quinque in hoc
consensissent; et predicti viginti quinque jurent quod omnia antedicta
fideliter observabunt, et pro toto posse suo facient observari. Et nos
nichil impetrabimus ab aliquo, per nos nec per alium, per quod aliqua
istarum concessionum et libertatum revocetur vel minuatur; et, si
aliquid tale impetratum fuerit, irritum sit et inane et numquam eo
utemur per nos nec per alium.

Since, moreover, for God and the amendment of our kingdom, and for the
better allaying of the quarrel that has arisen between us and our
barons, we have granted all these concessions, desirous that they
should enjoy them in complete and firm endurance for ever, we give and
grant to them the underwritten security, namely, that the barons
choose five-and-twenty barons of the kingdom, whomsoever they will,
who shall be bound with all their might, to observe and hold, and
cause to be observed, the peace and liberties we have granted and
confirmed to them by this our present Charter, so that if we, or our
justiciar, or our bailiffs or any one of our officers, shall in
anything be at fault toward anyone, or shall have broken any one of
the articles of the peace or of this security, and the offence be
notified to four barons of the foresaid five-and-twenty, the said four
barons shall repair to us (or our justiciar, if we are out of the
realm) and, laying the transgression before us, petition to have that
transgression corrected without delay. And if we shall not have
corrected the transgression (or, in the event of our being out of the
realm, if our justiciar shall not have corrected it) within forty
days, reckoning from the time it has been intimated to us (or to our
justiciar, if we should be out of the realm), the four barons
aforesaid shall refer that matter to the rest of the five-and-twenty
barons, and those five-and-twenty barons shall, together with the
community of the whole land, distrain and distress us in all possible
ways, namely, by seizing our castles, lands, possessions, and in any
other way they can, until redress has been obtained as they deem fit,
saving harmless our own person, and the persons of our queen and
children; and when redress has been obtained, they shall resume their
old relations towards us. And let whoever in the country desires it,
swear to obey the orders of the said five-and twenty barons for the
execution of all the aforesaid matters, and along with them, to molest
us to the utmost of his power; and we publicly and freely grant leave
to every one who wishes to swear, and we shall never forbid anyone to
swear. All those, moreover, in the land who of themselves and of their
own accord are unwilling to swear to the twenty-five to help them in
constraining and molesting us, we shall by our command compel the same
to swear to the effect foresaid. And if any one of the five-and-twenty
barons shall have died or departed from the land, or be incapacitated
in any other manner which would prevent the foresaid provisions being
carried out, those of the said twenty-five barons who are left shall
choose another in his place according to their own judgment, and he
shall be sworn in the same way as the others. Further, in all matters
the execution of which is entrusted to these twenty-five barons, if
perchance these twenty-five are present and disagree about anything,
or if some of them, after being summoned, are unwilling or unable to
be present, that which the majority of those present ordain or command
shall be held as fixed and established, exactly as if the whole
twenty-five had concurred in this; and the said twenty-five shall
swear that they will faithfully observe all that is aforesaid, and
cause it to be observed with all their might. And we shall procure
nothing from anyone, directly or indirectly, whereby any part of these
concessions and liberties might be revoked or diminished; and if any
such thing has been procured, let it be void and null, and we shall
never use it personally or by another.

This important chapter stands by itself, providing machinery for
enforcing all that precedes it. It thus forms what modern jurisprudence
would describe as the “sanction” of the whole, but what was known in the
current phrase of its own day as “the form of security” (_forma
securitatis ad observandum pacem et libertates_).[1070] It contains the
only executive clause of the Charter, the sole constitutional machinery
provided for enforcing the rights now defined on parchment, the sole
protection against future attempts of the king to render them of no
effect.

-----

Footnote 1070:

This phrase occurs in the 49th (and last) of the Articles of the
Barons as the title of a clause which is separated from the others by
a blank on the parchment of the width of several lines of writing:
“_Haec est forma securitatis_,” etc. The words are not used as a
heading in the present chapter itself, but c. 52 refers to c. 61 as
the clause “_in securitate pacis_,” and c. 62 refers to the same as
“_super securitate ista_.”

-----

I. _The Nature of the “Security” or legal Sanction._ The procedure
devised for enforcing the Charter was exceedingly crude: John conferred
upon twenty-five of his most bitter enemies a legal right to organize
rebellion, whenever in their opinion he had broken one of the provisions
of Magna Carta. Violence might be legally used against him, until he
redressed their alleged grievances “to their own satisfaction”
(_secundum arbitrium eorum_). If it had been possible to put so violent
an expedient in practice, the “sovereignty,” or supreme power in
England, would have been split into two for practical purposes. While
the old monarchy remained theoretically intact, John would have held the
sceptre, still nominally his, only until his opponents declared that he
had broken some part of the Charter, when, by his own previously-granted
mandate, it would pass, along with wide powers of coercion, to the
twenty-five barons forming what is sometimes described as a Committee of
Executors, but which was rather a Committee of Rebellion.[1071] Instead
of using, as was afterwards done with steadily increasing success, the
king’s own administrative machinery and his own servants to restrain his
own misdeeds, the barons preferred to set up a rival executive of their
own, with wide but ill-defined powers, and connected with the older
executive by no constitutional bonds. So long as a single alleged
grievance remained unredressed, a new administration composed of John’s
political antagonists existed in an attitude of, at best, armed
neutrality, side by side with King John as the representative of the
older system of monarchic administration.

Footnote 1071:

Cf. S. R. Gardiner, _Short History of England_, 183: “a permanent
organization for making war against the king.”

-----

The procedure for redressing grievances was described in some detail;
the wronged party must make known his case to four barons of the
twenty-five, and these would then personally make it known to the king,
and ask redress. John was allowed time to effect this, but if he refused
or delayed, then compulsion might be used. The Articles of the Barons
had left the maximum term of delay unspecified, merely saying “within a
reasonable time to be determined in the Charter.” The Charter did
determine this, naming forty days. Compulsion might take any form (for
example seizure of castles, lands, and personal estate), except violence
against the person of the king, or against his wife or children. The
present chapter, then, contained the only legal sanction mentioned in
the Charter, and this may be briefly summarized as the delegation by
John to a revolutionary committee of the baronial opposition, of wide
powers of coercion to be used against him.

II. _Minor Details of the Scheme._ Although the whole expedient seems
utterly chimerical to the modern mind, the opposition leaders in 1215
evidently thought they had devised a practicable scheme of government.
This is shown by the care with which they elaborated the procedure to be
adopted at different stages and in various contingencies.

(1) _Appointment of the twenty-five executors._ The members of the
committee were to be, in the first instance, “elected” (a loose word
already discussed) by the “barons.” The _majores barones_ of chapter 14
would undoubtedly have the controlling voice; but the _minores barones_
might possibly have taken some share in the appointment. Vacancies which
occurred through death, absence from England, or any other cause, were
to be filled by the method now known as “co-optation.” The committee,
once appointed, would form a close corporation; no one uncongenial to
the majority could gain admission—an arrangement with a thoroughly
oligarchic flavour. The provision for supplying vacancies caused by
death proves that the scheme was not to be temporary, but to last during
John’s lifetime or longer. Twenty-five magnates seem to have been
actually selected. The writs issued to the Sheriffs on 19th June command
the enforcement of the oath to the twenty-five barons, but do not
mention them by name. Matthew Paris supplies the omission, and though he
does not disclose the source of his information, it is unlikely that so
comprehensive a list could be entirely a work of the imagination.[1072]
They occur in the following order, the earls of Hertford, Aumâle,
Gloucester, Winchester, Hereford, Norfolk, and Oxford, William Marshall
the younger, Robert fitz Walter the elder, Gilbert de Clare, Eustace de
Vesci, Hugh Bigod, William of Mowbray, William Hardell (Mayor of
London), William de Lanvalei, Robert de Ros, John de Lacy (Constable of
Chester), Richard de Perci, John fitz Robert, William Mallet, Geoffrey
de Say, Roger de Mumbezon, William of Huntingfield, Richard de
Muntfitchet, and William of Albini.[1073] There are here no churchmen
and no members of the moderate party whose names appear in the preamble.
All except two, or at the most three, of the twenty-five were drawn from
those factions of the baronage who were the declared enemies of
John.[1074] It was an oligarchy of disaffected Crown tenants, whose
baronial homogeneity was only broken by the presence of one
representative of other classes, the Mayor of London. Such a committee
was not likely to use the excessive powers delegated to it by John to
further any other interests than its own. Even Stephen Langton and his
fellow-prelates were soon to discover this, as the two protests issued
by them clearly prove.

-----

Footnote 1072:

R. Wendover, from whom Paris borrows so freely, gives no list.

Footnote 1073:

The list is taken from Matthew Paris, _Chron. Maj._, II. 604-5, as
corrected by Blackstone, _Great Charter_, p. xx., after collation with
a marginal note on the Harleian MS. of the charter (cf. _supra_, 198,
n). Paris gives “Boys” in place of “Ros,” and “Roger de Munbrai” in
place of “Roger of Mumbezon.” This list should be contrasted with
(_a_) that of the moderate party named in the preamble to Magna Carta,
and (_b_) that of John’s foreign favourites named in c. 50. For
biographical information, see Thomson, _Magna Charta_, 270–312.

Footnote 1074:

These three were Earl Aumâle (a title apparently sometimes exchanged
for that of Earl of York, see Round, _Geoffrey de Mandeville_, 157,
n.), William of Albini, and, possibly, Geoffrey de Say (see Stubbs,
_Const. Hist._, I. 583).

-----

(2) _A majority of those present to form a quorum._ Driven by the
necessities of the case, the barons devised, or stumbled upon, a
peculiarly modern expedient. The presence of every member of the
committee of twenty-five could not reasonably be expected upon every
occasion, while absolute unanimity on questions of delicacy would be
difficult to obtain. It was provided, accordingly, that the will of the
majority of those present should prevail. It would be inaccurate to say,
in modern phraseology, that thirteen formed a quorum, since the quorum
varied with the number of those present. It is notable that no provision
was made for summoning or constituting meetings of the committee endowed
with these tremendous powers. Room was thus left for packed meetings of
one faction being hurriedly convened and usurping the rights of the
whole body. The precedent thus tentatively introduced for the right of a
majority to act for the whole was followed only timidly and at long
intervals. Still, its appearance in John’s Charter marks a stage in the
advance of the valuable principle of modern politics which substitutes
the “counting of heads for the breaking of them.”

(3) _The sub-committee of four._ Four of the twenty-five Executors were
to act as a medium of intercourse between aggrieved individuals and the
king, being charged with the duty of hearing complaints and laying them
before John. Such a position would involve wide discretionary powers;
for if the four barons refused to endorse the justice of the complaint,
John also would be in safety to refuse.[1075]

-----

Footnote 1075:

An alternative explanation is also possible, namely, that the function
of intermediary might be exercised by any four members of the
twenty-five. In that view, an aggrieved individual might have pressure
placed upon the king if he persuaded any four to act together in
support of his claim. This would imply a second quorum, this time of
four, for a special purpose, in addition to the quorum of varying
numbers already discussed. In either view, the road to redress would
be easier for the great man than for his obscure neighbour.

-----

(4) _Local agents of the twenty-five executors._ In each county the
twelve knights, whose original function was to preside at inquiries into
“evil customs,” came to act as the local representatives of the
revolutionary committee, being associated with the sheriff in the
discharge of all his duties and armed with power to constrain him to
carry out the provisions of Magna Carta, very much as the twenty-five
were authorized to constrain the king. In particular, these knights were
charged with the enforcement of the oath of obedience to the
revolutionary committee, and with the confiscation of the property of
all who refused.[1076]

-----

Footnote 1076:

Cf. _supra_, c. 48.

-----

(5) _The part to be played by the public._ The king authorized his
subjects to side with the executors and against him if he should violate
the Charter, and to assist them in such acts of violence as the forcible
seizure of his castles, lands, and personal estate; for his general
mandate was granted to the twenty-five “_cum communa totius terre_,”
while licence was “freely and publicly” bestowed on everyone so disposed
to swear obedience to the Executors in all such acts, and to bring their
weight to bear on the king to the best of their ability. Two aspects of
this provision require special attention: (_a_) _Its relation to
allegiance and treason._ It was intended to operate as a provisional
release of John’s subjects from their oaths of fealty and homage, and
consequently from the pains and penalties of the treason laws. John
solemnly authorized his subjects, in certain circumstances, to transfer
their allegiance from himself to the committee of his foes. If they
refused, he promised to compel them; and on 27th June, 1215, writs were
actually issued instructing the seizure of the lands and goods of all
who would not swear to obey the twenty-five.[1077] (_b_) _Communa totius
terre._ The “community of the whole land” was thus to afford active help
in subjecting the king to the reign of law; and the phrase has been
pressed into the service of democracy by enthusiasts who seek to magnify
modern conceptions by finding their roots in the past. Few words of
medieval Latin offer a more tempting field to enquirers than this
_communa_, which, with its English and French equivalents, holds the key
to many problems of constitutional origins. A group of interesting
questions clusters round the three words “borough, guild, and commune,”
and the appearance in Magna Carta of a body described as a “commune”
(_communa totius terre_) in conjunction with an oath of obedience to a
revolutionary committee suggests an interesting comparison with the form
of civic constitution known in that age as “the sworn commune.”[1078] A
second field of enquiry, equally alluring, is suggested by the fact that
the lower chamber of the Mother of Parliaments, the English “House of
Commons,” was originally composed of the representatives of the various
communes or communities known as counties and boroughs respectively.

-----

Footnote 1077:

See Appendix.

Footnote 1078:

It was only fourteen years since London (in 1191), probably following
the lead of Rouen, had extorted its “sworn commune” from Prince John
as the price of its support (cf. _supra_, c. 13). It might be
dangerous, however, to push so tempting an analogy too far.

-----

These wider questions are here referred to merely as illustrations of
the difficulties that lurk in the word “commune,” and in the equally
perplexing phrase “commune of the whole land.”[1079] The mere use of
such a phrase cannot be accepted as a proof that the Charter rests on a
broad popular basis.

-----

Footnote 1079:

Cf. _supra_, pp. 137-8.

-----

III. _Criticism of the Scheme._ The faults of the scheme, whether viewed
from the side of theory or of practice, are obvious. It was a violent
and unnatural measure, full of immediate dangers, and calculated to
exercise a baneful influence on constitutional development in the
future. The fact that Magna Carta provided no better sanction for its
own enforcement than the right of legalized rebellion has already been
discussed as its cardinal defect.[1080] Instead of preventing the king
from inflicting wrongs, it merely provided forcible measures for the
redress of those already committed, thus adding the crowning evil of
civil war to those minor evils it sought to reform. That the whole
scheme was foredoomed to failure constitutes perhaps its least
conspicuous fault in the eyes of later history. It is instructive to
note a few of its other defects in detail.

-----

Footnote 1080:

See _supra_, p. 150.

-----

(1) The scheme challenged hostility by its want of moderation. It aimed
at reducing the Crown at one blow from the plenitude of irresponsible
tyranny to a position of degrading impotence. On every vexed political
question of the day, John’s authority would have been superseded by that
of twenty-five of the most hostile faction of the baronage. If the king
thought himself aggrieved in anything, he would require to plead his
cause humbly before a tribunal in which his opponents sat as judges. The
scheme was thus repugnant to the mass of loyal Englishmen, who cherished
a respect for the time-honoured principle of monarchy. No king with a
grain of self-respect would long submit tamely to a position so
illogical and degrading—to remain a sovereign whose “sovereignty”
existed merely on the sufferance of his enemies, a puppet-king whose
subjects had the legal right to coerce him. The powers thus conferred on
a baronial committee in 1215 were more sweeping than those conferred on
a similar committee in 1258, and yet the Parliament which appointed the
latter has been branded for all time as “the Mad Parliament,” because of
the violence of its measures against the king.

(2) Rebellion, even where morally justified, is essentially and
necessarily illegal; to attempt to map out for it a legitimate sphere of
action is to attempt the logically impossible. The barons, in their
dearth of political experience, and in the extremity of their need, had
demanded and obtained something more dangerous than the amplest measure
of constitutional authority. They had failed to rise to the true
conception of a limited monarchy. Their scheme recognized a king still
absolute in some matters, but in others powerless and abject. They set
up side by side two rival Executives, each in different circumstances
supreme. The relations of the two were far from accurately defined, even
in theory, while collisions were certain to occur frequently in
practice. The powers of the twenty-five, a body which received no proper
organization, were those of aggression rather than of administration.
Viewed in this light, the claims of the barons to constructive
statesmanship rank extremely low.

(3) The powers of the Revolutionary Committee, excessive though
ill-defined, backed by the sworn obedience of all classes of the nation,
would tend completely to paralyze the king. The nominal sovereign,
always nervous under this sword of Damocles, would lose all power of
initiative, while the committee, so powerful to reduce him to impotence,
would be powerless alike to goad him into action or to act in his stead.
The Revolutionary Committee had been planned as a drag on a bad
executive, not as a good executive to take its place.

(4) Even as a drag, however, the efficiency of the committee would have
been completely neutralized in either of two contingencies: if the
barons composing it disagreed among themselves, or, if the king refused
to surrender, preferring the appeal to arms. The monarch had always the
alternative of civil war, and the material and moral advantage of acting
on the defensive lay with him; while the committee had to face the risks
to which an attacking party is invariably exposed. Not a single step to
restrain the king could legally be taken until he had precipitated
matters by committing a clear act of aggression, and had thereafter
received formal intimation followed by an interval of forty days, during
which he might complete his preparation for war without fear of
interruption.

(5) If the scheme of the barons seems ill-suited to meet the needs of
the hour of its conception, it was fraught with even greater dangers to
the future development of the English constitution. The problem it
sought to solve was one of no transient or unimportant nature, since it
was nothing less than the devising of legal machinery to prevent the
king from abusing the powers entrusted to him. The barons sought the
best method of turning royal promises of reform into laws which
succeeding kings must obey. In attempting this, Magna Carta moved along
lines which were radically wrong; which, if not departed from in time,
would have rendered any enduring progress impossible. The statesmanship
which, while leaving one king on the throne, subjected him to the
dictation of “five-and-twenty over-kings” in regard to all vital
questions of the day, was crude and ill-advised. It is true that the
party of reform throughout the long reign of Henry III. clung to the
same erroneous solution, although under various modifications on points
of detail; but they met with no success. After half a century of unrest
a settlement seemed as far distant as before. If the same policy had
been persisted in during Edward’s reign the English constitution, as it
became known to after ages, would never have been evolved. The dangers
and defects of schemes like those of 1215 and of 1258 are most clearly
seen in contrast with the more tactful efforts of Edward I. towards a
true solution, along lines leading in due time to complete success.

The true policy for the barons was to use the king’s own administrative
machinery and the king’s own servants to control the king himself. The
principle was slowly established that the sovereign could perform no
single act of prerogative except through the agency of the proper
minister or group of ministers. Each function of government became
associated with a specific office or organ of the royal household. The
rights of the official head of each department became stereotyped, and
his position obtained full legal acknowledgment, while very gradually
the doctrine of ministerial responsibility grew up, compelling each
officer of the Crown to obey not only the law of the land, but also the
_Commune Concilium_, fast changing into the modern Parliament. The
expedients of an earlier age disappeared as no longer required, when the
king’s good faith was secured by means of the friendly control of his
own ministers, not by the violent compulsion of his opponents. The
credit of starting the constitution on its right line of development is
in great measure due to Edward I.[1081]

-----

Footnote 1081:

Cf. _supra_, pp. 189-193 for a sketch of Edward’s policy.

-----

IV. _Dr. Gneist’s Criticism._ Dangerous and even absurd as this scheme
appears, it has found its apologist. Dr. Gneist accuses English
historians of making “very inappropriate comparisons” between this
baronial committee and the continental expedients of the same period.
While in most countries of Europe, each baron arrogated the right of
private war against his sovereign in circumstances to be determined by
his own individual judgment, Magna Carta conferred rights of rebellion
only on the barons “in their collective capacity,” and “as represented
by definite organs.”[1082] The substitution of collective repressive
measures for the right of private feud undoubtedly marks an advance; but
rebellion, even when organized, cannot be considered a satisfactory
constitutional expedient. Dr. Gneist is scarcely more convincing when he
argues that English historians and jurists have condemned too
unreservedly a scheme which is “so far in harmony with the spirit of the
feudal state of the Middle Ages as it was based upon a mutual relation
of feudal protection and fealty, that is, upon compact.” “The concession
by agreement,” he continues, “of the rights of distress was altogether
so entirely consonant with the legal conceptions of the Middle Ages that
in this way the committee of resistance loses a portion of its
apparently revolutionary character.”[1083] That the Middle Ages approved
of revolution does not, however, change it into constitutional action;
while the fact that it was founded upon the feudal conception of mutual
contract may explain it, but does not render it more worthy of
admiration. The whole scheme was, of course, thoroughly in accord with
the public opinion of the age, but that merely shows how wide is the
gulf which separates medieval conceptions from modern ones, and how
absurd it is to regard the Great Charter, as is sometimes done, as
anticipating the fundamental principles of the English constitution of
to-day.

-----

Footnote 1082:

Gneist, _English Const._, 251.

Footnote 1083:

_Ibid._

-----

In spite of all apologies, the crudeness of the only sanction provided
by Magna Carta for its own enforcement prevents it from ranking as a
great monument of constructive statesmanship.

V. _Failure of the Scheme._ Almost before John’s Magna Carta, in its
completed form, had been engrossed and sealed, the futility of its
sanction was recognized. Each side grew suspicious and demanded new
“sanctions,” new guarantees not contained in the Charter.

(1) _Quis custodiet ipsos custodes?_ Magna Carta, assuming apparently
that perfect trust could be placed in the rectitude and wisdom of the
Revolutionary Committee, provided no machinery for controlling them, no
guarantee that they would observe the Charter without misinterpreting
its provisions to suit their own selfish interests. The futility of this
complacency was soon manifest. One tyrant had brought distress on the
whole nation; and now he was to be superseded by five-and-twenty. Who
was to restrain the new tyrants? A second committee was nominated partly
to assist and partly to control the twenty-five. Matthew Paris[1084]
describes it as composed of thirty-eight “_Obsecutores et
Observatores_,” including the Earl Marshal, Hubert de Burgh, the earls
of Arundel and Warenne, and other prominent members of the moderate
party, not unfriendly to the king. Dr. Stubbs dismisses their relations
to the executors with the remark that they “swore to obey the orders of
the twenty-five.”[1085] Miss Norgate takes what seems to be a better
view, in emphasizing as the chief reason for their appointment the duty
of compelling “both the king and the twenty-five to deal justly with one
another.”[1086] The thirty-eight were required to constrain the
twenty-five, as the twenty-five constrained the king.[1087]

-----

Footnote 1084:

_Chron. Maj._, II. 605-6.

Footnote 1085:

_Const. Hist._, I. 583, n.

Footnote 1086:

_John Lackland_, 236.

Footnote 1087:

One version of the narrative of Matthew Paris is much fuller than the
other. The first MS. merely says, “_Isti omnes juraverunt quod
obsequerentur mandato viginti quinque baronum._” The second gives the
important addition, “_Omnes isti juraverunt cogere si opus esset
ipsos_ xxv. _barones ut rectificarent regem_. _Et etiam cogere ipsum
si mutato animo forte recalcitraret_,” II. 606, n.

-----

(2) _Suspicions of the barons’ good faith._ Whether the appointment of
the committee of thirty-eight was due partly to John’s influence or was
entirely the result of mutual jealousies in the ranks of those opposed
to him, there is absolute evidence that the king was distrustful of the
barons’ good faith, and desired on his part some “sanction” that they
would not again renounce that allegiance, the renewal of which was the
_quid pro quo_ for which he had granted the Charter. Apparently the
leading barons did renew their oath of fealty and homage on 19th June at
Runnymede; but refused to grant a formal Charter to that effect,
although they had promised to give any security John might require,
except hostages or castles. The prelates when appealed to sided with the
king; they executed a formal declaration or protest, recording the
barons’ promise and subsequent refusal to give effect to it. There is no
reason to doubt the testimony of the prelates; they had been present at
all the negotiations, and it was by their mediation that the terms of
peace embodied in Magna Carta had been settled. This was not the only
matter on which the bishops found it necessary to intervene on the
king’s behalf. The new baronial executive and the twelve knights who
acted as their agents in each county, pushed to unfair lengths the
authority to reform abuses conferred on them in terms of Magna Carta. In
particular, they proceeded virtually to abolish the royal forests
altogether by abrogating as evil customs the procedure on which this
branch of the Crown’s prerogative rested. The prelates placed on record
a formal protest on this head also.[1088]

-----

Footnote 1088:

The texts of both Protests are given in the Appendix.

-----

(3) _Suspicions of John’s good faith._ If neither the king nor the
nation at large considered that the Great Charter contained sufficient
safeguards of their interests against the Committee of Executors, the
barons themselves soon came to the conclusion that the Committee, in
spite of all its powers, formed an inadequate sanction against John.
Accordingly they demanded further “security.” The city of London was
placed in their hands, and the Tower of London in the neutral custody of
the primate, as pledges of John’s good faith, until 15th August or
longer if need were. Those terms were reduced to writing in a document
entitled “_Conventio facta inter Regem Anglie et barones ejusdem
regni_,” which thus supplied a new sanction, or “form of security,”
supplementing, if not superseding, that contained in chapter 61 of Magna
Carta.[1089]

-----

Footnote 1089:

See _supra_, 51–2. The text is given in Appendix. Thirteen of the
twenty-five executors are mentioned by name as agreeing to this new
treaty on behalf of themselves and other earls, barons and freeholders
unnamed. Cf. R. Wendover, III. 319 (“_et turrem Londonarum_”). A third
sanction, or form of security, appears in the garbled versions of the
Charter given by R. Wendover (III. 317) and M. Paris (II. 603): the
constables of the four royal castles of Northampton, Kenilworth,
Nottingham and Scarborough, were to swear to hold these strongholds
under orders of the twenty-five executors. See M. Paris (_Ibid._).
This clause has not been found in any known copy of any issue of Magna
Carta. Cf. Mr. H. R. Luard’s _preface_ to the second volume of Matthew
Paris, pp. xxxiii. to xxxvi., where he discusses the peculiarities of
the versions given by Wendover and Paris.

-----

(4) _Precautions against papal intervention._ The Articles of the barons
afford undoubted evidence of its framers’ suspicions that John would
apply to Rome for absolution from his bargain. They showed considerable
shrewdness in demanding that the English prelates and the papal legate
should become the king’s sureties that he would not procure from the
Pope anything to invalidate the Charter or diminish its efficacy. If
Pandulf, as the Pope’s accredited agent, had actually put his seal to
such a document, he would have seriously embarrassed his august master
in supporting John in a course of repudiation.

Two important alterations in the completed Charter were effected,
however, whether at John’s instance, or at that of Pandulf, or of the
English prelates, is matter of conjecture. No mention was made of
Innocent by name, the clause being made quite general in its terms. John
merely promised to procure a dispensation “from no one,” while the
question of sureties was quietly ignored. The reason for the omission
readily suggests itself; Pandulf would naturally object to commit his
principal or himself to any pledge of the kind. The Pope preserved
perfect freedom, and the use which he made of this is matter of common
knowledge.[1090]

-----

Footnote 1090:

Cf. _supra_, p. 55.

-----

CHAPTER SIXTY-TWO.

Et omnes malas voluntates, indignaciones, et rancores ortos inter nos et
homines nostros, clericos et laicos, a tempore discordie, plene omnibus
remisimus et condonavimus. Preterea omnes transgressiones factas
occasione ejusdem discordie, a Pascha anno regni nostri sextodecimo
usque ad pacem reformatam, plene remisimus omnibus, clericis et laicis,
et quantum ad nos pertinet plene condonavimus. Et insuper fecimus eis
fieri litteras testimoniales patentes domini Stephani Cantuariensis
archiepiscopi, domini Henrici Dublinensis archiepiscopi, et episcoporum
predictorum, et magistri Pandulfi, super securitate ista et
concessionibus prefatis.

And all the ill-will, hatreds, and bitterness that have arisen between
us and our men, clergy and lay, from the date of the quarrel, we have
completely remitted and pardoned to everyone. Moreover, all trespasses
occasioned by the said quarrel, from Easter in the sixteenth year of
our reign till the restoration of peace, we have fully remitted to
all, both clergy and laymen, and completely forgiven, as far as
pertains to us. And, on this head, we have caused to be made out to
them letters patent of Stephen, archbishop of Canterbury, Henry,
archbishop of Dublin, the bishops aforesaid, and master Pandulf, as
evidences of this clause of security and of the foresaid concessions.

The clauses which follow the _forma securitatis_ are entirely of a
formal nature, adding nothing to the substance of Magna Carta. The
present chapter, after making a well-meant declaration that bygones
should be bygones, and that perfect peace and goodwill should everywhere
prevail—a pious aspiration doomed to speedy disillusion—proceeds to
authorize the prelates to issue under their seals certified copies of
the terms of the Great Charter. Such letters were actually issued, and
their terms are preserved in the Red Book of the Exchequer.[1091]

-----

Footnote 1091:

See _folio_ 234. The text which is reproduced by Bémont, _Chartres_,
p. 35, runs as follows: "Omnibus Christi fidelibus ad quos presens
scriptum pervenerit, Stephanus Dei gratia Cantuariensis
archiepiscopus, tocius Anglie primas et sancte romane ecclesie
cardinalis, Henricus, eadem gratia Dublinensis archiepiscopus,
Willelmus Londoniensis, Petrus Wintoniensis, Joscelinus, Bathoniensis
et Glastoniensis, Hugo Lincolniensis, Walterus Wigorniensis, Willelmus
Coventriensis et Benedictus Roffensis, divina miseracione episcopi, et
magister Pandulfus domini pape subdiaconus et familiaris, salutem in
Domino. Sciatis nos inspexisse cartam quam dominus noster Johannes
illustris rex Anglie fecit comitibus, baronibus et liberis hominibus
suis Anglie de libertate sancte ecclesie et libertatibus et liberis
consuetudinibus suis eisdem ab eo concessis sub hac forma....

. . . . [Here follows the text of John’s Magna Carta]. . . .

Et ne huic forme predicte aliquid possit addi vel ab eadem aliquid
possit subtrahi vel minui, huic scripto sigilla nostra apposuimus."

-----

CHAPTER SIXTY-THREE.

Quare volumus et firmiter precipimus quod Anglicana ecclesia libera sit
et quod homines in regno nostro habeant et teneant omnes prefatas
libertates, jura, et concessiones, bene et in pace, libere et quiete,
plene et integre sibi et heredibus suis, de nobis et heredibus nostris,
in omnibus rebus et locis, in perpetuum, sicut predictum est. Juratum
est autem tam ex parte nostra quam ex parte baronum, quod hec omnia
supradicta bona fide et sine malo ingenio observabuntur. Testibus
supradictis et multis aliis. Data per manum nostram in prato quod
vocatur Ronimede, inter Windlesoram et Stanes, quinto decimo die Junii,
anno regni nostri decimo septimo.

Wherefore it is our will, and we firmly enjoin, that the English
Church be free, and that the men in our kingdom have and hold all the
aforesaid liberties, rights, and concessions, well and peaceably,
freely and quietly, fully and wholly, for themselves and their heirs,
of us and our heirs, in all respects and in all places for ever, as is
aforesaid. An oath, moreover, has been taken, as well on our part as
on the part of the barons, that all these conditions aforesaid shall
be kept in good faith and without evil intent. Given under our
hand—the above-named and many others being witnesses—in the meadow
which is called Runnymede, between Windsor and Staines, on the
fifteenth day of June, in the seventeenth year of our reign.

This last of the sixty-three chapters into which Magna Carta has been
divided for purposes of convenience, not by its framers, but by modern
commentators, contains little that calls for special comment. Beginning
with a repetition of the declarations already made in chapter one that
the English church should be free (omitting, however, any second
reference to canonical election) and that _homines in regno nostro_
should have and hold all of the aforesaid liberties, rights and
concessions, it went on to record the fact that both parties had taken
oath to observe its contents in good faith.[1092] The magnates named in
the preamble were thereafter, along with many others who were not named,
referred to collectively as witnesses. The Charter concludes with the
declaration that it has been “given by our hand,” the place and date
being specified, so as to conform to the formalities required in legal
documents. The actual giving by John’s hand was effected by the impress
of his great seal.[1093]

-----

Footnote 1092:

Cf. _supra_, 125.

Footnote 1093:

There are no signatures to the document. The frequent references to
“the signing of the Great Charter” (_e.g._ Medley, _Const. Hist._,
127) are thus inaccurate, if “signing” is taken in its modern sense of
“subscribing,” but may perhaps be justified by a reference to _signum_
in its original meaning of “a seal.” To imprint a seal was, in a
sense, “to sign.” That Magna Carta, in spite of its mention of its own
date as 15th June, was actually sealed on the 19th has already been
asserted, _supra_, 48–49. To the proofs there adduced should be added
the testimony of the _Annals of Dunstable_, III. 43, which report that
peace was made between king and barons at Runnymede “_die Gervasii et
Protasii_.”

-----

APPENDIX.
DOCUMENTS RELATIVE TO, OR ILLUSTRATIVE
OF JOHN’S MAGNA CARTA.

I. THE CHARTER OF LIBERTIES OF HENRY I.[1094]

-----

Footnote 1094:

The text is founded on that of the _Statutes of the Realm_, I. 1; but
has been also collated with the admirable text prepared by M. Bémont,
_Chartes_, 1–6, whose emendations have been freely used not only for
this Charter, but for all those which follow in this Appendix. M.
Bémont gives an exhaustive account of the copies of the lost original
of Henry’s charter.

-----

(1100.)

Anno incarnationis dominice M.CI. Henricus, filius Willelmi regis, post
obitum fratris sui Willelmi Dei gratia rex Anglorum, omnibus fidelibus
salutem.

1. Sciatis me Dei misericordia et communi consilio baronum totius regni
Anglie, ejusdem regem coronatum esse. Et, quia regnum oppressum erat
injustis exactionibus, ego, Dei respectu et amore quem erga vos habeo,
sanctam Dei ecclesiam inprimis liberam facio, ita quod nec vendam, nec
ad firmam ponam, nec mortuo archiepiscopo, sive episcopo, sive abbate,
aliquid accipiam de dominico ecclesie vel de hominibus ejus, donec
successor in eam ingrediatur. Et omnes malas consuetudines, quibus
regnum Anglie injuste opprimebatur, inde aufero; quas malas
consuetudines ex parte hic pono:

2. Si quis baronum, comitum meorum, sive aliorum qui de me tenent,
mortuus fuerit, heres suus non redimet terram suam sicut faciebat
tempore fratris mei, sed justa et legitima relevatione relevabit eam.
Similiter et homines baronum meorum justa et legitima relevatione
relevabunt terras suas de dominis suis.

3. Et si quis baronum vel aliorum hominum meorum filiam suam nuptum
tradere voluerit, sive sororem, sive neptim, sive cognatam, mecum inde
loquatur; sed neque ego aliquid de suo pro hac licentia accipiam, neque
defendam ei quin eam det, excepto si eam vellet jungere inimico meo. Et
si, mortuo barone sive alio homine meo, filia heres remanserit, illam
dabo consilio baronum meorum cum terra sua. Et si, mortuo viro, uxor
ejus remanserit et sine liberis fuerit, dotem suam et maritationem
habebit; et eam non dabo marito, nisi secundum velle suum.

4. Si vero uxor cum liberis remanserit, dotem quidem et maritationem
habebit dum corpus suum legitime servaverit, et eam non dabo, nisi
secundum velle suum; et terre et liberorum custos erit sive uxor, sive
alius propinquarius qui justius esse debeat. Et precipio quod barones
mei similiter se contineant erga filios vel filias et uxores hominum
suorum.

5. Monetagium commune, quod capiebatur per civitates et comitatus, quod
non fuit tempore regis Edwardi, hoc ne amodo sit omnino defendo. Si quis
captus fuerit, sive monetarius, sive alius, cum falsa moneta, justicia
recta inde fiat.

6. Omnia placita et omnia debita que fratri meo debebantur condono,
exceptis rectis firmis meis, et exceptis illis que pacta erant pro
aliorum hereditatibus, vel pro eis rebus que justius aliis contingebant.
Et si quis pro hereditate sua aliquid pepigerat, illud condono, et omnes
relevationes que pro rectis hereditatibus pacte fuerant.

7. Et si quis baronum vel hominum meorum infirmabitur, sicut ipse dabit
vel dare disponet pecuniam suam, ita datam esse concedo; quod si ipse,
preventus armis vel infirmitate, pecuniam suam non dederit val dare
disposuerit, uxor sua, sive liberi, aut parentes, et legitimi homines
ejus, eam pro anima ejus dividant, sicut eis melius visum fuerit.

8. Si quis baronum vel hominum meorum forisfecerit, non dabit vadium in
misericordia pecunie, sicut faciebat tempore patris mei vel fratris mei;
sed, secundum modum forisfacti, ita emendabit sicut emendasset retro a
tempore patris mei, in tempore aliorum antecessorum meorum. Quod si
perfidie vel sceleris convictus fuerit, sicut justum fuerit sic emendet.

9. Murdra etiam, retro ab illa die qua in regem coronatus fui, omnia
condono; et ea que amodo facta fuerint, juste emendentur secundum lagam
regis Edwardi.

10. Forestas, omni consensu baronum meorum, in manu mea retinui sicut
pater meus eas habuit.

11. Militibus qui per loricas terras suas defendunt, terras dominicarum
carrucarum suarum quietas ab omnibus gildis et omni opere proprio dono
meo concedo, ut, sicut tam magno allevamine alleviati sunt, ita se equis
et armis bene instruant ad servitium meum et ad defensionem regni mei.

12. Pacem firmam in toto regno meo pono et teneri amodo precipio.

13. Lagam Edwardi regis vobis reddo cum illis emendationibus quibus
pater meus eam emendavit consilio baronum suorum.

14. Si quis aliquid de rebus meis vel de rebus alicujus post obitum
Willelmi regis fratris mei cepit, totum cito sine emendatione reddatur;
et si quis inde aliquid retinuerit, ille super quem inventum fuerit
michi graviter emendabit.

Testibus Mauricio Lundonie episcopo, et Gundulfo episcopo, et Willelmo
electo episcopo, et Henrico comite, et Simone comite, et Waltero
Giffardo, et Rodberto de Monfort, et Rogero Bigoto, et Henrico de Portu,
apud Londoniam, quando fui coronatus.

II. THE SECOND OR OXFORD CHARTER OF STEPHEN.[1095]
(1136.)

-----

Footnote 1095:

The text is founded on that of the _Statutes of the Realm_, I. 3. Cf.
Bémont, _Chartes_, 8–10, who discusses the various editions. Mr. R.
Lane Poole has noted the variants of an original of the Charter
preserved in the muniment room of Salisbury Cathedral; see _Report on
Manuscripts in Various Collections_, I. 384-5 (Historical Manuscripts
Commission, 1901). Two of these variants have been here adopted (a)
“_regem Anglie_” for “_regem Anglorum_” and (b) “_postmodum_” added
after “_pontifice_.”

-----

Ego Stephanus Dei gratia, assensu cleri et populi in regem Anglie
electus, et a Willelmo Cantuariensi archiepiscopo et sancte Romane
ecclesie legato consecratus, et ab Innocentio sancte romane sedis
pontifice postmodum confirmatus, respectu et amore Dei sanctam ecclesiam
liberam esse concedo, et debitam reverentiam illi confirmo. Nichil me in
ecclesia vel rebus ecclesiasticis simoniace acturum vel permissurum esse
promitto. Ecclesiasticarum personarum et omnium clericorum et rerum
eorum justiciam et potestatem et distributionem honorum ecclesiasticorum
in manu episcoporum esse perhibeo et confirmo. Dignitates ecclesiarum
privilegiis earum confirmatas et consuetudines earum antiquo tenore
habitas inviolate manere statuo et concedo. Omnes ecclesiarum
possessiones et tenuras, quas die illa habuerunt qua Willelmus rex avus
meus fuit vivus et mortuus, sine omni calumpniantium reclamatione, eis
liberas et absolutas esse concedo. Si quid vero de habitis vel possessis
ante mortem ejusdem regis quibus modo careat, ecclesia deinceps
repetierit, indulgentie et dispensationi mee vel restituendum vel
discutiendum reservo. Quecunque vero post mortem ipsius regis
liberalitate regum vel largitione principum, oblatione vel comparatione,
vel qualibet transmutatione fidelium eis collata sunt, confirmo. Pacem
et justiciam me in omnibus facturum et pro posse meo conservaturum eis
promitto.

Forestas quas Willelmus avus meus et Willelmus avunculus meus
instituerunt et habuerunt mihi reservo. Ceteras omnes quas rex Henricus
superaddidit, ecclesiis et regno quietas reddo et concedo.

Si quis episcopus vel abbas vel alia ecclesiastica persona ante mortem
suam rationabiliter sua distribuerit vel distribuenda statuerit, firmum
manere concedo. Si vero morte preoccupatus fuerit, pro salute anime
ejus, ecclesie consilio, eadem fiat distributio. Dum vero sedes propriis
pastoribus vacue fuerint, ipsas et earum possessiones omnes in manu et
custodia clericorum vel proborum hominum ejusdem ecclesie committam,
donec pastor canonice substituatur.

Omnes exactiones et injusticias et mescheningas sive per vicecomites vel
per alios quoslibet male inductas funditus exstirpo. Bonas leges et
antiquas et justas consuetudines in murdris et placitis et aliis causis
observabo et observari precipio et constituo. Hec omnia concedo et
confirmo, salva regia et justa dignitate mea.

Testibus Willelmo Cantuariensi archiepiscopo, et Hugone Rothomagensi
archiepiscopo, et Henrico Wintoniensi episcopo, et Rogero Saresberiensi
episcopo, et Alexandro Lincolniensi episcopo, et Nigello Eliensi
episcopo, et Evrardo Norwicensi episcopo, et Simone Wigorniensi
episcopo, et Bernardo episcopo de S. Davide, et Audoeno Ebroicensi
episcopo, et Ricardo Abrincensi episcopo, et Roberto Herefordiensi
episcopo, et Johanne Rovecestriensi episcopo, et Athelulfo Carlolensi
episcopo, et Rogero cancellario, et Henrico nepote Regis, et Roberto
comite Gloecestrie, et Willelmo comite de Warenna, et Rannulfo comite
Cestrie, et Roberto comite de Warewic., et Roberto de Ver., et Milone de
Glocestria, et Brientio filio Comitis, et Roberto de Oilly conestabulis,
et Willelmo Martello, et Hugone Bigot, et Hunfredo de Buhun, et Simone
de Belcamp dapiferis, et Willelmo de Albiniaco, et Eudone Martello
pincernis, et Roberto de Ferreriis, et Willelmo Pevrello de Notingeham,
et Simone de Saintliz, et Willelmo de Albamarla, et Pagano filio
Johannis, et Hamone de Sancto Claro, et liberto de Laceio. Apud
Oxeneford. Anno ab incarnatione Domini M.C. XXXVI., set regni mei primo.

III. CHARTER OF HENRY II.[1096]
(CIRCA 1154.)

Henricus Dei gracia rex anglie, dux Normannie et Aquitanie, et comes
Andegavie, omnibus comitibus, baronibus et fidelibus suis Francis et
Anglicis, salutem. Sciatis me, ad honorem Dei et sancte Ecclesie, et pro
communi emendacione tocius regni mei, concessisse et reddidisse et
presenti carta mea confirmasse Deo et sancte ecclesie et omnibus
comitibus et baronibus et omnibus hominibus meis omnes concessiones et
donaciones et libertates et liberas consuetudines, quas rex Henricus
avus meus eis dedit et concessit. Similiter eciam omnes malas
consuetudines, quas ipse delevit et remisit, ego remitto et deleri
concedo pro me et heredibus meis. Quare volo et firmiter precipio quod
sancta ecclesia et omnes comites et barones et omnes mei homines omnes
illas consuetudines et donaciones et libertates et liberas consuetudines
habeant et teneant libere et quiete, bene et in pace et integre, de me
et heredibus meis, sibi et heredibus suis, adeo libere et quiete et
plenarie in omnibus, sicut rex Henricus avus meus eis dedit et
concessit, et carta sua confirmavit. Teste Ricardo de Luci apud
Westmonasterium.

-----

Footnote 1096:

The text is taken from that given in _Statutes of the Realm_, I. 4,
which is founded on a copy of the original preserved in the British
Museum (Cotton, Claudius D. II., _folio_ 107). Cf. Bémont, _Chartes_,
12–14.

-----

IV. THE SO-CALLED "UNKNOWN CHARTER OF
LIBERTIES" OF JOHN[1097]

-----

Footnote 1097:

See _supra_, pp. 202-5 and Index. The text is founded upon that
published by Mr. J. H. Round in the _English Historical Review_, VIII.
288, but effect has been given to most of the emendations suggested by
Mr. Hubert Hall and Mr. G. W. Prothero. Cf. _Ibid._, IX. 117 and 326.
The copy in the French Archives follows, on the same parchment, a copy
of the Charter of Liberties of Henry I. from which it is separated by
the following words (indicating the nature of both documents, the one
that had gone before and the other that was to follow): “Hec est Carta
Regis Henrici per quam barones querunt libertates et hec consequentia
concedit Rex Johannes.” Then follow twelve clauses which are here
numbered for convenience of reference, although no numbers appear in
the copy.

-----

(WHICH MAY, PERHAPS, BE IDENTIFIED WITH THE
SCHEDULE OF 27TH APRIL, 1215).

1. Concedit Rex Johannes quod non capiet hominem absque judicio, nec
aliquid accipiet pro justitia, nec injustitiam faciet.

2. Et si contingat quod meus baro vel homo meus moriatur et haeres suus
sit in aetate, terram suam debeo ei reddere per rectum releveium absque
magis capiendi.

3. Et si ita sit quod haeres sit infra aetatem, debeo iiij^{or}
militibus de legalioribus feodi terram bajulare in custodia, et illi cum
meo famulo debent mihi reddere exitus terrae sine venditione nemorum et
sine redemptione hominum et sine destructione parci et vivarii; et tunc
quando ille haeres erit in aetate terram ei reddam quietam.

4. Si foemina sit haeres terrae, debeo eam maritare, consilio generis
sui, ita non sit disparagiata. Et si una vice eam dedero, amplius eam
dare non possum, sed se maritabit ad libitum suum, sed non inimicis
meis.

5. Si contingat quod baro aut homo meus moriatur, concedo ut pecunia sua
dividatur sicut ipse diviserit; et si praeoccupatus fuerit aut armis aut
infirmitate improvisa, uxor ejus, aut liberi, aut parentes et amici
propinquiores pro ejus anima dividant.

6. Et uxor ejus non abibit de hospitio infra XL. dies et donec dotem
suam decenter habuerit, et maritagium habebit.

7. Adhuc hominibus meis concedo ne eant in exercitu extra Angliam nisi
in Normanniam et in Britanniam et hoc decenter; quod si aliquis debet
inde servitium decem militum, consilio baronum meorum alleviabitur.

8. Et si scutagium evenerit in terra, una marca argenti capietur de
feodi militis; et si gravamen exercitus contigerit, amplius caperetur
consilio baronum regni.

9. Adhuc concedo ut omnes forestas quas pater meus et frater meus et ego
afforestaverimus, deafforesto.

10. Adhuc concedo ut milites qui in antiquis forestis meis suum nemus
habent, habeant nemus amodo ad herbergagia sua et ad ardendum; et
habeant foresterium suum; et ego tantum modo unum qui servet pecudes
meas.

11. Et si aliquis hominum meorum moriatur qui Judaeis debeat, debitum
non usurabit quamdiu haeres ejus sit infra aetatem.

12. Et concedo ne homo perdat pro pecude vitam neque membra.

V. THE ARTICLES OF THE BARONS.[1098]
(1215.)

-----

Footnote 1098:

The text is taken from that of the _Statutes of the Realm_, I. 7-8,
which is founded on the original in the British Museum. See _supra_,
200–202. Cf. Bémont, _Chartes_, 15–23.

-----

_Ista sunt Capitula que Barones petunt et dominus Rex concedit._

1. Post decessum antecessorum heredes plene etatis habebunt hereditatem
suam per antiquum relevium exprimendum in carta.

2. Heredes qui infra etatem sunt et fuerint in custodia, cum ad etatem
pervenerint, habebunt hereditatem suam sine relevio et fine.

3. Custos terre heredis capiet rationabiles exitus, consuetudines, et
servitia, sine destructione et vasto hominum et rerum suarum, et si
custos terre fecerit destructionem et vastum, amittat custodiam; et
custos sustentabit domos, parcos, vivaria, stagna, molendina et cetera
ad terram illam pertinentia, de exitibus terre ejusdem; et ut heredes
ita maritentur ne disparagentur et per consilium propinquorum de
consanguinitate sua.

4. Ne vidua det aliquid pro dote sua, vel maritagio, post decessum
mariti sui, sed maneat in domo sua per .xl. dies post mortem ipsius, et
infra terminum illum assignetur ei dos; et maritagium statim habeat et
hereditatem suam.

5. Rex vel ballivus non saisiet terram aliquam pro debito dum catalla
debitoris sufficiunt; nec plegii debitoris distringantur, dum capitalis
debitor sufficit ad solutionem; si vero capitalis debitor defecerit in
solutione, si plegii voluerint, habeant terras debitoris, donec debitum
illud persolvatur plene, nisi capitalis debitor monstrare poterit se
esse inde quietum erga plegios.

6. Rex non concedet alicui baroni quod capiat auxilium de liberis
hominibus suis, nisi ad corpus suum redimendum, et ad faciendum
primogenitum filium suum militem, et ad primogenitam filiam suam semel
maritandam, et hoc faciet per rationabile auxilium.

7. Ne aliquis majus servitium faciat de feodo militis quam inde debetur.

8. Ut communia placita non sequantur curiam domini regis, sed
assignentur in aliquo certo loco; et ut recognitiones capiantur in
eisdem comitatibus, in hunc modum: ut rex mittat duos justiciaros per
.iiii^{or}. vices in anno, qui cum .iiii^{or}. militibus ejusdem
comitatus electis per comitatum, capiant assisas de nova dissaisina,
morte antecessoris, et ultima presentatione, nec aliquis ob hoc sit
summonitus nisi juratores et due partes.

9. Ut liber homo amercietur pro parvo delicto secundum modum delicti,
et, pro magno delicto, secundum magnitudinem, delicti, salvo
continemento suo; villanus etiam eodem modo amercietur, salvo waynagio
suo; et mercator eodem modo, salva marcandisa, per sacramentum proborum
hominum de visneto.

10. Ut clericus amercietur de laico feodo suo secundum modum aliorum
predictorum, et non secundum beneficium ecclesiasticum.

11. Ne aliqua villa amercietur pro pontibus faciendis ad riparias, nisi
ubi de jure antiquitus esse solebant.

12. Ut mensura vini, bladi, et latitudines pannorum et rerum aliarum,
emendetur; et ita de ponderibus.

13. Ut assise de nova dissaisina et de morte antecessoris abbrevientur;
et similiter de aliis assisis.

14. Ut nullus vicecomes intromittat se de placitis ad coronam
pertinentibus sine coronatoribus; et ut comitatus et hundredi sint ad
antiquas firmas absque nullo incremento, exceptis dominicis maneriis
regis.

15. Si aliquis tenens de rege moriatur, licebit vicecomiti vel alii
ballivo regis seisire et imbreviare catallum ipsius per visum legalium
hominum, ita tamen quod nichil inde amoveatur, donec plenius sciatur si
debeat aliquod liquidum debitum domino regi, et tunc debitum regis
persolvatur; residuum vero relinquatur executoribus ad faciendum
testamentum defuncti; et si nichil regi debetur, omnia catalla cedant
defuncto.

16. Si aliquis liber homo intestatus decesserit, bona sua per manum
proximorum parentum suorum et amicorum et per visum ecclesie
distribuantur.

17. Ne vidue distringantur ad se maritandum, dum voluerint sine marito
vivere, ita tamen quod securitatem facient quod non maritabunt se sine
assensu regis, si de rege teneant, vel dominorum suorum de quibus
tenent.

18. Ne constabularius vel alius ballivus capiat blada vel alia catalla,
nisi statim denarios inde reddat, nisi respectum habere possit de
voluntate venditoris.

19. Ne constabularius possit distringere aliquem militem ad dandum
denarios pro custodia castri, si voluerit facere custodiam illam in
propria persona vel per alium probum hominem, si ipse eam facere non
possit per rationabilem causam; et si rex eum duxerit in exercitum, sit
quietus de custodia secundum quantitatem temporis.

20. Ne vicecomes, vel ballivus regis, vel aliquis alius, capiat equos
vel carettas alicujus liberi hominis pro cariagio faciendo, nisi ex
voluntate ipsius.

21. Ne rex vel ballivus suus capiat alienum boscum ad castra vel ad alia
agenda sua, nisi per voluntatem ipsius cujus boscus ille fuerit.

22. Ne rex teneat terram eorum qui fuerint convicti de felonia, nisi per
unum annum et unum diem, sed tunc reddatur domino feodi.

23. Ut omnes kidelli de cetero penitus deponantur de Tamisia et Medeweye
et per totam Angliam.

24. Ne breve quod vocatur “Precipe” de cetero fiat alicui de aliquo
tenemento unde liber homo amittat curiam suam.

25. Si quis fuerit disseisitus vel prolongatus per regem sine juditio de
terris, libertatibus, et jure suo, statim ei restituatur; et si
contentio super hoc orta fuerit, tunc inde disponatur per juditium .xxv.
baronum, et ut illi qui fuerint dissaisiti per patrem vel fratrem regis,
rectum habeant sine dilatione per juditium parium suorum in curia regis;
et si rex debeat habere terminum aliorum cruce signatorum, tunc
archiepiscopus et episcopi faciant inde juditium ad certum diem,
appellatione remota.

26. Ne aliquid detur pro brevi inquisitionis de vita vel membris, sed
libere concedatur sine pretio et non negetur.

27. Si aliquis tenet de rege per feodi firmam, per sokagium, vel per
burgagium, et de alio per servitium militis, dominus rex non habebit
custodiam militum de feodo alterius, occasione burgagii vel sokagii, nec
debet habere custodiam burgagii, sokagii, vel feodi firme; et quod liber
homo non amittat militiam suam occasione parvarum sergantisarum, sicuti
de illis qui tenent aliquod tenementum reddendo inde cuttellos vel
sagittas vel hujusmodi.

28. Ne aliquis ballivus possit ponere aliquem ad legem simplici loquela
sua sine testibus fidelibus.

29. Ne corpus liberi hominis capiatur, nec imprisonetur, nec
dissaisietur, nec utlagetur, nec exuletur, nec aliquo modo destruatur,
nec rex eat vel mittat super eum vi, nisi per juditium parium suorum vel
per legem terre.

30. Ne jus vendatur vel differratur vel vetitum sit.

31. Quod mercatores habeant salvum ire et venire ad emendum vel
vendendum, sine omnibus malis toltis, per antiquas et rectas
consuetudines.

32. Ne scutagium vel auxilium ponatur in regno, nisi per commune
consilium regni, nisi ad corpus regis redimendum, et primogenitum filium
suum militem faciendum, et filiam suam primogenitam semel maritandam; et
ad hoc fiat rationabile auxilium. Simili modo fiat de taillagiis et
auxiliis de civitate Londonie, et de aliis civitatibus que inde habent
libertates, et ut civitas Londonie plene habeat antiquas libertates et
liberas consuetudines suas, tam per aquas, quam per terras.

33. Ut liceat unicuique exire de regno et redire, salva fide domini
regis, nisi tempore werre per aliquod breve tempus propter communem
utilitatem regni.

34. Si quis mutuo aliquid acceperit a Judeis plus vel minus, et moriatur
antequam debitum illud solvatur, debitum non usurabit quamdiu heres
fuerit infra etatem, de quocumque teneat; et si debitum illud inciderit
in manum regis, rex non capiet nisi catallum quod continetur in carta.

35. Si quis moriatur et debitum debeat Judeis, uxor ejus habeat dotem
suam; et si liberi remanserint, provideantur eis necessaria secundum
tenementum; et de residuo solvatur debitum salvo servitio dominorum;
simili modo fiat de aliis debitis; et ut custos terre reddat heredi, cum
ad plenam etatem pervenerit, terram suam instauratam secundum quod
rationabiliter poterit sustinere de exitibus terre ejusdem de carucis et
wainnagiis.

36. Si quis tenuerit de aliqua eskaeta, sicut de honore Walingeford,
Notingeham, Bononie, et Lankastrie, et de aliis eskaetis que sunt in
manu regis et sunt baronie, et obierit, heres ejus non dabit aliud
relevium, vel faciet regi aliud servitium quam faceret baroni; et ut rex
eodem modo eam teneat quo baro eam tenuit.

37. Ut fines qui facti sunt pro dotibus, maritagiis, hereditatibus, et
amerciamentis, injuste et contra legem terre, omnino condonentur; vel
fiat inde per juditium, .xxv. baronum, vel per juditium majoris partis
eorumdem, una cum archiepiscopo et aliis quos secum vocare voluerit ita
quod, si aliquis vel aliqui de .xxv. fuerint in simili querela,
amoveantur et alii loco illorum per residuos de .xxv. substituantur.

38. Quod obsides et carte reddantur, quae liberate fuerunt regi in
securitatem.

39. Ut illi qui fuerint extra forestam non veniant coram justiciariis de
foresta per communes summonitiones, nisi sint in placito vel plegii
fuerint; et ut prave consuetudines de forestis et de forestariis, et
warenniis, et vicecomitibus, et rivariis, emendentur per .xii. milites
de quolibet comitatu, qui debent eligi per probos homines ejusdem
comitatus.

40. Ut rex amoveat penitus de balliva parentes et totam sequelam Gerardi
de Atyes, quod de cetero balliam non habeant, scilicet Engelardum,
Andream, Petrum, et Gyonem de Cancellis, Gyonem de Cygony, Matheum de
Martiny, et fratres ejus; et Galfridum nepotem ejus et Philippum Mark.

41. Et ut rex amoveat alienigenas, milites, stipendiarios, balistarios,
et ruttarios, et servientes qui veniunt cum equis et armis ad nocumentum
regni.

42. Ut rex faciat justiciarios, constabularios, vicecomites, et
ballivos, de talibus qui sciant legem terre et eam bene velint
observare.

43. Ut barones qui fundaverunt abbatias, unde habent cartas regum vel
antiquam tenuram, habeant custodiam earum cum vacaverint.

44. Si rex Walenses dissaisierit vel elongaverit de terris vel
libertatibus, vel de rebus aliis in Anglia vel in Wallia, eis statim
sine placito reddantur; et si fuerint dissaisiti vel elongati de
tenementis suis Anglie per patrem vel fratrem regis sine juditio parium
suorum, rex eis sine dilatione justiciam exhibebit, eo modo quo exhibet
Anglicis justiciam de tenementis suis Anglie secundum legem Anglie, et
de tenementis Wallie secundum legem Wallie, et de tenementis Marchie
secundum legem Marchie; idem facient Walenses regi et suis.

45. Ut rex reddat filium Lewelini et } nisi aliter esse
preterea omnes obsides de Wallia, et } debeat per cartas
cartas que ei liberate fuerunt in } quas rex habet
securitatem pacis . . . } per juditium
46. Ut rex faciat regi Scottorum de } archiepiscopi et
obsidibus reddendis, et de libertatibus } aliorum quos
suis, et jure suo, secundum formam } secum vocare
quam facit baronibus Anglie . . . . } voluerit.

47. Et omnes foreste que sunt aforestate per regem tempore suo
deafforestentur, et ita fiat de ripariis que per ipsum regem sunt in
defenso.

48. Omnes autem istas consuetudines et libertates quas rex concessit
regno tenendas quantum ad se pertinet erga suos, omnes de regno tam
clerici quam laici observabunt quantum ad se pertinet erga suos.

[Here, there occurs a blank space in the original.]

49. Hec est forma securitatis ad observandum pacem et libertates inter
regem et regnum. Barones eligent .xxv. barones de regno quos voluerint,
qui debent pro totis viribus suis observare, tenere et facere observari,
pacem et libertates quas dominus rex eis concessit et carta sua
confirmavit; ita videlicet quod si rex, vel justiciarius, vel ballivi
regis, vel aliquis de ministris suis, in aliquo erga aliquem deliquerit,
vel aliquem articulorum pacis aut securitatis transgressus fuerit, et
delictum ostensum fuerit .iiii^{or}. baronibus de praedictis .xxv.
baronibus, illi .iiii^{or}. barones accedent ad dominum regem, vel ad
justiciarium suum, si rex fuerit extra regnum; proponentes ei excessum,
petent ut excessum illum sine dilatione faciat emendari; et si rex vel
justiciarius ejus illud non emendaverit, si rex fuerit extra regnum,
infra rationabile tempus determinandum in carta, predicti .iiii^{or}.
referent causam illam ad residuos de illis .xxv. baronibus, et illi
.xxv. cum communa totius terre distringent et gravabunt regem modis
omnibus quibus poterunt, scilicet per captionem castrorum, terrarum,
possessionum, et aliis modis quibus poterunt, donec fuerit emendatum
secundum arbitrium eorum, salva persona domini regis et regine et
liberorum suorum; et cum fuerit emendatum, intendant domino regi sicut
prius. Et quicumque voluerit de terra jurabit se ad predicta exequenda
pariturum mandatis predictorum .xxv. baronum, et gravaturum regem pro
posse suo cum ipsis; et rex pubblice et libere dabit licentiam jurandi
cuilibet qui jurare voluerit, et nulli umquam jurare prohibebit. Omnes
autem illos de terra qui sponte sua et per se noluerint jurare .xxv.
baronibus de distringendo et gravando regem cum eis, rex faciet jurare
eosdem de mandato suo sicut predictum est. Item si aliquis de predictis
.xxv. baronibus decesserit, vel a terra recesserit, vel aliquo modo alio
impeditus fuerit quominus ista predicta possint exequi, qui residui
fuerint de .xxv. eligent alium loco ipsius pro arbitrio suo, qui simili
modo erit juratus quo et ceteri. In omnibus autem que istis .xxv.
baronibus committuntur exequenda, si forte ipsi .xxv. presentes fuerint
et inter se super re aliqua discordaverint, vel aliqui ex eis vocati
nolint vel nequeant interesse, ratum habebitur et firmum quod major pars
ex eis providerit vel preceperit, ac si omnes .xxv. in hoc
consensissent; et predicti .xxv. jurabunt quod omnia antedicta fideliter
observabunt et pro toto posse suo facient observari. Preterea rex faciet
eos securos per cartas archiepiscopi et episcoporum et magistri
Pandulfi, quod nichil impetrabit a domino papa per quod aliqua istarum
conventionum revocetur vel minuatur, et, si aliquid tale impetraverit,
reputetur irritum et inane et numquam eo utatur.

VI. WRITS SUPPLEMENTARY OF JOHN’S GREAT CHARTER.

(1) _Writ to Stephen Harengod, dated 23rd June, 1215, announcing that
terms had been arranged_.[1099]

-----

Footnote 1099:

The text follows that of _New Rymer_, I. 133, but has been collated
with _Rot. Pat._, I. 143 (17 John m. 23) and two corrections made.
This writ is here given as a specimen of many despatched during the
week following the truce at Runnymede, intimating that peace had been
made, and instructing release of hostages, etc. This writ is referred
to _supra_ 48 n. and 49 n. where its date is discussed.

-----

Rex Stephano Harengod etc., Sciatis quod firma pax facta est per Dei
gratiam inter nos et barones nostros die Veneris proximo post festum
Sancte Trinitatis apud Runemed., prope Stanes; ita quod eorum homagia
eodem die ibidem cepimus. Unde vobis mandamus firmiter precipientes quod
sicut nos et honorem nostrum diligitis et pacem regni nostri, ne
ulterius turbetur, quod nullum malum de cetero faciatis baronibus
nostris vel aliis, vel fieri permittatis, occasione discordie prius orte
inter nos et eos. Mandamus etiam vobis quod de finibus et tenseriis
nobis factis occasione illius discordie, si quid superest, reddendum,
nichil capiatis. Et si quid post illum diem Veneris cepistis, illud
statim reddatis. Et corpora prisonum et obsidum captorum et detentorum
occasione hujus guerre, vel finium vel tenseriarum predictarum, sine
dilatione deliberetis. Hec omnia predicta, sicut corpus vestrum
diligitis, faciatis. Et in hujus etc., nobis mittimus. Teste meipso apud
Runemed., xxiij. die Junii anno regni nostri xvij.

(2) _Writ to Hugh de Bova, dated 23rd June, 1215, ordering disbandment
of mercenaries._[1100]

-----

Footnote 1100:

See _supra_, p. 522. The text is given in _New Rymer_, I. 134, and in
_Rot. Pat._, I. 144 (17 John m. 23).

-----

Rex Hugoni de Bova, salutem. Mandamus vobis quod in fide qua nobis
tenemini non retineatis aliquem de militibus vel servientibus qui
fuerunt apud Dover., sed in patriam suam in pace sine dilatione ire
faciatis. Et in hujus, etc. Teste meipso apud Runimed. xxiij. die Junii
anno regni nostri xvij^{mo.}

(3) _Writs issued to the sheriffs of counties on 19th June, 1215._[1101]

-----

Footnote 1101:

See _supra_, pp. 50-51, 512–3 and 552. The text is taken from _Rot.
Pat._, I. 180 (17 John m. 23, d.). It will be found also in _New
Rymer_, I. 134, and in Stubbs _Sel. Chart._, 306–7.

-----

Rex vicecomiti, forestariis warennariis, custodibus ripariarum et
omnibus baillivis suis in eodem comitatu, salutem. Sciatis pacem firmam
esse reformatam per Dei gratiam inter nos et barones et liberos homines
regni nostri, sicut audire poteritis et videre per cartam nostram quam
inde fieri fecimus, quam etiam legi publice precepimus per totam
bailliam vestram et firmiter teneri; volentes et districte precipientes
quod tu vicecomes omnes de baillia tua secundum formam carte predicte
jurare facias xxv. baronibus de quibus mentio fit in carta predicta, ad
mandatum eorundem vel majoris partis eorum, coram ipsis vel illis quos
ad hoc atornaverint per litteras suas patentes, et ad diem et locum quos
ad hoc faciendum prefixerint predicti barones vel atornati ab eis ad
hoc. Volumus etiam et precipimus quod xii milites de comitatu tuo, qui
eligentur de ipso comitatu in primo comitatu qui tenebitur post
susceptionem litterarum istarum in partibus tuis, jurent de inquirendis
pravis consuetudinibus tam de vicecomitibus quam eorum ministris,
forestis, forestariis, warennis et warennariis, ripariis et earum
custodibus, et eis delendis, sicut in ipsa carta continetur. Vos igitur
omnes sicut nos et honorem nostrum diligitis, et pacem regni nostri,
omnia in carta contenta inviolabiliter observetis et ab omnibus
observari faciatis, ne pro defectu vestri, aut per excessum vestrum,
pacem regni nostri, quod Deus avertat, iterum turbari contingat. Et tu,
vicecomes, pacem nostram per totam bailliam tuam clamari facias et
firmiter teneri precipias. Et in hujus, etc. vobis mittimus. Teste me
ipso apud Runimede, xix. die Junii, anno regni nostri xvij^{mo.}

-----

Footnote 1102:

See supra, p. 553. The text is given by _New Rymer_, I. 134, and in
_Rot. Pat._, I. 134 (17 John, m. 21). A French version appears in
D’Achery, _Spicilegium_, XII. 573, and in Bémont, _Chartes_, xxiv. n.

-----

(4) _Writs issued to the sheriffs of counties on 27th June, 1215._[1102]

Rex vicecomiti Warewic. et duodecim militibus electis in eodem comitatu
ad inquirendum et delendum pravas consuetudines de vicecomitibus et
eorum ministris forestis et forestariis warennis et warennariis ripariis
et earum custodibus salutem. Mandamus vobis quod statim et sine
dilatione saisiatis in manum nostram terras et tenementa et catalla
omnium illorum de comitatu Warewic. qui jurare contradixerint viginti
quinque baronibus secundum formam contentam in carta nostra de
libertatibus vel eis quos ad hoc atornaverint. Et si jurare noluerint
statim post quindecim dies completos preterquam terre et tenementa et
catalla eorum in manu nostra saisita fuerint, omnia catalla sua vendi
faciatis et denarios inde preceptos salvo custodiatis, deputandos
subsidio terre sancte. Terras autem et tenementa eorum in manu nostra
teneatis, quousque juraverint. Et hoc provisum est per judicium domini
Cantuar. archiepiscopi et baronum regni nostri. Et in hujus etc. Teste
meipso, apud Winton. xxvij die Junii anno regni nostri xvij^{mo.}

_Idem mandatum est omnibus vicecomitibus Anglie._

(5) _Conventio facta inter Regem Anglie et barones ejusdem regni._[1103]

-----

Footnote 1103:

See _supra_, pp. 51-2 and 560-1. The text is taken from _New Rymer_,
I. 133 on the authority of _Rot. Claus._, 17 John, m. 27 d. It is
printed by Blackstone, _Great Charter_, 25–6.

-----

Hec est conventio facta inter dominum Johannem regem Anglie, ex una
parte, et Robertum filium Walteri, marescallum exercitus Dei et sancte
ecclesie in Anglia, et Ricardum comitem de Clare, Gaufridum comitem
Essex, et Glouc., Rogerum Bigot comitem Northfolc. et Suthfolc., Saherum
comitem Wint., Robertum comitem Oxon., Henricum comitem Hereford., et
barones subscriptos, scilicet Willielmum Mariscallum juniorem,
Eustachium de Vescy, Willielmum de Mobray, Johannem filium Roberti,
Rogerum de Monte Begonis, Willielmum de Lanvalay, et alios comites et
barones et liberos homines totius regni, ex altera parte, videlicet quod
ipsi comites et barones et alii prescripti tenebunt civitatem London, de
baillio domini regis, salvis interim domino regi firmis redditibus et
claris debitis suis, usque ad assumptionem beate Marie anno regni ipsius
regis xvii^{mo.} et dominus Cant. tenebit similiter de baillio domini
regis turrim London, usque ad predictum terminum, salvis civitati
London. libertatibus suis et liberis consuetudinibus suis, et salvo
cuilibet jure suo in custodia turris London., et ita quod interim non
ponat dominus rex munitionem vel vires alias in civitate predicta vel in
turri London. Fiant etiam infra predictum terminum sacramenta per totam
Angliam viginti quinque baronibus sicut continentur in carta de
libertatibus et securitate regno concessis vel attornatis viginti
quinque baronum sicut continentur in literis de duodecim militibus
eligendis ad delendum malas consuetudines de forestis et aliis. Et
preterea infra eundem terminum omnia que comites et barones et alii
liberi homines petunt a domino rege que ipse dixerit esse reddenda vel
que per xxv barones aut per majorem partem eorum judicata fuerint esse
reddenda reddantur secundum formam predicte carte. Et si hec facta
fuerint vel per dominum regem non steterit quominus ista facta fuerint
infra predictum terminum tunc civitas et turris London. ad eundem
terminum statim reddantur domino regi salvis predicte civitati
libertatibus suis et liberis consuetudinibus suis sicut prescriptum est.
Et si hec facta non fuerint et per dominum regem steterit quod ista non
fiant infra predictum terminum barones tenebunt civitatem predictam et
dominus archiepiscopus turrim London. donec predicta compleantur. Et
interim omnes ex utraque parte recuperabunt castra terras et villas quas
habuerunt in initio guerre orte inter dominum regem et barones.

(6) _Protest by the Archbishops of Canterbury and Dublin, and other
prelates, that chapter 48 of the Great Charter was to be interpreted
by both sides as limited._[1104]

-----

Footnote 1104:

See _supra_, pp. 52, 513, and 560. The protest is recorded in _Rot.
Claus._, 17 John, m. 27 d.; and is printed in _New Rymer_, I. 134.

-----

Omnibus Christi fidelibus ad quos presentes littere pervenerint, Sancti
Dei gracia, Cantuar. archiepiscopus, tocius Anglie primas et sancte
Romane ecclesie cardinalis et H. eadem gracia, archiepiscopus Dublin.,
W. quoque London., P. Winton., J. Bathon et Glaston., H. Lincoln., W.
Wygorn., et W. Coventr., ejusdem gracie dono episcopi, salutem in
Domino. Cum dominus Rex concesserit et per cartam suam confirmaverit,
quod omnes male consuetudines de forestis, et forestariis et eorum
ministris, statim inquirantur in quolibet comitatu, per duodecim milites
juratos de eodem comitatu; qui debent eligi per probos homines ejusdem
comitatus; et infra xl. dies post inquisitionem factam penitus, ita quod
nunquam revocentur, deleantur per eosdem; dum tamen dominus Rex hoc
prius sciat; universitati vestre notum fieri volumus, quod articulus
iste ita intellectus fuit ex utraque parte, quum de eo tractabatur, et
expressus, quod omnes consuetudines ille remanere debent, sine quibus
foreste servari non possint: et hoc presentibus litteris protestamur.

(7) _Protest by the Archbishops of Canterbury and Dublin and other
prelates that the barons who had renewed their homage at Runnymede
had repudiated their promise to ratify their oaths by formal
charters._[1105]

-----

Footnote 1105:

See _supra_, 560. The protest is printed in _Rot. Pat._, I. 144 (17 m.
21 d.), and also in _New Rymer_, I. 134.

-----

Omnibus Christi fidelibus etc. Stephanus, Dei gracia, Cantuar.
archiepiscopus, totius Anglie primas, et sancte Romane ecclesie
cardinalis Henricus Dublin archiepiscopus, Willielmus London., Petrus
Winton., Joscelinus Bathon, et Glaston., Hugo Lincoln., Walterus
Wigorn., Willielmus Conventr., Ricardus Cicestr., episcopi et magister
Pandulfus domini Pape subdiaconus et familiaris, salutem. Noverit
universitas vestra, quod quando facta fuit pax inter dominum regem
Johannem et barones Anglie, de discordia inter eos orta, idem barones
nobis presentibus et audientibus, promiserunt domino Regi, quod
quamcumque securitatem habere vellet ab eis de pace illa observanda,
ipsi ei habere facerent, preter castella et obsides. Postea vero quando
dominus Rex petiit ab eis, ut talem cartam ei facerent:—

“Omnibus etc. Sciatis nos astrictos esse per sacramenta et homagia
domino nostro Johanni Regi Anglie, de fide ei servanda de vita et
membris et terreno honore suo, contra omnes homines qui vivere
possint et mori; et ad jura sua et heredum suorum, et ad regnum
suum custodiendum et defendendum.”

Ipsi id facere noluerunt. Et in hujus rei testimonium id ipsum per hoc
scriptum protestamur.

VII. THE GREAT CHARTER OF HENRY III.[1106]
(SECOND REISSUE, 6TH NOVEMBER, 1217.)

-----

Footnote 1106:

See _supra_, pp. 171-9. The text is taken from that of the _Statutes
of the Realm_, I. 17-19.

-----

Henricus Dei gratia rex Anglie, dominus Hibernie, dux Normannie,
Aquitanie, et comes Andegavie, archiepiscopis, episcopis, abbatibus,
prioribus, comitibus, baronibus, vicecomitibus, prepositis, ministris et
omnibus ballivis et fidelibus suis presentem cartam inspecturis,
salutem. Sciatis quod intuitu Dei et pro salute anime nostre et animarum
antecessorum et successorum nostrorum, ad exaltationem sancte ecclesie
et emendationem regni nostri, concessimus et hac presenti carta
confirmavimus pro nobis et heredibus nostris in perpetuum, de consilio
venerabilis patris nostri domini Gualonis tituli Sancti Martini
presbiteri cardinalis et apostolice sedis legati, domini Walteri
Eboracensis archiepiscopi, Willelmi Londoniensis episcopi, et aliorum
episcoporum Anglie et Willelmi Mariscalli comitis Pembrocie, rectoris
nostri et regni nostri, et aliorum fidelium comitum et baronum nostrorum
Anglie, has libertates tenendas in regno nostro Anglie in perpetuum.

1. In primis concessimus Deo et hac presenti carta nostra confirmavimus
pro nobis et heredibus nostris in perpetuum quod anglicana ecclesia
libera sit, et habeat jura sua integra et libertates suas illesas.
Concessimus etiam omnibus liberis hominibus regni nostri pro nobis et
heredibus nostris in perpetuum omnes libertates subscriptas, habendas et
tenendas eis et heredibus suis de nobis et heredibus nostris.

2. Si quis comitum vel baronum nostrorum sive aliorum tenencium de nobis
in capite per servicium militare mortuus fuerit, et, cum decesserit,
heres ejus plene etatis fuerit et relevium debeat, habeat hereditatem
suam per antiquum relevium, scilicet heres vel heredes comitis de
baronia comitis integra per centum libras, heres vel heredes baronis de
baronia integra per centum libras, heres vel heredes militis de feodo
militis integro per centum solidos ad plus; et qui minus debuerit minus
det secundum antiquam consuetudinem feodorum.

3. Si autem heres alicujus talium fuerit infra etatem, dominus ejus non
habeat custodiam ejus nec terre sue antequam homagium ejus ceperit; et,
postquam talis heres fuerit in custodia, cum ad etatem pervenerit,
scilicet viginti et unius anni, habeat hereditatem suam sine relevio et
sine fine, ita tamen quod, si ipse, dum infra etatem fuerit, fiat miles,
nichilominus terra remaneat in custodia dominorum suorum usque ad
terminum predictum.

4. Custos terre hujusmodi heredis qui infra etatem fuerit non capiat de
terra heredis nisi rationabiles exitus et rationabiles consuetudines et
rationabilia servicia, et hoc sine destructione et vasto hominum vel
rerum; et si nos commiserimus custodiam alicujus talis terre vicecomiti
vel alicui alii qui de exitibus terre illius nobis debeat respondere, et
ille destructionem de custodia fecerit vel vastum, nos ab illo capiemus
emendam, et terra committatur duobus legalibus et discretis hominibus de
feodo illo qui de exitibus nobis respondeant vel ei cui eos
assignaverimus; et si dederimus vel vendiderimus alicui custodiam
alicujus talis terre, et ille destructionem inde fecerit vel vastum,
amittat ipsam custodiam et tradatur duobus legalibus et discretis
hominibus de feodo illo qui similiter nobis respondeant, sicut predictum
est.

5. Custos autem, quamdiu custodiam terre habuerit, sustentet domos,
parcos, vivaria, stagna, molendina et cetera ad terram illam pertinencia
de exitibus terre ejusdem, et reddat heredi, cum ad plenam etatem
pervenerit, terram suam totam instauratam de carucis et omnibus aliis
rebus, ad minus secundum quod illam recepit. Hec omnia observentur de
custodiis archiepiscopatuum, episcopatuum, abbatiarum, prioratuum,
ecclesiarum et dignitatum vacancium que ad nos pertinent, excepto quod
hujusmodi custodie vendi non debent.

6. Heredes maritentur absque disparagatione.

7. Vidua post mortem mariti sui statim et sine difficultate aliqua
habeat maritagium suum et hereditatem suam, nec aliquid det pro dote sua
vel pro maritagio suo vel pro hereditate sua, quam hereditatem maritus
suus et ipsa tenuerint die obitus ipsius mariti, et maneat in capitali
mesuagio mariti sui per quadraginta dies post obitum ipsius mariti sui,
infra quos assignetur ei dos sua, nisi prius ei fuerit assignata, vel
nisi domus ilia sit castrum; et si de castro recesserit, statim
provideatur ei domus competens in qua possit honeste morari, quousque
dos sua ei assignetur secundum quod predictum est, et habeat rationabile
estoverium suum interim de communi. Assignetur autem ei pro dote sua
tercia pars tocius terre mariti sui que sua fuit in vita sua, nisi de
minori dotata fuerit ad hostium ecclesie.

8. Nulla vidua distringatur ad se maritandam, dum vivere voluerit sine
marito, ita tamen quod securitatem faciet quod se non maritabit sine
assensu nostro, si de nobis tenuerit, vel sine assensu domini sui, si de
alio tenuerit.

9. Nos vero vel ballivi nostri non seisiemus terram aliquam nee redditum
pro debito aliquo quamdiu catalla debitoris presencia sufficiunt ad
debitum reddendum et ipse debitor paratus sit inde satisfacere; nee
plegii ipsius debitoris distringantur quamdiu ipse capitalis debitor
sufficiat ad solutionem debiti; et, si capitalis debitor defecerit in
solutione debiti, non habens unde reddat aut reddere nolit cum possit,
plegii respondeant pro debito; et, si voluerint, habeant terras et
redditus debitoris quousque sit eis satisfactum de debito quod ante pro
eo solverint, nisi capitalis debitor monstraverit se inde esse quietum
versus eosdem plegios.

10. Civitas Londonie habeat omnes antiquas libertates et liberas
consuetudines suas. Preterea volumus et concedimus quod omnes alie
civitates, et burgi, et ville, et barones de quinque portubus, et omnes
portus, habeant omnes libertates et liberas consuetudines suas.

11. Nullus distringatur ad faciendum majus servicium de feodo militis
nec de alio libero tenemento quam inde debetur.

12. Communia placita non sequantur curiam nostram, set teneantur in
aliquo loco certo.

13. Recognitiones de nova disseisina et de morte antecessoris non
capiantur nisi in suis comitatibus, et hoc modo: nos, vel si extra
regnum fuerimus, capitalis justiciarius noster, mittemus justiciarios
per unumquemque comitatum semel in anno, qui cum militibus comitatuum
capiant in comitatibus assisas predictas.

14. Et ea que in illo adventu suo in comitatu per justiciarios predictos
ad dictas assisas capiendas missos terminari non possunt, per eosdem
terminentur alibi in itinere suo; et ea que per eosdem propter
difficultatem aliquorum articulorum terminari non possunt, referantur ad
justiciarios nostros de banco, et ibi terminentur.

15. Assise de ultima presentatione semper capiantur coram justiciariis
nostris de banco et ibi terminentur.

16. Liber homo non amercietur pro parvo delicto nisi secundum modum
ipsius delicti, et pro magno delicto, secundum magnitudinem delicti,
salvo contenemento suo; et mercator eodem modo salva mercandisa sua; et
villanus alterius quam noster eodem modo amercietur salvo wainagio suo,
si incident in misericordiam nostram: et nulla predictarum
misericordiarum ponatur nisi per sacramenta proborum et legalium hominum
de visneto.

17. Comites et barones non amercientur nisi per pares suos, et non nisi
secundum modum delicti.

18. Nulla ecclesiastica persona amercietur secundum quantitatem
beneficii sui ecclesiastici, sed secundum laicum tenementum suum, et
secundum quantitatem delicti.

19. Nec villa, nec homo, distringatur facere pontes ad riparias nisi qui
ex antiquo et de jure facere debet.

20. Nulla riparia decetero defendatur, nisi ille que fuerunt in defenso
tempore regis Henrici avi nostri, per eadem loca et eosdem terminos
sicut esse consueverunt tempore suo.

21. Nullus vicecomes, constabularius, coronatores vel alii ballivi
nostri teneant placita corone nostre.

22. Si aliquis tenens de nobis laicum feodum moriatur, et vicecomes vel
ballivus noster ostendat litteras nostras patentes de summonitione
nostra de debito quod defunctus nobis debuit, liceat vicecomiti vel
ballivo nostro attachiare et inbreviare catalla defuncti inventa in
laico feodo ad valenciam illius debiti per visum legalium hominum, ita
tamen quod nichil inde amoveatur donec persolvatur nobis debitum quod
clarum fuerit, et residuum relinquatur executoribus ad faciendum
testamentum defuncti; et si nichil nobis debeatur ab ipso, omnia catalla
cedant defuncto, salvis uxori ipsius rationabilibus partibus suis.

23. Nullus constabularius vel ejus ballivus capiat blada vel alia
catalla alicujus qui non sit de villa ubi castrum situm est, nisi statim
inde reddat denarios aut respectum inde habere possit de voluntate
venditoris; si autem de villa ipsa fuerit, infra quadraginta dies
precium reddat.

24. Nullus constabularius distringat aliquem militem ad dandum denarios
pro custodia castri, si ipse eam facere voluerit in propria persona sua,
vel per alium probum hominem, si ipse eam facere non possit propter
rationabilem causam, et, si nos duxerimus eum vel miserimus in
exercitum, erit quietus de custodia secundum quantitatem temporis quo
per nos fuerit in exercitu de feodo pro quo fecit servicium in exercitu.

25. Nullus vicecomes, vel ballivus noster, vel alius capiat equos vel
carettas alicujus pro cariagio faciendo, nisi reddat liberationem
antiquitus statutam, scilicet pro caretta ad duos equos decem denarios
per diem, et pro caretta ad tres equos quatuordecim denarios per diem.

26. Nulla caretta dominica alicujus ecclesiastice persone vel militis
vel alicujus domine capiatur per ballivos predictos.

27. Nec nos nec ballivi nostri nec alii capiemus alienum boscum ad
castra vel alia agenda nostra, nisi per voluntatem illius cujus boscus
ille fuerit.

28. Nos non tenebimus terras eorum qui convicti fuerint de felonia, nisi
per unum annum et unum diem; et tunc reddantur terre dominis feodorum.

29. Omnes kidelli decetero deponantur penitus per Tamisiam et Medeweiam
et per totam Angliam, nisi per costeram maris.

30. Breve quod vocatur Precipe decetero non fiat alicui de aliquo
tenemento, unde liber homo perdat curiam suam.

31. Una mensura vini sit per totum regnum nostrum, et una mensura
cervisie, et una mensura bladi, scilicet quarterium Londonie, et una
latitudo pannorum tinctorum et russettorum et haubergettorum, scilicet
due ulne infra listas; de ponderibus vero sit ut de mensuris.

32. Nichil detur de cetero pro brevi inquisitionis ab eo qui
inquisitionem petit de vita vel membris, set gratis concedatur et non
negetur.

33. Si aliquis teneat de nobis per feodifirmam vel soccagium, vel per
burgagium, et de alio terram teneat per servicium militare, nos non
habebimus custodiam heredis nee terre sue que est de feodo alterius,
occasione illius feodifirme, vel soccagii, vel burgagii, nec habebimus
custodiam illius feodifirme vel soccagii vel burgagii, nisi ipsa
feodifirma debeat servicium militare. N os non habebimus custodiam
heredis vel terre alicujus quam tenet de alio per servicium militare,
occasione alicujus parve serjanterie quam tenet de nobis per servicium
reddendi nobis cultellos, vel sagittas, vel hujusmodi.

34. Nullus ballivus ponat decetero aliquem ad legem manifestam vel ad
juramentum simplici loquela sua, sine testibus fidelibus ad hoc
inductis.

35. Nullus liber homo decetero capiatur vel inprisonetur aut
disseisiatur de aliquo libero tenemento suo vel libertatibus vel liberis
consuetudinibus suis, aut utlagetur, aut exulet, aut aliquo alio modo
destruatur, nec super eum ibimus, nec super eum mittemus, nisi per
legale judicium parium suorum, vel per legem terre.

36. Nulli vendemus, nulli negabimus aut differemus rectum vel justiciam.

37. Omnes mercatores, nisi publice antea prohibiti fuerint, habeant
salvum et securum exire de Anglia, et venire in Angliam, et morari, et
ire per Angliam tarn per terram quam per aquam ad emendum vel vendendum
sine omnibus toltis malis per antiquas et rectas consuetudines,
preterquam in tempore gwerre, et si sint de terra contra nos gwerrina;
et si tales inveniantur in terra nostra in principio gwerre,
attachientur sine dampno corporum vel rerum, donee sciatur a nobis vel a
capitali justiciario nostro quomodo mercatores terre nostre tractentur,
qui tunc invenientur in terra contra nos gwerrina; et, si nostri salvi
sint ibi, alii salvi sint in terra nostra.

38. Si quis tenuerit de aliqua escaeta, sicut de honore Wallingefordie,
Bolonie, Notingeham, Lancastrie, vel de aliis que sunt in manu nostra,
et sint baronie, et obierit, heres ejus non det aliud relevium nec
faciat nobis aliud servicium quam faceret baroni, si ilia esset in manu
baronis; et nos eodem modo eam tenebimus quo baro eam tenuit; nec nos,
occasione tabs baronie vel escaete, habebimus aliquam escaetam vel
custodiam aliquorum hominum nostrorum, nisi alibi tenuerit de nobis in
capite ille qui tenuit baroniam vel escaetam.

39. Nullus liber homo decetero det amplius alicui vel vendat de terra
sua quam ut de residuo terre sue possit sufficienter fieri domino feodi
servicium ei debitum quod pertinet ad feodum illud.

40. Omnes patroni abbatiarum qui habent cartas regum Anglie de
advocatione, vel antiquam tenuram vel possessionem, habeant earum
custodiam cum vacaverint, sicut habere debent, et sicut supra declaratum
est.

41. Nullus capiatur vel imprisonetur propter appellum femine de morte
alterius quam viri sui.

42. Nullus comitatus decetero teneatur, nisi de mense in mensem; et, ubi
major terminus esse solebat, major sit. Nec aliquis vicecomes vel
ballivus faciat turnum suum per hundredum nisi bis in anno et non nisi
in loco debito et consueto, videlicet semel post Pascha et iterum post
festum sancti Michaelis. Et visus de franco plegio tunc fiat ad ilium
terminum sancti Michaelis sine occasione, ita scilicet quod quilibet
habeat libertates suas quas habuit et habere consuevit tempore regis
Henrici avi nostri, vel quas postea perquisivit. Fiat autem visus de
franco plegio sic, videlicet quod pax nostra teneatur, et quod tethinga
integra sit sicut esse consuevit, et quod vicecomes non querat
occasiones, et quod contentus sit eo quod vicecomes habere consuevit de
visu suo faciendo tempore regis Henrici avi nostri.

43. Non liceat alicui decetero dare terram suam alicui domui religiose,
ita quod eam resumat tenendam de eadem domo, nec liceat alicui domui
religiose terram alicujus sic accipere quod tradat eam illi a quo ipsam
receperit tenendam. Si quis autem de cetero terram suam alicui domui
religiose sic dederit, et super hoc convincatur, donum suum penitus
cassetur, et terra illa domino suo illius feodi incurratur.

44. Scutagium decetero capiatur sicut capi consuevit tempore regis
Henrici avi nostri.

45. Omnes autem istas consuetudines predictas et libertates quas
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.

46. Salvis archiepiscopis, episcopis, abbatibus, prioribus, templariis,
hospitalariis, comitibus, baronibus et omnibus aliis tam ecclesiasticis
personis quam secularibus, libertatibus et liberis consuetudinibus quas
prius habuerunt.

47. Statuimus etiam, de communi consilio tocius regni nostri, quod omnia
castra adulterina, videlicet ea que a principio guerre mote inter
dominum Johannem patrem nostrum et barones suos Anglie constructa
fuerint vel reedificata, statim diruantur. Quia vero nondum habuimus
sigillum hanc [cartam] sigillis domini legati predicti et comitis
Willelmi Mariscalli rectoris [nostri] et regni nostri fecimus sigillari.

VIII. CARTA DE FORESTA.[1107]
(6 NOVEMBER, 1217.)

-----

Footnote 1107:

See _supra_, pp. 171-2. The text is taken from that of the _Statutes
of the Realm_, I. 20-21.

-----

Henricus Dei gratia rex Anglie, dominus Hibernie, dux Normannie,
Aquitanie et comes Andegavie, archiepiscopis, episcopis, abbatibus,
prioribus, comitibus, baronibus, justiciariis, forestariis,
vicecomitibus, prepositis, ministris, et omnibus ballivis et fidelibus
suis, salutem. Sciatis quod, intuitu Dei et pro salute anime nostre et
animarum antecessorum et successorum nostrorum, ad exaltacionem Sancte
Ecclesie et emendacionem regni nostri, concessimus et hac presenti carta
confirmavimus pro nobis et heredibus nostris in perpetuum, de consilio
venerabilis patris nostri domini Gualonis tituli sancti Martini
presbiteri cardinalis et apostolice sedis legati, domini Walteri
Eboracensis archiepiscopi, Willelmi Londoniensis episcopi, et aliorum
episcoporum Anglie, et Willelmi Marescalli comitis Penbrocie, rectoris
nostri et regni nostri, et aliorum fidelium comitum et baronum nostrorum
Anglie, has libertates subscriptas tenendas in regno nostro Anglie, in
perpetuum:

1. In primis omnes foreste quas Henricus rex avus noster afforestavit
videantur per bonos et legales homines et, si boscum aliquem alium quam
suum dominicum afforestaverit ad dampnum illius cujus boscus fuerit,
deafforestentur. Et si boscum suum proprium afforestaverit, remaneat
foresta, salva communa de herbagio et aliis in eadem foresta, illis qui
eam prius habere consueverunt.

2. Homines qui manent extra forestam non veniant decetero coram
justiciariis nostris de foresta per communes summoniciones, nisi sint in
placito, vel plegii alicujus vel aliquorum qui attachiati sunt propter
forestam.

3. Omnes autem bosci qui fuerunt afforestati per regem Ricardum
avunculum nostrum, vel per regem Johannem patrem nostrum usque ad primam
coronacionem nostram, statim deafforestentur, nisi fuerit dominicus
boscus noster.

4. Archiepiscopi, episcopi, abbates, priores, comites et barones et
milites et libere tenentes, qui boscos suos habent in forestis, habeant
boscos suos sicut eos habuerunt tempore prime coronacionis predicti
regis Henrici avi nostri, ita quod quieti sint in perpetuum de omnibus
purpresturis, vastis et assartis factis in illis boscis, post illud
tempus usque ad principium secundi anni coronacionis nostre. Et qui de
cetero vastum, purpresturam, vel assartum sine licencia nostra in illis
fecerint, de vastis et assartis respondeant.

5. Reguardores nostri eant per forestas ad faciendum reguardum sicut
fieri consuevit tempore prime coronacionis predicti regis Henrici avi
nostri, et non aliter.

6. Inquisicio, vel visus de expeditacione canum existencium in foresta,
decetero fiat quando debet fieri reguardum, scilicet de tercio anno in
tercium annum; et tunc fiat per visum et testimonium legalium hominum et
non aliter. Et ille, cujus canis inventus fuerit tunc non expeditatus,
det pro misericordia tres solidos; et de cetero nullus bos capiatur pro
expeditacione. Talis autem sit expeditacio per assisam communiter quod
tres ortilli abscidantur sine pelota de pede anteriori; nec expeditentur
canes de cetero, nisi in locis ubi consueverunt expeditari tempore prime
coronacionis regis Henrici avi nostri.

7. Nullus forestarius vel bedellus decetero faciat scotale, vel colligat
garbas, vel avenam, vel bladum aliud, vel agnos, vel porcellos, nec
aliquam collectam faciant; et per visum et sacramentum duodecim
reguardorum quando facient reguardum, tot forestarii ponantur ad
forestas custodiendas, quot ad illas custodiendas rationabiliter
viderint sufficere.

8. Nullum suanimotum de cetero teneatur in regno nostro nisi ter in
anno; videlicet in principio quindecim dierum ante festum Sancti
Michaelis, quando agistatores conveniunt ad agistandum dominicos boscos
nostros; et circa festum Sancti Martini quando agistatores nostri debent
recipere pannagium nostrum; et ad ista duo suanimota conveniant
forestarii, viridarii, et agistatores, et nullus alius per
districtionem; et tercium suanimotum teneatur in inicio quindecim dierum
ante festum Sancti Johannis Baptiste, pro feonacione bestiarum
nostrarum; et ad istud suanimotum tenendum convenient forestarii et
viridarii et nulli alii per districtionem. Et preterea singulis
quadraginta diebus per totum annum conveniant viridarii et forestarii ad
videndum attachiamenta de foresta, tam de viridi, quam de venacione, per
presentacionem ipsorum forestariorum, et coram ipsis attachiatis.
Predicta autem suanimota non teneantur nisi in comitatibus in quibus
teneri consueverunt.

9. Unusquisque liber homo agistet boscum suum in foresta pro voluntate
sua et habeat pannagium suum. Concedimus eciam quod unusquisque liber
homo possit ducere porcos suos per dominicum boscum nostrum, libere et
sine inpedimento, ad agistandum eos in boscis suis propriis, vel alibi
ubi voluerit. Et si porci alicujus liberi hominis una nocte
pernoctaverint in foresta nostra, non inde occasionetur ita quod aliquid
de suo perdat.

10. Nullus de cetero amittat vitam vel menbra pro venacione nostra; set,
si aliquis captus fuerit et convictus de capcione venacionis, graviter
redimatur, si habeat unde redimi possit; et si non habeat unde redimi
possit, jaceat in prisona nostra per unum annum et unum diem; et, si
post unum annum et unum diem plegios invenire possit, exeat a prisona;
sin autem, adjuret regnum Anglie.

11. Quicunque archiepiscopus, episcopus, comes vel baro transient per
forestam nostram, liceat ei capere unam vel duas bestias per visum
forestarii, si presens fuerit; sin autem, faciat cornari, ne videatur
furtive hoc facere.

12. Unusquisque liber homo decetero sine occasione faciat in bosco suo,
vel in terra sua quam habeat in foresta, molendinum, vivarium, stagnum,
marleram, fossatum, vel terram arabilem extra cooperatum in terra
arabili, ita quod non sit ad nocumentum alicujus vicini.

13. Unusquisque liber homo habeat in boscis suis aereas, ancipitrum et
spervariorum et falconum, aquilarum, et de heyrinis et habeat similiter
mel quod inventum fuerit in boscis suis.

14. Nullus forestarius de cetero, qui non sit forestarius de feudo
reddens nobis firmam pro balliva sua, capiat chiminagium aliquod in
balliva sua; forestarius autem de feudo firmam nobis reddens pro balliva
sua capiat chiminagium, videlicet pro careta per dimidium annum duos
denarios, et per alium dimidium annum duos denarios, et pro equo qui
portat sumagium per dimidium annum unum obolum, et per alium dimidium
annum obolum, et non nisi de illis qui de extra ballivam suam, tanquam
mercatores, veniunt per licenciam suam in ballivam suam ad buscam,
meremium, corticem vel carbonem emendum, et alias ducendum ad vendendum
ubi voluerint: et de nulla alia careta vel sumagio aliquod chiminagium
capiatur: et non capiatur chiminagium nisi in locis illis ubi antiquitus
capi solebat et debuit. Illi autem qui portant super dorsum suum buscam,
corticem, vel carbonem, ad vendendum, quamvis inde vivant, nullum de
cetero dent chiminagium. De boscis autem aliorum nullum detur
chiminagium forestariis nostris, preterquam de dominicis boscis nostris.

15. Omnes utlagati pro foresta tantum a tempore regis Henrici avi nostri
usque ad primam coronacionem nostram, veniant ad pacem nostram sine
inpedimento, et salvos plegios inveniant quod de cetero non forisfaciant
nobis de foresta nostra.

16. Nullus castellanus vel alius ten eat placita de foresta sive de
viridi sive de venacione, sed quilibet forestarius de feudo attachiet
placita de foresta tam de viridi quam de venacione, et ea presentet
viridariis provinciarum et cum irrotulata fuerint et sub sigillis
viridariorum inclusa, presententur capitali forestario cum in partes
illas venerit ad tenendum placita foreste, et coram eo terminentur.

17. Has autem libertates de forestis concessimus omnibus, salvis
archiepiscopis, episcopis, abbatibus, prioribus, comitibus, baronibus,
militibus et aliis tam personis ecclesiasticis quam secularibus,
Templariis et Hospitalariis, libertatibus et liberis consuetudinibus in
forestis et extra, in warennis et aliis, quas prius habuerunt. Omnes
autem istas consuetudines predictas et libertates, quas 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. Quia vero sigillum nondum habuimus, presentem cartam sigillis
venerabilis patris nostri domini Gualonis tituli Sancti Martini
presbiteri cardinalis, apostolice sedis legati, et Willelmi Marescalli
comitis Penbrok, rectoris nostri et regni nostri, fecimus sigillari.
Testibus prenominatis et aliis multis. Datum per manus predictorum
domini legati et Willelmi Marescalli apud Sanctum Paulum Londonie, sexto
die Novembris, anno regni nostri secundo.

SELECT BIBLIOGRAPHY AND LIST OF AUTHORITIES REFERRED TO.

I. COMMENTARIES AND OTHER WORKS ON MAGNA CARTA
(CHRONOLOGICALLY ARRANGED).

1. _The Mirror of Justices_, edited by William Joseph Whittaker (Selden
Society); 1895.
2. Edward Coke, _Second Institute_, 1641; 17th edition, 1817.
3. Edward Cooke, _Magna Charta made in the ninth year of King Henry
III. and confirmed by King Edward I. in the twentieth year of his
reign_; 1684.
4. William Blackstone, _The Great Charter and Charter of the Forest, to
which is prefixed the History of the Charters_; 1759.
5. Daines Barrington, _Observations upon the Statutes from Magna Charta
to 21 James I._; 1766.
6. Francis Stoughton Sullivan, _An Historical Treatise on the Feudal
Law, with a Commentary on Magna Charta_; 1772.
7. Richard Thomson, _An Historical Essay on the Magna Charta of King
John_; 1829.
8. Thaddaeus Lau, _Die Entstehungsgeschichte der Magna Charta_; 1856.
9. Charles Bémont, _Chartes des Libertés Anglaises_; 1892.
10. Boyd C. Barrington, _The Magna Charta and other Great Charters of
England_; 1900.
11. Elemér Hantos, _The Magna Carta of the English and of the Hungarian
Constitution_; 1904.

II. CHRONICLES AND ANNALS.

1. _Annals of Dunstable_, edited by Henry Richards Luard (Rolls
Series); 1866.
2. _Annals of Waverley_, edited by Henry Richards Luard (Rolls Series);
1865.
3. Benedict Abbot, _Gesta Regis Henrici Secundi_, edited by William
Stubbs (Rolls Series); 1867.
4. Jocelyn of Brakelond, _Chronica de rebus gestis Samsonis Abbatis
Monasterii Sancti Edmundi_, edited by John Gage Rokewode (Camden
Society); 1840.
5. Matthew Paris, _Chronica Majora_, edited by Henry Richards Luard
(Rolls Series); 1872.
6. _Memorials of St. Dunstan_, edited by William Stubbs (Bulls Series);
1874.
7. Ralph of Coggeshall, _Chronicon Anglicanum_, edited by Joseph
Stevenson (Rolls Series); 1875.
8. Roger of Hoveden, _Chronica_, edited by William Stubbs (Rolls
Series); 1868-1871.
9. Roger of Wendover, _Chronica sive Flores Historiarum_, edited by
Henry Octavius Coxe (Eng. Hist. Society); 1841.
10. Walter of Coventry, _Memoriale_, edited by William Stubbs (Rolls
Series); 1872.
11. Walter of Hemingburgh, _Chronicon de Gestis Regum Angliae_, edited
by Hans Claude Hamilton (Eng. Hist. Society); 1848-9.
12. William of Malmesbury, _Gesta Regum Anglorum_, edited by William
Stubbs (Rolls Series); 1887-9.

III. COLLECTIONS OF STATUTES, CHARTERS, AND TREATIES.

1. _Statutes of the Realm_ (Record Commission); 1810-28.
2. _Statutes at Large._
3. _Acts of the Parliament of Scotland from 1124 to 1707_, edited by
Thomas Thomson and Cosmo Innes; 1814-75.
4. _Rotuli Litterarum Clausarum in Turri Londinensi Asservata_, edited
by Thomas Duffus Hardy (Record Commission); 1833.
5. _Rotuli Litterarum Patentum in Turri Londinensi Asservata_, edited
by Thomas Duffus Hardy (Record Commission); 1835.
6. _Rotuli Chartarum in Turri Londinensi Asservata_, edited by Thomas
Duffus Hardy (Record Commission); 1837.
7. _Rotuli de Oblatis et Finibus_, edited by Thomas Duffus Hardy
(Record Commission); 1835-6.
8. _Rotuli Parliamentorum_; 1832.
9. _Rotuli Hundredorum_ (Record Commission); 1812-18.
10. _Testa de Neville sive Liber Feodorum_ (Record Commission); 1807.
11. _The Red Book of the Exchequer_, edited by Hubert Hall (Rolls
Series); 1896.
12. _Munimenta Gildhallae Londoniensis: Liber Albus, Liber Custumarum
et Liber Horn_, edited by Henry Thomas Riley (Rolls Series); 1859-62.
13. Thomas Rymer, _Foedera, Conventiones, Litterae, et cujuscunque
generis acta publica_; 4th edition (Record Commission); 1816-69
(referred to throughout as “New Rymer”).
14. _Ancient Charters, Royal and Private_, edited by John Horace Round
(Pipe Roll Society, vol. 10); 1888.
15. Jean Luc D’Achery, _Vetorum Scriptorum Spicilegium_; 1655-77.
16. _Hemingi Chartularum Ecclesiae Wigornensis_, edited by Thomas
Hearne; 1723.
17. August Potthast, _Regesta Pontificum Romanorum_; 1874-5.
18. Alexandre Teulet, _Layettes du Trésor_; 1863.
19. William Stubbs, _Select Charters and other Illustrations of English
Constitutional History_; 7th edition, 1890.
20. George Walter Prothero, _Select Statutes and other Constitutional
Documents illustrative of the reigns of Elizabeth and James I._;
1894.
21. Samuel Rawson Gardiner, _The Constitutional Documents of the
Puritan Revolution_; 1889.
22. Walter de Gray Birch, _Historical Charters and Constitutional
Documents of the City of London_; 1887.

IV. COLLECTIONS OF PLEAS, TRIALS, AND OTHER RECORD EVIDENCE.

1. _Placitorum Abbreviatio_, Richard I. to Edward II. (Record
Commission); 1811.
2. Melville Madison Bigelow, _Placita Anglo-Normannica_; 1879.
3. _Bracton’s Note Book: a Collection of Cases_, edited by Frederic
William Maitland; 1887.
4. Thomas Bayly Howell and Thomas Jones Howell, _Complete Collection of
State Trials_; 1809-28 (referred to as “State Trials”).
5. _Select Pleas of the Crown_, edited by Frederic William Maitland
(Selden Society); 1888.
6. _Select Pleas in Manorial and other Seignorial Courts_, edited by
Frederic William Maitland (Selden Society); 1889.
7. _Select Pleas of the Forest_, edited by George James Turner (Selden
Society); 1901.
8. _Select Pleas, Starrs, and other Records from the Rolls of the
Exchequer of the Jews_, edited by James McMullen Rigg (Selden
Society); 1902.
9. _Year Books of the Reign of Edward I._, edited by Alfred John
Horwood and Luke Owen Pike (Rolls Series); 1863-1901.
10. _Year Books of Edward II._, 1307–1309, edited by Frederic William
Maitland (Selden Society); 1903.
11. _Great Roll of the Pipe for the Twelfth Year of Henry II._ (Pipe
Roll Society, vol. 9); 1888.
12. Thomas Madox, _History and Antiquities of the Exchequer of the
Kings of England_; 2nd edition, 1769 (referred to throughout as
“Madox”).
13. Thomas Madox, _Firma Burgi_; 1726.
14. Thomas Madox, _Baronia Anglica_; 1741.

V. LEGAL TREATISES—MEDIEVAL.

1. Ranulf Glanvill, _Tractatus de Legibus et Consuetudinibus Regni
Angliae_.
2. Richard, son of Nigel, _De necessariis Observantibus Scaccarii
Dialogus_ (commonly called _Dialogus de Scaccario_), edited by Arthur
Hughes, C. G. Crump, and C. Johnson; 1902.
3. Henry de Bracton, _De legibus et consuetudinibus Angliae_, edited by
Sir Travers Twiss (Rolls Series); 1878-83.
4. Fleta, _Commentarius Juris Anglicani_; edition of 1647.
5. Thomas Littleton, _Treatise of Tenures_; edition of 1841.

VI. LEGAL TREATISES—MODERN.

1. William Reynell Anson, _The Law and Custom of the Constitution_; 2nd
edition, 1892.
2. William Blackstone, _Commentaries on the Laws of England_; edition
of 1826.
3. Edward Coke, _Institutes of the Laws of England_; 17th edition,
1817. (The _First Institute_ is generally referred to as “Coke on
Littleton.”)
4. _Encyclopaedia of the Laws of England_, edited by Alexander Wood
Renton; 1897-8.
5. Matthew Hale, _Historia Placitorum Coronae_; 1736.
6. Edward Jenks, _Modern Land Law_; 1899.
7. John Manwood, _A Treatise and Discourse of the Laws of the Forest_;
1598.
8. Henry John Stephen, _Commentaries on the Laws of England_; 13th
edition, 1899.
9. James Bradley Thayer, _A Preliminary Treatise on Evidence at the
Common Law_; 1898.

VII. LEGAL AND CONSTITUTIONAL HISTORIES.

1. Melville Madison Bigelow, _History of Procedure in England_; 1880.
2. Heinrich Brunner, _Die Entstehung der Schwurgerichte_; 1871.
3. Edward Creasy, _Progress of the English Constitution_; 1874.
4. Rudolf Gneist, _The History of the English Constitution_, translated
by Philip A. Ashworth; edition of 1891.
5. Rudolf Gneist, _The English Parliament in its Transformations
through a Thousand Years_, translated by A. H. Keane; 1887.
6. William Searle Holdsworth, _A History of English Law_, vol. 1; 1903.
7. Dudley Julius Medley, _A Student’s Manual of English Constitutional
History_; 2nd edition, 1898.
8. Stuart Archibald Moore and Hubert Stuart Moore, _The History and Law
of Fisheries_; 1903.
9. Frederic Pollock and Frederic William Maitland, _The History of
English Law before the time of Edward I._; 1st edition, 1895
(referred to throughout as “Pollock and Maitland”).
10. Luke Owen Pike, _A Constitutional History of the House of Lords,
from original sources_; 1894.
11. John Reeves, _History of English Law_; 3rd edition, 1783–4.
12. James Fitzjames Stephen, _A History of the Criminal Law in
England_; 1893.
13. William Stubbs, _The Constitutional History of England in its
Origin and Development_: (_a_) vol. 1, 6th edition, 1897; (_b_) vol.
2, 4th edition, 1894; (_c_) vol. 3, 5th edition, 1896.
14. Thomas Pitt Taswell-Langmead, _English Constitutional History from
the Teutonic Conquest to the Present Time_; 5th edition, 1896.
15. Hannis Taylor, _The Origin and Growth of the English Constitution_;
1898.

VIII. GENERAL HISTORIES.

1. Robert Brady, _Complete History of England_; 1685.
2. Henry Care, _English Liberties in the Freeborn Subjects’
Inheritance_; 1719.
3. John Richard Green, _A Short History of the English People_; edition
of 1875.
4. Robert Henry, _History of Great Britain_; 6th edition, 1806.
5. John Lingard, _A History of England to 1688_; 1819-30.
6. James Mackintosh, _History of England_; edition of 1853.
7. Goldwin Smith, _The United Kingdom: a Political History_; 1899.
8. James Tyrrell, _History of England, 1697–1704_.

IX. HISTORIES OF SPECIAL PERIODS.

1. Mary Bateson, _Mediaeval England_ (Story of the Nations Series);
1903.
2. Edward Augustus Freeman, _The Norman Conquest of England_; 1870-9.
3. Edward Augustus Freeman, _The Reign of William Rufus_; 1882.
4. Samuel Rawson Gardiner, _History of England from the Accession of
James I. to the Outbreak of the Civil War_; 1883-4.
5. Henry Hallam, _View of the State of Europe during the Middle Ages_;
7th edition, 1837.
6. John Mitchell Kemble, _Saxons in England_; 1849.
7. Kate Norgate, _England under Angevin Kings_; 1887.
8. Kate Norgate, _John Lackland_; 1902.
9. Charles Pearson, _A History of England during the Early and Middle
Ages_; 1867.
10. George Walter Prothero, _The Life of Simon de Montfort, Earl of
Leicester_; 1877.
11. James Henry Ramsay, _The Foundations of England_; 1898.
12. James Henry Ramsay, _The Angevin Empire_; 1903.

X. MISCELLANEOUS.

1. Robert Brady, _A Full and Clear Answer_; 1683.
2. Émile Boutmy, _Etudes de Droit Constitutionnel_; 1885.
3. Edmund Burke, _Works_; edition of 1837 (Boston).
4. Stephen Dowell, _History of Taxation and Taxes in England_; 1884.
5. Hubert Hall, _History of the Customs Revenue in England_; 1885.
6. Charles Gross, Preface to _Select Cases from the Coroners’ Rolls_
(Selden Society); 1896.
7. Gaillard Thomas Lapsley, _The County Palatine of Durham_; 1900.
8. Henry Richards Luard, Preface to vol. 2 of Matthew Paris, _Chronica
Majora_ (Rolls Series); 1872.
9. Achille Luchaire, _Communes Françaises_, 1890.
10. John Luffman, _Charters of London_; 1793.
11. George Neilson, _Trial by Combat_; 1890.
12. John Noorthouck, _A New History of London_; 1773.
13. Jesse Macy, _The English Constitution; a Commentary on its nature
and growth_, 1897.
14. Frederic William Maitland, _Township and Borough_; 1898.
15. Frederic William Maitland, in _Social England_, edited by Henry
Duff Trail, vol. 1; 1st edition, 1893.
16. Frederic William Maitland, Preface to _Select Pleas of the Crown_
(Selden Society); 1888.
17. Frederic William Maitland, Preface to _Select Pleas in Manorial and
other Seignorial Courts_ (Selden Society); 1889.
18. Frederic William Maitland, Preface to _The Mirror of Justices_
(Selden Society); 1895.
19. Charles de Montesquieu, _De l’Esprit des Lois_; edition of 1750,
Edinburgh.
20. Frederic Pollock, _Essays in Jurisprudence and Ethics_; 1894.
21. James McMullen Rigg, Preface to _Select Pleas, Starrs, and other
Records from the Rolls of the Exchequer of the Jews_ (Selden
Society); 1902.
22. Oskar Rössler, _Kaiserin Mathilde und das Zeitalter der Anarchie in
England_; 1897.
23. John Horace Round, editorial notes to _Ancient Charters, Royal and
Private_ (Pipe Roll Society, vol. 10); 1888.
24. John Horace Round, _Geoffrey de Mandeville: a Study of the
Anarchy_; 1892.
25. John Horace Round, _Feudal England: Historical Studies of the
Eleventh and Twelfth Centuries_; 1895.
26. John Horace Round, _The Commune of London and other Studies_; 1899.
27. Frederic Seebohm, _The English Village Community: an Essay on
Economic History_; 1883.
28. William Stubbs, Preface to Walter of Coventry, _Memoriale_ (Rolls
Series); 1872.
29. George James Turner, Preface to _Select Pleas of the Forest_
(Selden Society); 1901.
30. Paul Vinogradoff, _Villainage in England: Essays in English
Mediaeval History_; 1892.

XI. CONTRIBUTIONS TO PERIODICAL LITERATURE.

1. George B. Adams, _London and the Commune_, in _Engl. Hist. Rev._ for
October, 1904; xix. 706.
2. Mary Bateson, _A London Municipal Collection of the Reign of John_,
in _Engl. Hist. Rev._ for July, 1902; xii. 480.
3. G. H. Blakesley, _Manorial Jurisdiction_, in _Law Quarterly Review_
for April, 1889; v. 113.
4. Hubert Hall, _An Unknown Charter of Liberties_, in _Engl. Hist.
Rev._ for April, 1894; ix. 326.
5. Edward Jenks, _The Story of the Habeas Corpus_, in _Law Quarterly
Review_ for January, 1902; xviii. 64.
6. Edward Jenks, _The Myth of Magna Carta_, in _Independent Review_ for
November, 1904; iv. 260.
7. Frederic William Maitland, Review of Dr. Charles Gross’s _The Early
Historical Influence of the Office of Coroner_, in _Engl. Hist. Rev._
for

October, 1903; viii. 758.

8. Cardinal Manning, _The Pope and Magna Charta_, in _Contemporary
Review_ for December, 1875 (subsequently reprinted 1885, Baltimore).
9. George Walter Prothero, _An unknown Charter of Liberties_, in _Engl.
Hist. Rev._ for January, 1894; ix. 117.
10. John Horace Round, _An unknown Charter of Liberties_, in _Engl.
Hist. Rev._ for April, 1893; viii. 288.
11. John Horace Round, _The Great Assize_, in _The Athenaeum_ for 28th
January, 1899; p. 113.
12. H. B. Simpson, _The Office of Constable_, in _Engl. Hist. Rev._ for
October, 1895; x. 625.

XII. REPORTS, BIBLIOGRAPHIES, AND DICTIONARIES.

1. _Reports from the Lords’ Committee appointed to search the Journals
of the House, Rolls of Parliament, and other Records for all matters
touching the Dignity of a Peer_; 1st Report, 1820.
2. _Reports from the Select Committee appointed to inquire into the
state of the Public Records of the Kingdom_ (Record Commission);
1800.
3. _Report on Manuscripts in Various Collections_ (Historical
Manuscripts Commission); 1901.
4. Charles Gross, _The Sources and Literature of English History_;
1900.
5. Robert Watt, _Bibliotheca Britannica_; 1824.
6. William Thomas Lowndes, _The Bibliographer’s Manual of English
Literature_; 1857-64.
7. _Dictionary of National Biography_, edited by Leslie Stephen and
Sidney Lee; 1885-1900.

INDEX TO STATUTES.

Page
20 Henry III. c. 6, 78, 252
c. 9, 504
c. 11, 247 n., 492 n.
52 Henry III. c. 15, 264 n.
c. 16, 78 n., 248 n., 324 n.
c. 29, 412, 413 n.
3 Edward I. c. 1, 247 n., 366
c. 6, 345
c. 7, 388 n.
c. 10, 371
c. 11, 424, 433 n.
c. 12, 400
c. 20, 247 n.
c. 21, 245
c. 32, 387, 388 n., 393
c. 36, 81, 306
c. 41, 520 n.
c. 48, 248
4 Edward I. (Stat. of Rageman), 331 n.
6 Edward I. c. 1, 177 n.
c. 4, 67, 259 n.
c. 5, 245
c. 9, 424, 425
7 Edward I. 178
13 Edward I. c. 4, 247 n.
c. 5, 325 n.
c. 9, 424
c. 13, 364
c. 29, 420 n., 424
c. 30, 327, 330, 333
c. 39, 330
c. 47, 357
18 Edward I. 178
27 Edward I. c. 3, 330
28 Edward I. c. 4, 316
c. 5, 315
c. 7, 370
c. 12, 264
c. 14, 375
Stat. 3, c. 13, 366 n.
_Statutes of uncertain date._
Statute of Jewry, 271, 274
_Praerogativa Regis_, 398, 397 n.
_Consuetudines et Assisae de foresta_, 501
1 Edward III. Stat. 2, c. 1, 510
c. 13, 481
c. 17, 364 n.
2 Edward III. c. 2, 330
c. 9, 465 n., 472
c. 11, 310 n.
4 Edward III. c. 15, 376 n.
5 Edward III. c. 9, 441 n.
9 Edward III. c. 1, 472
14 Edward III. Stat. 1, c. 9, 376 n.
c. 21, 465 n.
Stat. 2, 281
Stat. 4, c. 4, 250
c. 5, 250
25 Edward III. Stat. 3, c. 4, 404
Stat. 4, c. 7, 472 n.
Stat. 5, c. 4, 441
c. 11, 82
27 Edward III. Stat. 2, c. 8, 440
28 Edward III. c. 13, 440
37 Edward III. c. 18, 441
38 Edward III. c. 3, 441-2 n.
42 Edward III. c. 1, 185, 424 n.
c. 3, 442 n.
2 Richard II. Stat. 1, c. 1, 473 n.
5 Richard II. Stat. 1, c. 2, 485
6 Richard II. c. 5, 333 n.
c. 6, 529 n.
11 Richard II. c. 7, 473 n.
c. 11, 333 n.
17 Richard II. c. 6, 442 n.
c. 9, 405 n.
4 Henry IV. c. 5, 376 n.
c. 11, 404 n.
5 Henry IV. c. 10, 370
c. 14, 425 n.
1 Edward IV. c. 2, 364 n.
12 Edward IV. c. 7, 404
1 Richard III. c. 8, 415 n.
3 Henry VII. c. 1 (s. 11), 426
32 Henry VIII. c. 46, 248
1 Edward VI. c. 14, 481
c. 12 (s. 16), 253 n.
4 James I. c. 1 (s. 22), 475-6
3 Charles I. c. 1, 390, 442, 459
16 Charles I. c. 16, 501, 511
12 Charles II. c. 24, 67, 70, 72 n., 248, 387
13 Charles II. c. 8, 387, 392 n.
12 George III. c. 20, 400-1
54 George III. c. 145, 401 n.
57 George III. c. 61, 502
59 George III. c. 46, 421, 427
8 George IV. c. 28, 401
3 and 4 William IV. c. 27, 320 n.
c. 106 (s. 10), 401
5 and 6 William IV. c. 76 (s. 14), 473
14 and 15 Victoria, c. 42, 502
15 and 16 Victoria, c. 76, 434
33 and 34 Victoria, c. 14, 477
c. 23, 401
37 and 38 Victoria, c. 94, 70, 80
50 and 51 Victoria, c. 35, 360 n.

INDEX.

Abbeys, 505-7, 526.

Advowson, 325, 506. (See also _Presentment_.)

Agistors, 488.

Aids (feudal), 72, 80-2, 275, 276-7, 292, 301-6, 308.

Aids (general), 277-81.

Alexander II. (King of Scots), 252, 537, 541-3.

Aliens. (See _Foreigners_.)

Allegiance, 474, 477-8.

Amercements, 88, 141, 334-351, 530-3.

Anglo-Saxon period, 5, 7, 9.

Anselm, 21, 226, 239, 249.

Anson, Sir William R., 127 n., 292 n., 298 n.

Appeal (to a higher court), 10, 14.

Appeal (or accusation), 108, 160, 161, 371, 418, 425-7, 527-30.

Arbitrary imprisonment. (See _Imprisonment_.)

Aristotle, 6.

Arthur (John’s nephew), 219, 243, 516, 540 n.

Articles of the Barons, 39, 44-5, 143, 151, 171, 200-2, 223, 230, 232,
252, 277, 279, 292, 332, 350, 355, 363, 436, 438, 443, 444, 452,
524, 526, 531, 535-6, 549, 561;
text of, 570.

Ashford _v._ Thornton, 426-7.

Assize (different meanings of), 320 n.

Assize of Arms, 15.

Assize of Clarendon, 14, 74, 107, 160, 293 n., 397-8, 399, 431, 432,
436.

Assize of Measures, 371, 414-7.

Assize of Northampton, 107, 160, 243, 319 n., 324, 327 n., 370, 397.

Assize of Wine, 415-7.

Assize of Woodstock, 337 n., 483, 484, 487, 496, 497 n., 498, 499.

Assize (Grand), 109, 162, 321-3, 324, 325, 406, 407-8, 411, 412.

Assizes (Petty), 109, 111, 162-3, 176, 317-33, 407, 412.
(See also _Justice of Assize_.)

Attainder, 74, 401.

Bailiffs, 358, 372, 376, 385, 392, 393, 430, 431, 432 n., 435, 467,
502.

Barons, (legal position of), 103, 152, 229, 232, 236, 293, 295-7,
346-9, 474.

Barons (John’s and Henry’s)—
their motives, 59, 64, 139-140, 140 n., 143, 469-70, 534, 543-5;
their grievances, 58-112, 229, 262-3, 307, 492, 495, 503-4, 507;
their policy, 62, 82-3, 107, 111, 144, 148, 165, 173, 452;
their various factions, 220-1.

Barons’ War (against Henry III.), 147, 168, 471.

Barony, 76, 232, 235-6.
(See also _Honour_.)

Barrington (Hon. Daines), 209, 245 n., 256-7.

Bateson, Miss Mary, 68-9, 285 n.

Battle. (See _Trial by combat_.)

Becket (Thomas à), 15, 224, 225, 294.

Bémont, Charles, 207, 210-1, 565 n.

Bench. (See _King’s Bench_ and _Common Pleas_.)

Benefit of clergy. (See _Clergy_.)

Bigelow, M. M., 316 n., 408, 430 n., 438 n., 441 n.

Bishops, 366, 379, 382, 498, 515 n.;
as holders of baronies, 22, 76, 83, 238, 248, 294;
election of, 22, 23, 166, 226-7, 251-2;
Crown’s wardship over, 76, 117, 121, 224, 225, 249, 250, 506;
pay scutage, 87;
no relief, 238-9, 249.

Blackstone, Sir William, 47, 50 n., 53, 58, 65, 72 n., 78, 89, 130,
134, 169 n., 171, 175 n., 179 n., 182 n., 197, 198, 199, 201, 206,
209, 248 n., 259 n., 319 n., 328 n., 386 n., 403 n., 419, 437 n.,
448 n., 502, 551 n.

Blench tenure in Scotland, 69 n.

Bloodfeud, 334-5, 418.

Boroughs, 277-80, 284, 291, 376, 415, 468-9;
privileges of, 26, 284, 415, 468;
obligations of, 376.

Bot, 335.

Boutmy, Émile, 120.

Bouvines (Battle of), 37.

Bracton, 80 n., 244, 253, 259 n., 272, 345, 348, 383, 396 n., 399, 418
n., 422, 481 n., 527 n., 529.

Bréauté, Falkes de, 176, 521, 522.

Bridges, obligation to repair, 352-8.

Briwere, William, 181, 184.

Burgage tenure, 69-70, 76, 427-9.

Burgess, 136, 252.
(See also _Merchant_.)

Burke, Edmund, 156 n.

Canonical election, 22-3, 28, 39, 506. (See also _Bishops_.)

Capitulary of Kiersey, 73.

Carta de foresta. (See _Forest_.)

Cartae (of 1166), 15.

Castellans. (See _Constables_.)

Castles, private, 10, 176, 179, 258, 516, 523, 560.

Castles, royal, 176, 268-9, 390-1, 393.

Central government, problem of, 16-20.

Champions, in duel, 527;
king’s, 68.

Chancery, 16, 108, 401;
Court of, 312, 476-7.

Charter, John’s Great:
date when sealed, 48, 564 n.;
its prototypes, 113-23;
historical antecedents, 4-5, 7, 58-112, 123, 210-1;
historical sequel to, 164-93;
its form, 123-9, 182;
its contents and characteristics, 129-44;
how far a baronial manifesto, 133-9;
its value, 144-50;
its defects, 150-4, 186, 187, 413, 504, 554-61;
its traditional interpretations, 154-63, 437;
how far declaratory, 130-2, 364-5, 405;
its relations to Henry II.’s, reforms, 123, 130, 131-2, 318, 320-8,
363, 398, 439, 449;
how far reactionary, 132-3, 406, 409, 413, 449;
its practical nature, 144, 153 n., 437;
its attitude towards Church and clergy, 139, 222-7, 250, 474-7, 506;
towards boroughs and traders, 50, 140, 277-81, 284-91, 463-73;
towards tenants of mesne lords, 139-40, 301-6, 410-1, 478-81, 543-5;
towards lower classes, 133-5, 141, 508-9;
towards villeins, 133, 141-3;
its sanction, 137-8, 150-1, 152-3, 165, 187, 193, 547-61;
variations from Articles of Barons, 50, 139, 140, 151, 223, 252, 277,
279, 292, 332-3, 350, 363, 436, 512, 524, 526, 536-7;
exaggerated estimates of, 144, 146, 149, 155-7, 275, 292, 437;
manuscripts of, 194-200;
restored by Prince Louis, 194-200.
(See also _Table of Contents_.)

Charter, Henry III.’s first reissue (1216), 57, 165, 227, 382 n., 388,
392, 405, 432, 506;
its additions, 240-1, 250, 252, 258, 264, 290, 470, 506;
its omissions, 166-9, 270, 274, 351, 355, 385, 474, 500, 504, 508;
its respiting clause, 168-9, 172, 355 n., 508, 514;
on wardship, 240-1, 248, 250, 506;
on rights of Church and clergy, 250, 351, 474;
on marriage, 252;
on quarantine, 258;
on debtors, 264, 382 n.;
on Jews, 270, 274;
on aids and scutages, 276, 283, 301, 304, 305;
on merchants, 470.

Charter, Henry III.’s second reissue (1217), 142, 151, 388, 391, 392,
410 n., 514, 545;
its omissions, 151, 175, 382 n.;
its additions, 142, 172-179, 355-6, 391, 432-3, 444, 448, 480, 506,
545;
its reactionary side, 173-4, 177;
on widows’ rights, 255, 258, 382 n.;
on scutages, 172-3, 276, 283-4, 300;
on petty assizes, 326, 327, 327-8, 333;
on villeins, 343, 448, 449 n.;
on clergy, 351;
text of, 580.

Charter, Henry III.’s third reissue (1225), 168 n., 181, 183, 184, 228,
364, 410 n., 506 n., 508, 509;
its additions, 181-2, 228-9, 382 n.;
marks final form of Magna Carta, 183, 206;
its price, 182, 228-9.

Charter of Liberties of Henry I., 35, 58, 115-8, 219, 230, 239, 242-3,
336 n., 337, 385 n., 494, 544;
the model of Magna Carta, 35, 39, 58, 113, 123;
its tenor, 117-8, 242-3, 494;
on marriage, 253, 261;
on wardships, 242-3, 249, 250;
text of, 565.

Charter of Henry II., 121-2;
text of, 568.

Charter of Stephen, 77 n., 119, 120, 219, 385 n., 494 n.;
text of, 567.

Charter of Liberties (the so-called “unknown charter”). (See _Schedule
of Grievances_.)

Chase, 492.

Chatham, Lord, 133.

Chattels, 262-4, 271, 377, 385, 444 n.;
of felons’, 371, 384 n., 395-9;
of intestates, 166, 383-4, 385 n.

Church, (English), Henry II.’s struggle with, 15;
relations to State, 20, 23, 27, 226, 379;
relations to Rome, 20, 21, 27, 167 n., 227, 228 n., 474;
freedom of, 22-23, 50, 117, 120, 138, 166, 217, 222-5, 564-5;
national character of, 21, 224 n.;
question of investitures, 21-2;
canonical election (see _Bishops_);
influence of church on Charter, 50, 145, 223, 382-4, 474;
relations to Crown, 116, 220, 227, 474;
relations to John, 61, 62, 139;
relations to barons, 62;
relations to lower classes, 61-2;
its wealth, 178-9, 379.
(See also _Clergy_.)

Clergy, 167 n., 349-51, 417, 474;
Benefit of, 23, 121, 122, 138, 139, 224, 253 n., 515 n.

Cnut, 7, 17, 18, 484.

Coinage, private, 10.

Coke, Sir Edward (Chief Justice), 66, 70 n., 79 n., 133, 141, 156, 157,
183, 208, 211, 221, 236, 241 n., 246 n., 252 n., 256, 259, 329 n.
338 n., 345, 364 n., 370 n., 371 n., 396, 401, 406 n., 410 n., 442,
445, 447, 448, 463, 476, 530, 544;
his unhistorical method, 208, 447.

Combat. (See _Trial by combat_.)

_Comitatus_, 238 n., 317 n.
(See _Shire_, _Shire Court_, and also _Earldom_.)

Commissions of Justices, 329-331.

Committee of Executors. (See _Executors_.)

Common Law, 433 n.;
growth of, 15.

Common Pleas, 109, 111, 308-17;
Court of, 14, 109, 177, 311-5.

Commons (House of), 156 n., 191, 554.

_Commune Concilium_, 81, 82, 110, 124, 150, 166, 167, 173, 188, 190,
274-284, 291-301, 348, 450 n., 453, 557;
functions of, 151-2, 174, 192, 298-300, 557;
composition of, 293-8.

Commune, 138, 286-9, 553-4.

Commune of London. (See _London_.)

Compurgation, 103, 104, 432.

Confirmatio Cartarum, 85, 185, 281.

Constables, 269, 270, 358, 368-70, 387-8, 390-1, 456 n., 486 n., 502-5.

Constitutional development in England, 3, 60, 143-4, 173, 188, 192,
556.

Constitutions of Clarendon, 23, 225, 238 n., 248, 350 n., 474.

Contenement, 334, 339, 345-6, 347.

Conviction, 391-401, 415.

Coronation, 119, 218, 220;
oath, 114, 115, 116, 122, 131.

Coroner, 20, 358, 362, 370-2, 415 n.

Copyhold, 65.

Cotton, Sir Robert, 195, 196-7.

Council of St. Alban’s (1213), 34, 123, 365, 503.

Council of Oxford (1213), 36.

Councils, Lateran. (See _Lateran_.)

County, 18, 366, 368, 372-5, 431.
(See also _Firma Comitatus_.)

County Court, 13, 94, 99, 103, 177, 261, 319, 331-2;
to appoint twelve Knights to reform abuses, 51, 511, 513;
to appoint Knights for assizes, 327-8.

Courts, three rival systems of, 94-112.

Courts, Christian, 121, 379, 384-5.

Courts, local, 94, 99, 106.
(See also _County_ and _Hundred_.)

Courts, private, 60, 64, 95-7.

Courts, royal, 14, 93-112, 308-9, 319.
(See _Curia Regis_, _Chancery_, _Common Pleas_, _Exchequer_, _King’s
Bench_.)

Creasy, Sir Edward, 133-4, 212, 437 n., 446 n.

Creditors, 262-6, 271, 273-4, 316-7.
(See also _Jews_.)

Criminal Law, 107-8, 334-7, 360, 361-3, 398-401, 420-7, 446, 453-5.
(See also _Pleas of the Crown_.)

Crown: relation to feudatories, 10;
title to, 9, 113, 217, 219.
(See also _Pleas of the Crown_.)

Crusaders, 523-6, 535.

Curia Regis, 13, 14, 63, 71, 97, 106, 109, 115, 190, 191, 219, 220,
294, 309, 311, 451.

Customs, 445, 465, 468-9, 512, 543.

Cygony, Engelard de, 486 n., 503, 518-21.

Darrein presentment. (See _Presentment_.)

David I., King of Scots, 538.

Debtors, 262-6, 269, 271, 273-4, 316-7, 376-8.

_Dialogus de Scaccario_, 75, 136, 231 n., 232 n., 240, 263 n., 264 n.,
295 n., 303 n., 338 n., 384 n., 480 n.

Dicey (Prof. A. V.), 148.

Disparagement, 250-2, 541.

Disseisin, 142, 323, 324, 444, 448, 526.

Disseisin (novel), 317, 323-4, 326.

Domesday Book, 12.

“_Dominus_” (meaning of), 218.

Dower, 255-6, 260, 273-4, 531.

_Duellum._ (See _Trial by Combat_.)

Dunstan, 17, 20, 114, 116.

Dymoke (Family of), 68.

Ealdormen, 10, 17, 18.

Earldoms, Anglo-Saxon, 9;
Norman, 236-8.

Earls, 10, 18, 103, 152, 229, 232, 237, 293, 317 n., 346-9, 366, 474.

Earls Palatine, 9, 18, 78 n.

Edward Confessor, 7, 9, 18, 113;
his laws confirmed, 33, 39, 118, 130, 131, 145, 503.

Edward I., 85, 176, 271, 298, 307-8, 315, 356, 365 n., 366 n., 411,
412-3, 471, 510, 523, 543, 556-7;
his reforms, 186-193;
his attitude to the Charter, 186, 189, 412-3;
his attitude to the Church, 227;
his Parliaments, 189-192;
his _Inspeximus_ of the Charter, 198, 205, 206, 232 n., 352 n.

Edward II., 472, 501, 510.

Edward III., 281, 357, 389, 472, 475, 510.

Election; meaning of word, 328;
principle of, 25, 51, 176, 327-8;
of knights to reform abuses, 51, 511;
in relation to kingship, 219-220;
of jurors, 327-8.

England, growth of a united, 4, 6;
unification of, 7.

English church. (See _Church_.)

English law. (See _Law_.)

English monarchy. (See _Monarchy_.)

Escheat, 73-5, 179, 394-7, 478-81.

Estovers, 254, 258-9, 399, 496.

Exchequer, 11-12, 13, 14, 19, 63, 171, 172, 196, 262, 264, 311, 316 n.;
Court of, 311-2, 316-7.

Executive, two types of, 5.

Executors of Charter, 51, 53, 513, 525, 532, 534, 543-561.

Eyres. (See _Justices of Eyre_.)

Falconry. (See _Fowling_.)

Fee-farm, 67, 70, 427-9.

Felony, 73, 74, 371, 384 n., 394-401.

Feudal aids. (See _Aids_.)

Feudal anarchy, 7, 10, 13, 16, 60, 148, 409.

Feudal grievances, 58-112, 145, 409.

Feudalism in England, 8, 9, 10, 64-5, 66, 70, 409.

Feudal incidents, 72-80, 308.
(See also _Reliefs_, _Escheats_, _Wardships_, _Marriages_, _Primer
Seisins_, and _Fines for Alienations_.)

Feudal jurisdictions. (See under _Jurisdictions_ and under _Courts_.)

Feudal obligations, 64-93, 138-9, 166, 230, 308.
(See also _Services_, _Incidents_, and _Aids_.)

Feudal services, 15, 64, 65, 71, 82-6, 234, 306-8.

Feudal tenures. (See _Tenures_.)

Fictions (legal), 81, 317 n., 412-3.

Fines, 90-1, 245, 261, 307, 337, 461, 493, 498, 530-3;
differ from amercements, 337, 344-5.

Fines for alienations, 79-80.

_Firma burgi_, 284, 285, 376, 519.

_Firma comitatus_, 166, 372-6, 519.

Fishing, 357-8, 403-4.

Fitz Aylwin, Henry, 41.

Fitz Peter, Geoffrey, 36.

Fitz Walter, Robert, 30, 31, 41, 446, 507 n., 517, 551.

Flambard, Ralph, 10, 71, 234, 238, 239, 242, 249.

Foreigners, 140, 145, 290-1, 440, 465-73, 474.

Foreign service, 85-6, 154, 307-8.

Forest Charters, 53, 171, 175, 181, 184, 185, 337 n., 356, 485, 487,
495, 496, 497 n., 499, 501.

Forest Courts, 482, 489-92, 497-8.

Foresters, 34, 485-9, 497, 499-501, 502 n., 503, 508-9.

Forests, 166, 368, 482-502, 507-14, 526;
protests by prelates anent, 52;
boundaries of, 184, 185, 507-11.

Fowling, King’s rights of, 353-8, 507-8.

Frankalmoin, 67, 70, 307, 350.

Freedom, problem of, 4-5.

Freehold, 65-71, 445.

Freeman, Prof., 71, 86, 87, 114, 115 n., 219, 234.

Freeman, defined, 135-7, 228-9, 338 n., 352 n., 448;
rights of, 334, 338-40, 392, 405, 436, 440.

Free socage. (See _Socage_.)

Fyrd, 15, 352.

Glanvill, 74, 80, 230 n., 233 n., 344 n., 345, 383, 395-6, 406, 408 n.,
428 n., 429 n., 441 n., 504, 528, 529.

Gneist, Dr. Rudolf, 129-130, 134, 145 n., 212, 442 n., 450, 557-8.

Godwin, 18.

Government. (See _Local government_.)

Grand Assize. (See _Assize_.)

Grand Jury. (See _Jury_.)

Great Charter. (See _Charter_.)

Great Serjeanties. (See _Serjeanties_.)

Green, John Richard, 26, 134.

Grey, John de, 28.

Gross, Dr. Charles, 362 n.

Gualo (papal legate), 56, 57, 164, 170, 171.

Guardian, 259.
(See also _Wardship_)

Guilds, 466, 470, 473.

Habeas corpus. (See _Writ of_.)

Hall, Hubert, 85 n., 173 n., 203-4, 464-5 n.

Hallam, Henry, 78, 134, 135, 243, 328, 364, 389, 437 n., 458, 460, 532.

Hardell (William), Mayor of London, 289 n., 551.

Harold, King, 9.

Hawking. (See _Fowling_.)

Henry I., 7, 11-12, 19, 21, 116, 117, 219, 230, 242, 243, 494;
his achievements, 10-12;
relations to church, 21, 22, 224, 226, 239;
scutage under, 87;
charter to Jews, 269;
charter to London, 285-6;
Charter of liberties.
(See _Charter_.)

Henry II., 7, 13-16, 249, 294, 295, 313, 384 n., 478, 494, 497, 538;
achievements of, 13-15, 59, 158;
institutes new system of procedure, 14, 107-112, 319, 325, 361, 407;
his policy, 106-7, 366-7, 466;
invents writ process, 108, 406-9;
opposes the hereditary principle, 19;
discourages trial by combat, 108, 161, 162, 320-2, 419-20;
attacks the private jurisdictions, 106, 322 n., 406-9, 432, 455;
relations to church, 22-3, 122, 224, 225, 249;
takes aids, 81;
his levy of scutage, 81, 86, 87, 88, 172;
lays foundations of trial by jury, 158-163;
Charter to London, 286;
opens royal courts to all freeholders, 14, 93-4, 97-8, 106, 411, 460.
(See also _Charter_.)

Henry III., 147, 164, 168, 271, 305, 314, 358, 384 n., 452, 461, 471,
474, 507, 509-10, 556;
his advisers accept the Charter, 57, 187;
takes aids, 81;
takes scutages, 174-5, 304;
his attitude to Magna Carta, 164, 181, 183, 184, 185, 186-7, 471,
507, 509;
his alliance with Rome, 167 n., 227, 228, 384 n.;
declared of age, 180, 183.
(See also under _Charter_.)

Honorius III., 180, 181.

Honours, 10, 71, 232, 235-6;
Courts of, 10.

Hostages, 30, 514-8, 536, 541, 560.

Hoveden, Roger of, 9, 415, 416.

House of Commons. (See _Commons_.)

House of Lords. (See _Lords_.)

Hubert de Burgh, 44, 51, 57, 170, 180, 182 n., 183, 290, 542 n., 559.

Hubert, Walter (Archbishop), 25, 27, 132, 361, 380 n., 404, 411 n.

Hundred, 94, 96, 372-4, 431;
court of, 13, 94, 99, 159.

Imprisonment (arbitrary), 156, 457-9.

Incidents. (See _Feudal incidents_.)

Indictment, 108, 160, 364, 398-9, 431, 436.

Innocent III., 28, 31, 40, 42, 53, 54, 55, 56, 57, 61, 62, 85, 182,
222, 516, 541, 561.

Innocent IV., 227.

Inquest of Service (1212), 29, 89-90, 91-2, 172.

Inquest of Sheriffs. (See _Sheriffs_.)

_Inquisitio_, principle of. (See _Recognitio_.)

Interest, 265-6, 310. (See also _Jews_ and _Usury_.)

Interregnum, 116.

Investitures (struggle of), 21-2.

James I., 72 n., 387, 394, 475.

Jarls (Danish), 18.

Jews, 166, 171, 175, 256, 262-74, 305, 310, 384 n., 435, 439-40.

Joan (John’s natural daughter), 29, 30.

John; his title to Crown, 217-220;
his excessive exactions, 26-7;
his levies of scutage, 86-93;
his charters to English Church, 39, 41, 63, 77, 139, 226, 227, 249;
to London, 41, 288-9, 404, 470;
to Jews, 269;
meets barons at Runnymede, 43, 46;
takes Crusader’s vow, 40;
his relations with national Church, 39, 44, 61, 62, 249;
with Rome, 28-9, 36, 61, 62, 63, 91;
his surrender to Innocent, 31-2, 36;
asks Innocent to annul charter, 53, 182;
his treatment of Welsh hostages, 30, 514-8;
his death, 57.
(See also _Charter_.)

Judges (King’s), 108, 109, 225, 358, 416, 502-5.

Judgment (in medieval law), 101, 103-5.

Judgment of peers. (See _Peers_).

Jurisdiction, royal, 14, 93-112, 169 n., 309.
(See also _Courts_.)

Jurisdictions, private, 10, 14-15, 93-112, 169 n., 406-9.
(See also _Courts_.)

Jury, trial by, 25, 456-7;
relation to _recognitio_, 106, 159;
relation to writ _de odio_, 108, 161, 420-1;
relation to Magna Carta, 158-163, 419-21.

Jury (of accusation or presenting jury), 158, 159-160, 431.

Jury (civil), 158, 161-3.

Jury (grand), 158, 160.

Jury (petty), 158, 161, 420-1, 457.

Justice, three systems of, 93-9, 313, 328, 360 n.
(See also _Courts_ and _Jurisdictions_.)

Justices (King’s). (See _Judges_.)

Justices of the Peace, 20, 331, 367.

Justices, itinerant (or of Eyre), 12, 13, 19, 20, 318-9, 329, 361.

Justices of Assize, 176, 177, 318, 319-20, 329-331, 332;
commissions of, 329-331.

Kiersey, capitulary of, 73.

King’s Bench, 14, 109, 311-2, 313, 314-5, 348.

Knight’s fee, 83, 92, 233, 277 n., 306.

Knight’s service, 66, 67, 68, 70, 71, 233, 427-8.

Kydells. (See _Weirs_.)

Lanfranc, 21, 116.

Lateran Council (1099), 21.

Lateran Council (1215), 55, 161, 399, 432.

Law (English), development of, 14.

Law (_lex_), technical meaning of, 102, 161, 430, 440-1.
(See also _Trial_.)

Leasehold, 65-6.

Legal fictions. (See _Fictions_.)

Legal procedure. (See _Procedure_.)

Leofric, 18.

Letters testimonial, 50;
text of, 563 n.

Littleton, 66, 68, 69, 70 n., 233 n., 252, 428.

Llywelyn, 29, 536.

Local Government (problem of), 16-20.

London, 42, 56, 57, 119, 140, 270, 274-5, 284-91, 340, 404-5, 467,
470-3;
City and Tower granted by John in security, 51, 560;
taxation of, 274-5, 277-81;
John’s charters to, 41, 288-9, 404, 470.

Longchamp, 63.

Lords (House of), 237, 455-6.

Louis (son of King Philip of France), 56, 165, 170.

Macy, Prof. Jesse, 127 n.

Magna Carta. (See _Charter_.)

Maitland, Prof. F. W., 95 n., 98 n., 128 n, 144 n., 153 n., 207, 362
n., 456.

Manors, 10, 71, 141, 342, 352 n., 393;
on royal demesne, 372, 376.

Manorial courts, 10, 93, 96, 106.
(See also _Courts_ and _Jurisdictions_.)

Marriage, feudal incident of, 66, 68, 69, 77-8, 250-3, 260-1.

Maritagium, 254-7, 531.

Marshal (William, earl Marshal), 39, 44, 215, 216, 507, 559;
a mediator between King and barons, 39, 40, 43, 559;
acts as Regent, 164, 165, 170, 171, 180, 184, 201, 299.

Matilda (daughter of Henry I.), 12-13, 118, 162.

Mayor of London, 288, 289, 290, 551.

Medley (Prof. D. J.), 295 n., 296, 327 n., 564 n.

Mercenaries, 15, 30, 39, 165, 166, 261, 391, 522-3.

Merchants, 61, 63, 140, 145, 334, 340-1, 402, 415, 416, 440, 463-73,
474.

Ministerial responsibility, 25, 150, 188, 192, 298, 505.

Minorities (Rights of), 299-300.

Mirror of Justices, 207, 357 n., 431 n., 434.

Monarchy, two types of, 5.

Monarchy (English), 60, 409;
growth of, 4, 6, 12, 13, 15, 18, 20;
strength of, 7, 12, 15, 16, 24, 59;
weakness of, under Anglo-Saxons, 16, 20;
functions of, 94, 97.

Monopolies, 140, 156, 445-6, 469, 470-5.

Montfort (Simon de), 188, 189.

Moore, Stuart A. and H. S., 358, 403 n.

Mort d’ancestor, 317, 324, 333 n., 426.

Municipalities. (See _Boroughs_.)

Nationality (conception of), 149, 156.

National unity in England, growth of, 6, 149;
forces opposed to, 7.

Neilson, George, 321 n., 527 n., 528 n.

Nicholas (Papal legate), 36, 227, 365.

Norgate, Miss Kate, 36, 49 n., 50 n., 58 n., 90 n., 92 n., 212, 288,
374 n., 559.

Norman Conquest, 5, 9, 20, 71, 105, 115, 158, 321, 366, 484.

Norman period and rule, characteristics of 5, 7.

Novel disseisin. (See _Disseisin_.)

Oligarchic elements in England, 5.

Ordeal, 74, 102, 103, 104, 161, 399, 415, 430-3, 528-9.

Original writs. (See _Writs_.)

Outlaws, 74, 446, 473-4.

Parliament, 150, 173, 185-6, 188, 190, 294, 557;
rights of, 81;
functions of, 174, 190-1, 298;
composition of, 190.

Parliamentary taxation. (See _Taxation_.)

Parliamentary Representation. (See _Representation_.)

Palatine earldoms. (See _Earls_.)

Pandulf (Papal legate), 31, 54, 561.

Papal Bull, annulling Charter, 55.

Papal _Curia_, 28.

Papal interference in England, 21, 28, 32, 54, 56, 182, 227.

Papal legates. (See _Gualo_, _Nicholas_, _Pandulf_.)

Paris, Matthew, 32, 53, 58, 181, 293 n., 300-1, 453, 543 n., 550, 559,
561 n.

Parks, 247, 492.

Peasantry. (See _Villeins_.)

Peers, 103, 152, 216 n., 346-9.

Peers (Judgment of), 158 n., 346, 436, 438-40, 449-50 n. , 452-6, 523.

Peter des Roches (Bishop of Winchester), 36-7, 51, 54, 58, 180, 183,
215, 300, 452, 503.

Peter of Wakefield, 30.

Petition of Barons (1258), 232 n., 252, 333 n., 430, 481, 507.

Petty Assize. (See _Assize_.)

Petty Jury. (See _Jury_.)

Petty Serjeanty. (See _Serjeanty_.)

Philip (King of France), 31, 33, 37, 56, 470.

Pike, L. O., 152 n., 295 n., 313, 347, 348 n., 442 n., 444 n., 449-50
n., 456, 457 n.

Pipe Rolls, 11.

Pleas. (See _Common pleas_.)

Pleas of the Crown, 107, 109, 111, 112, 310, 314-5, 359-363, 370-1,
398;
in Scots law, 360.

Pleas of the forest, 368.

Pollock, Sir Frederic, 310.

Pope, 61, 79 n., 164, 167 n., 227.
(See _Papal_, also _Honorius_ and _Innocent_.)

Presentment (darrein), 176-7, 225, 317, 325, 326, 333.

Primer seisin, 78-9, 248, 254.

Privy Council, 191.

Procedure (legal), 14, 99-112;
Henry II.’s reforms, 14, 106-112.

Proof (in medieval law), 102-3;
(See also _Trial_.)

Protests by the prelates in John’s favour, 52, 560-1;
text of, 579.

Prothero, G. W., 85 n., 117 n., 125 n., 131-2, 139-140, 149 n., 154 n.,
175 n., 203, 212 n., 228 n., 448.

Provisions of Oxford (1258), 187, 504.

Purprestures, 495.

Purveyance, 142, 369, 386-90, 392-4.

Quarantine (Widow’s), 258.

Queen’s gold, 232.

Ramsay, Sir James, 92 n., 212, 225 n., 243 n., 375 n., 394 n.

_Recognitio_ (principle of), 34, 105-6, 159, 160, 162, 323, 325, 512.

Reeves, John, 209-210, 257, 340 n., 447 n., 450.

Regarders, 484, 490, 491.

Regency, 164, 169.

Relief (feudal incident of), 68, 69, 73, 117, 179, 239-241, 249, 276
n.;
not due from bishop-elect, 117, 238-9;
not due after wardship, 239;
definition of sums due, 230-3.

Representation, principle of, 25, 34, 36, 160, 190, 192, 297-8;
parliamentary, 292, 297-8.

Responsibility. (See _Ministerial_.)

Restoration (The), 66, 67, 248, 387, 502.

Richard I., 24-6, 63, 81, 89, 148, 231, 286, 539;
lessons of his reign, 25-6.

Richard II., 473.

Roches (Peter des). (See _Peter_.)

Roger, bishop of Salisbury, 11, 119.

Roger of Hoveden. (See _Hoveden_.)

Roger of Wendover. (See _Wendover_.)

Rolls. (See _Pipe Rolls_.)

Rome. (See _Pope_ and _Papal_.)

Round, John Horace, 71, 85 n., 87, 88, 92, 95 n., 119, 121 n., 202-3,
225 n., 234, 285-7, 324 n.

Royal justice. (See _Courts_ and _Jurisdiction_.)

Royal writs. (See _Writs_.)

Runnymede, 43-5, 53, 64.

Salisbury, Roger, bishop of. (See _Roger_.)

Salisbury Plain, oath of homage sworn on, 10.

Schedule of grievances (27 April, 1215), 40, 44-5, 84 n., 202-5, 245,
246, 258 n., 307 n.;
text of, 569.

Scotland, 30;
relations to England, 537-43;
land tenures in, 67, 69 n., 70, 72 n., 80;
kings of (see _Alexander_, _David_, and _William_);
Princesses Margaret and Isabel of, 537, 539-42.

Scutage, 15, 29, 37, 64, 84 n., 86-93, 172-3, 274-6, 294, 302, 304,
308;
grand serjeanties not liable for, 68;
in charter of 1215, 274-6, 292;
in charter of 1217, 172-3;
by sub-tenants, 302.

_Scutum._ (See _Knight’s fee_.)

Seal (king’s great), 169, 180, 181, 184.

Seebohm, Frederic, 95 n., 341.

Seisin, 323.
(See also _Primer Seisin_ and _Disseisin_.)

Serjeanty (grand), 67-8, 70, 78 n., 233, 307.

Serjeanty (petty), 68-9, 70, 78 n., 233, 307, 427, 429.

Service. (See under _Feudal service_, _Foreign service_, and _Knight’s
service_.)

Sheriff, 10, 11, 12, 13, 18-19, 34, 42, 47, 50, 51, 177, 244, 364,
366-8, 372, 376, 392, 398, 399, 431, 502-5, 511, 513;
chief magistrate of county, 18, 366;
his powers, 364, 366-7, 376, 399;
his gradual decline, 20, 367;
his tyrannies, 20, 359, 366 n., 373-5, 377;
his “tourn,” 97, 177, 360, 364;
his “aid,” 261;
not to hold pleas of Crown, 358-72;
in Scotland and in America, 367-8.

Sheriffs (inquest of), 19.

Shire. (See _County_.)

Socage, 66-7, 69, 70, 76, 81, 233, 307, 427-9.

Statutes. (See separate _Index to Statutes_.)

Stephen (King), 12-13, 19, 118-9, 162, 219, 243;
relations to Church, 22, 77 n., 119, 224;
his title, 119-120, 219.
(See also _Charters of_.)

Stephen Langton, 28, 31, 32, 33, 34, 35, 38, 43, 52, 62, 122, 139, 145,
181, 223, 226, 227, 249, 451, 506, 532,542 n., 551;
a mediator between king and barons, 39, 40, 50, 52, 54, 513, 524-5,
531, 542 n., 560, 562;
influence on substance of Great Charter, 50, 506.

Stubbs, Bishop, 43, 54, 86, 87, 117, 118, 125, 134, 140 n., 143 n.,
149, 165 n., 169 n., 170 n., 179 n., 182 n., 184 n., 206, 211, 220
n., 247 n., 257 n., 259, 284-5, 296, 299 n., 351 n., 365 n., 391 n.,
430 n., 453 n., 483, 491, 493, 503, 532, 544, 559.

Succession, intestate, 166, 175, 382-5;
testate, 376-82.

Suit and service, 72, 82-6.

Suit, at county and hundred courts, 94, 177, 261, 332;
at forest courts, 482, 497-8;
at lord’s court, 72, 82.

Suit (or forewitnesses), 101-2, 433-4.

Swanimotes, 491.

Synod of Whitby, 7.

Tallage, 140, 142, 270, 272, 277-81, 376.

Taxation, 20, 26-7, 152, 165, 166, 185, 196, 274-284;
heavy under Richard, 24-5, 148, 288;
common Council’s rights over, 152, 174, 185, 274-284, 298;
parliamentary, 281, 281-4.

Taylor, Dr. Hannis, 130, 140, 159 n., 212, 296.

Tenant, 65.

Tenement, 65, 345.

Tenure by barony, 66.

Tenure by castle-ward, 70 n.

Tenure in chivalry. (See _Knight’s service_.)

Tenures, 95-71.
(See also _Burgage_, _Fee-farm_, _Frankalmoin_, _Knight’s service_,
_Serjeanty_, _Socage_, _Villeinage_, also under _Freehold_.)

Thayer, Prof. J. B., 159 n., 430 n., 433 n., 441 n.

Thomson, Richard, 210, 211.

Tourn. (See _Sheriff’s tourn_.)

Traders. (See _Merchants_.)

Treason, 74, 395-7.

Trial (in medieval law), 101, 102-5, 161, 399, 417, 430.

Trial by combat, 103, 105, 108, 109, 161, 162, 320-1, 323, 325, 406,
417-420, 425-7, 433, 527-30.

Trial by jury. (See _Jury_.)

Turner, G. J., 184 n., 484 n., 509 n.

“Unknown Charter of Liberties.” (See _Schedule of Grievances_.)

Usury, 262, 265-6, 270, 272, 384 n.
(See also _Jews_.)

Verderers, 368, 487.

Vesci, Richard de, 30, 31, 40, 446, 517, 551.

_Vicecomes._ (See _Sheriff_.)

Villeinage, 66, 342, 449.

Villeins, 93, 94-5, 106, 136, 141-3, 143 n., 145, 245, 252, 278, 334,
338 n., 341-4, 393, 410 n., 448, 449 n.;
legal status of, 341-3.

Vinogradoff, Prof. Paul, 344 n.

Wales, 29, 30, 533-7.

Wapentake, 94, 160, 372-4.

War, right of private, 10.

Warden, 485-6.
(See _Constable_, also _Guardian_.)

Wardship, ordinary, 67, 68, 69, 75-7, 78, 117, 142, 179, 239-250, 259,
265, 427-8, 461 n., 526;
over vacant sees, 117, 224, 225, 239, 505-7;
prerogative, 428-30, 526.

Warrens, 247 n., 492-3, 511.

Waste of ward’s lands, 244-6, 250;
of felon’s lands, 394-7;
in forests, 495, 496-7.

Watling Street, 7.

Weirs, 357, 402-5.

Welshmen, 30, 440, 533-7.

Wendover (Roger of), 30, 35, 38, 43, 53, 123, 204, 205, 355 n., 550 n.,
561 n.

Wer, 335, 336, 340.

Wessex, supremacy of, 7, 17;
royal House of, 16, 113.

Westminster, 12, 111, 177, 310, 314, 316, 326, 333.

Whitby, Synod of, 7.

Widow’s rights, 243, 253-261, 273-4, 380, 384, 527.

Wills, 376-82.

William I., 7, 8-10, 12, 16, 21, 71, 83, 106, 115, 116, 191, 234, 507,
514;
difficulties and policy of, 8-10, 65;
local government under, 16, 18-19;
relations to Rome, 21-2;
his innovations, 105-6;
his title to English Crown, 9, 115.

William II., 10-11, 21, 71, 116, 239, 242, 249;
his relations to the church, 21, 238-9, 249.

William the Lion, King of Scots, 252, 538-41.

Witenagemot, 9, 18, 114, 219, 294.

Wites, 335, 336, 337 n.

Witnesses, 102.

Writ _de odio et atia_, 108, 161, 417-25.

Writ _praecipe_, 108-9, 405-13.

Writ of _habeas corpus_, 156, 421-2.

Writ _ne exeat regno_, 476-7.

Writs (royal), 14, 406, 417, 460.

Writ process, 14, 108, 406-9.

1905

UNIVERSITY PRESS

ROBERT MACLEHOSE MA
JAMES J MACLEHOSE MA

GLASGOW

------------------------------------------------------------------------

Transcriber’s Note

The entry for ‘3 Edward I. c. 41’ refers to ‘520 n.’ which appears in
‘527 n.’

The entry for ‘5 Henry IV. c. 14’ in the index of Statutes refers to
‘425 n.’ That note refers to ‘1 Henry IV. c. 14’, which is most likely
correct. One summary of that Statute says that it “abolished appeals of
treason in parliament, and sent the accuser to established courts of
law.” (Lolme, _The Constitution of England_, 1839, p. 137.)

Coincidentally, a reference in the index entry for ‘Constables’ refers
to ‘456 n.’ No note on that page mentions that topic. However, the
‘Court of the Constable and Marshal’ _is_ mentioned in the same ‘425
n.’, which is not indexed to that topic. We suggest that the reference
to 425 n. was intended.

Lapses in the punctuation of index and footnote entries have been
regularized with no further mention.

Other errors deemed most likely to be the printer’s have been corrected,
and are noted here. The references are to the page and line in the
original. Those with a third number refer to the line within a footnote
beginning on that page.

65.37 copyhold and leasehold[.] Restored.
83.118.4 go with the King an[d] serve him Restored.
149.23 whether conscious or uncon[s]cious Inserted.
219.328.1 a prisoner in Corfe Castle[.[ Added.
307.31 to those of Charles II[.] Added.
323.37 twelve local gentlem[e/a]n Replaced.
367.20 for each county by p[r]icking at random Removed.
386.3 he can have postpon[e]ment Inserted.
422.762.1 _En[t]stehung der S[ch]wurgerichte_ Inserted.
425.14 I[n/t] was unfair that he should be Replaced.
435.793.1 _En[t]stehung der Schwurgerichte_ Inserted.
440.809.1 See _Placitorum Abbrev[i]atio_ Inserted.
483.33 these high[ ]places of royal prerogative Inserted.
488.914.3 to speak of "agisting a wood,[”] Added.
490.35 exercised functions anal[a/o]gous to those Replaced.
537.11 to be otherwise acc[c]ording Removed.
540.1052.4 virtually her fellow-[p]risoners Restored.
547.41 the said five-and[-]twenty barons Restored.
577.37 manu nostra saisita[ saisita] fuerint Removed.
588.33 sumagio aliquod chim[u/i]nagium capiatur Replaced.
588.38 detur chiminagium for[i/e]stariis nostris Replaced.
601.18 influence o[n/f] church on Charter Replaced.

*** End of this LibraryBlog Digital Book "Magna Carta: A Commentary on the Great Charter of King John - With an Historical Introduction" ***

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