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

The difficulties that surrounded the English nation in its early struggles for existence were formidable. 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 to the achievement of this result. The coercion of strong tribes over weaker neighbours, the pressure of outside foes, the growth of a body of law, and of public opinion, the influence of religion as the friend of peace, all helped to weld together a chaos of incongruous and warring elements.

It is notable that each of the three influences, destined ultimately to aid in this process of unification, threatened at one time a contrary effect. Thus the rivalries of the smaller kingdoms tended towards disruption before Wessex gained 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 mutual rivalries were stilled after the Synod of Whitby in 664; and one effect of the settlements of the Danes was to create a barrier between the lands that lay on either side of Watling Street, before the whole country succumbed to the unifying pressure of Canute 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 the iron rule of the Normans came to complete what the Danes had begun half a century before. As the weakness of the Anglo–Saxon kings and the disruption of the country had gone hand in hand; so the complete unification of England was the result of the Norman despotism.

Thereafter, it was the strength of its monarchy that rendered England unique in medieval Europe. Three kings in particular contributed to this result—William the Conqueror, Henry Beauclerk, and Henry Plantagenet. In a sense, the work of all three was the same; to build up the central authority against the disintegrating effects of feudal anarchy. But the policy of each was modified by changing times and needs. The foundations of the edifice 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 secured a successful issue, are best understood in relation to the nature of the obstacles to be overcome. 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 or 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 endangered by this feudal current. In England alone the monarchy stood firm. William I. refrained from any attempt to stay the torrent; but, while accepting it, he made it serve his own purposes. He watched and modified the tendencies making for feudalism, which he found in England, and he profoundly altered the feudal usages and rights transplanted from 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 Anglo–Saxon against Norman elements, and of selecting what suited him in either. He encouraged the adoption in England of feudalism, considered as a system of land tenure and of social distinctions based on the possession of land; but he successfully checked the evils of its unrestrained growth as a system of local government and jurisdiction.

William’s policy was one of balancing. Not content to depend entirely on the right of conquest, he insisted on having his title confirmed by a body claiming to represent the Witenagemot, and alleged that he had been named successor by his kinsman, Edward Confessor, a nomination strengthened by the renunciation of Harold in his favour. Thus, to Norman followers claiming to have set him by force of arms on his throne, William might point to the election by the Witan, while for his English subjects, claiming to have elected him, the presence of foreign troops was an effective argument. Throughout his reign, he played off the old English laws and institutions against the new Norman ones, with himself as umpire over all. He retained, too, the 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 whatever incidents of the Anglo–Saxon land tenures he thought fit.

Thus the Norman feudal superstructure was built on a basis of Anglo–Saxon usage and tradition. 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 a different basis. Even the great officers subsequently known as Earls Palatine, always few in number, never attained 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, ousted from all real power by the Norman vicecomites or sheriffs. No English earl was a “Count” in the continental sense of a real ruler of a “County.” No earl was allowed to hold too large an estate within his titular shire.

Ingenious devices were used for checking the feudal excesses so prevalent on the Continent. Rights of private war, coinage, and castle–building, were jealously 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; the higher courts of Honours were exceptional. No 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. The results of this policy have been aptly 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. Minor details of feudal organization were doubtless settled 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 reckoned a time of comparative rest between two periods of advance.

Henry I. (1100–35) took up, with far–seeing statesmanship and much vigour, the work of consolidation. His policy shows an advance upon that of his father. William had been content to curb the main vices of feudalism. Henry introduced within the Curia Regis itself a new class of men, representing a new principle of government. The great offices of state, previously filled by holders of baronies, were now given to 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. Henry’s other great achievement was the organization of the Exchequer, as a source of royal revenue, and as an instrument for 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 minister 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. 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 high and low. 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 compared and checked. 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 Exchequer was supplemented by occasional inspections conducted in each county. The King’s representatives, including among them the officers who presided over the half–yearly audit, visited, at intervals still irregular, the various shires. These Eyres, as they were called, were at first undertaken chiefly for financial purposes. The sheriffs’ accounts rendered at Westminster were checked locally on the scene of their labours. These investigations necessarily involved the trial of pleas. Complaints of oppression at the hands of the local tyrant were 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, before his death in 1135, seemed to have carried to completion the congenial task of building a strong monarchy on the foundations laid by William. 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. His daughter’s claims were set aside by Stephen, 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. Stephen proved unequal to the task of preserving the monarchy intact from the forces that beat around the throne. His failure is attributed by some to personal characteristics; 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: England was almost torn in fragments by the claims of rival 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 him 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 institution and every branch of administration. The permanent Curia Regis was not only restored to working order, but improved in each of its many aspects—as the King’s household, as a financial bureau, as the administrative centre of the kingdom, and as the vehicle of royal justice. The Exchequer, which was 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. The Pipe Rolls were revived and financial reforms effected. The old popular courts of hundred and county, and the feudal jurisdictions were brought under more effective control of the central government by the restoration of the system of Eyres with their travelling justices, whose visits were now placed on a more systematic basis. Equally important were the King’s care in the selection of fit men for the duties of Sheriff, the frequent punishment and removal from office of offenders, and the restored control over all in authority. Henry was strong enough to employ more substantial men than the novi homines of his grandfather without suffering them to get out of hand. 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, that formed as yet merely committees of the Curia as a whole.

Closely connected with these innovations 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, and the system came to be known as “the writ system.” 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 allcomers (excepting villeins), 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 manorial courts to his own. The same policy had a further result in facilitating the growth of a body of common law, uniform throughout the length and breadth of England, opposed to the varying usages of localities and individual baronial courts.

The reorganization of the army was another reform that helped to strengthen the throne of Henry and his sons. This was effected in various ways: partly by the revival and more strict enforcement of obligations connected with the Anglo–Saxon fyrd, under the Assize of Arms (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 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 and 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 struggle with Becket, ending as it did in Henry’s personal humiliation, nor the unnatural warfare with his sons, which hastened his death in 1189, was allowed to interfere with his projects of reform in England.

The last twenty years of 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 1174 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 retrace our steps in order to consider the subsidiary problem of local government. 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 different names as Home Rule, Local Government, or Federation. Problems as to the proper nature of the local authority, the extent of its powers, and its relation to the central government, require constantly to be re–stated and solved anew. The difficulties involved, always great, were unspeakably greater in an age when no proper administrative machinery existed, and when rapid communication and serviceable roads were unknown. Lively sympathy is excited by consideration of the difficulties that beset the path of King Edgar or King Ethelred, endeavouring to rule from Winchester the distant and alien races of North–umbria, Mercia, and East Anglia. If a weakling governed a distant province, anarchy would result and the King’s authority might suffer with that of his inefficient representative; while a powerful viceroy might consolidate his own authority and then defy his King. The two horns of this dilemma are amply illustrated by the course of early English history. The West–Saxon Princes vacillated between two lines of policy: spasmodic attempts at centralization alternated with periods of local autonomy. The scheme of Edgar and Dunstan 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. Their solution was to relax rather than tighten the bond; to entrust with wide powers the local viceroy in each district, and to aim at a loose federal empire—a union of hearts, rather than a centralized despotism founded on coercion. The dangers of such a system are obvious, where each ealdorman commanded the troops of his province.

Canute’s consolidating policy has been the subject of much discussion, and has sometimes been misunderstood. The better opinion is that, with his Danish troops behind him, he felt strong enough to reverse Dunstan’s tactics by decisive action in the direction of centralization. His provincial viceroys (jarls or earls, as they were now called) were appointed on a new basis: England was mapped out into new administrative districts under viceroys having no hereditary connection with the provinces they governed. In this way Canute sought to arrest the process by which England was breaking up into a number of petty kingdoms. If these viceroys were a source of strength to the powerful Canute, they proved 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 among the Witan. The process of disintegration continued until the coming of the Conqueror changed the relations between the monarchy and the other factors in the national life.

Among the expedients adopted by the Norman Duke for curbing his feudatories in England, one of the most important was the reorganization of the system of provincial rulers. The real representative of the King in each group of counties was now the sheriff, not the earl. His Latin name of vicecomes is misleading, since that officer 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.

The problem of local government, however, was not eradicated: it only took a different form. The sheriffs themselves, relieved from the earl’s rivalry, tended to become too powerful. If they never dreamed of openly defying the royal authority, they thwarted its exercise, appropriated to their private uses items of revenue, pushed their own interests, and punished their own enemies, while acting in the King’s name. The office threatened to become territorial and hereditary,1 and its holders aimed at independence. Safeguards were found against the sheriffs’ growing powers, partly in the organization of the Exchequer and partly in the itinerant justices, who took precedence of the sheriff and heard complaints against his misdeeds in his own county. By such measures, Henry I. seemed almost to have solved these problems before his death; but his success was apparent rather than real.

The incompleteness of Henry’s solution 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.

With the accession of Henry II. some advance was made towards a permanent solution. 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 matter of routine. Their power 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 might defy the Crown was thus ended. Yet each of them remained a petty tyrant over the inhabitants of his own bailiwick. While the Crown was able and willing to avenge neglect of its own interests, it was not always sufficiently alert to punish wrongs inflicted upon its humble subjects. The problem of local government, then, was fast taking a new form, namely, how best to protect the weak from unjust fines and oppressions inflicted on them by local magistrates. The sheriff’s local power was no longer a source of danger 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 Church had been, from an early date, in tacit alliance with the Crown. The friendly aid of a 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 were at first merely two aspects of one society, which comprehended all classes of the people. Change came with the Norman Conquest; for 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 that bound the prelates to the English throne remained intact, while English Churchmen continued to look to Canterbury, rather than to Rome, for guidance.

Gratitude to the Pope for moral support in effecting 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 prior 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. Friendly relations between King and Archbishop continued, notwithstanding Anselm’s condemnation of the evil deeds of Rufus. Anselm 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 unfair exactions from 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, Anselm found himself compelled, by his conscience and the recent decrees of a Lateran Council, to enter on the great struggle of the investitures.

In many respects, the spiritual and temporal powers were still indissolubly locked together. Each 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? Anselm adopted one view; Henry the other. A happy compromise, suggested by the King’s statesmanship, or possibly by Bishop Ivo of Chartres,1 healed the breach for the time being. The symbols of spiritual authority were to be conferred by the Church, but each prelate must perform fealty to the King before receiving them, and do homage thereafter, but before he was actually anointed as bishop. This compromise of 1106 did not embrace, it would appear, any final understanding as to the method of appointing bishops: “Canonical election” formed no part of Henry’s express concessions.1

Henry, however, does not seem to have rejected openly the claims of the capitular clergy, but only to have taken steps to render them nugatory in practice. Some of the leading prelates, administrative officials on whom the Monarch could depend, took part in the election of bishops and were usually able to secure the appointment of a candidate acceptable to the King.

The Church gained in power during Stephen’s reign, and deserved the power it gained, since it remained the only stable centre of good government, while 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, destined to be embodied in Magna Carta. The extent of immunity thus claimed was never defined: an elastic phrase might be expanded with the ever–growing pretensions of the Church. Churchmen made it clear, however, that they meant it to include at least two principles—“benefit of clergy,” and “canonical election.”

Henry II. attempted to define the position in the Constitutions of Clarendon (1164), clause 12 of which provided that in filling vacant Sees the King should summon potiores personas ecclesiae and that the “election” should take place in the King’s chapel with consent of the King and consilio personarum regni, vague words which seem to reserve to Henry the decision as to who constituted “the more influential persons of the church,” whom he ought to summon, thus enabling him to control elections (as his grandfather had done) by means of ecclesiastics whose loyalty to the Crown was undoubted. Henry, in consequence of his humiliation following on Becket’s murder, had to release the bishops from their oath to observe the Constitutions. In 1173 he gave a definite promise to allow greater liberty in elections, and it was part of a new agreement with Rome in 1176, that in normal circumstances vacant sees should not be kept in the King’s hands for more than a year.1 Yet, in practice, he continued to exercise a control not inferior to that enjoyed by his grandfather. On the whole, the rights of the Church at the close of the reign of Henry Plantagenet were not far different from what had been set down in the Constitutions of Clarendon. A new definition of the frontier between the spiritual and temporal powers was the outcome of John’s need of allies on the eve of Magna Carta.

IV. Richard I. and John.

Henry II., before his death, had fulfilled the task of restoring order: to effect this, he had brought to perfection machinery of rare excellence, equally 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, or even of a careless monarch. All the old enemies of the Crown had been crushed. Local government, now systematized, formed a source of strength, not of weakness; while the Church, whose highest offices were filled with officials trained in Henry’s own Exchequer (differing widely from the type of 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.

The very thoroughness with which the monarchy had surmounted its early difficulties, induced in Henry’s successors an exaggerated feeling of security. 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 selfish ends by both his sons. Richard’s heavy taxation and contemptuous indifference to English interests reconciled men’s minds to thoughts of change, and prepared the basis of a combined opposition to a power that 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 by an extra turn of the screw. Richard did not even require to incur the odium, since ministers, his instruments, shielded him from the unpopularity of his measures, while he pursued his own good pleasure abroad in war and tournament without visiting the subjects he oppressed. Twice only, for a few months in either case, did Richard visit England during a reign of ten years.

In his absence new methods of taxation were devised, affecting new classes of property; in particular, personal effects—merchandise and other chattels—only once before (in 1187, for the Saladin tithe) placed under contribution—now became a regular source of royal revenue. The isolated precedent of Henry’s reign was followed when an extraordinarily heavy levy was required for Richard’s ransom. 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 kindly interest in his subjects, he argued that what had been paid once might equally well be paid again. With exaggerated notions of the revenue to be extracted from England, he sent from abroad 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; the consequent discontent prepared the way for a 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 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 analogies with modern politics must not be pushed too far.

(2) Throughout the reign, parts of Henry’s system, technical details of taxation and reforms in the administration of justice, were elaborated by Archbishop Hubert Walter, connected with trial by jury on the one hand and with election on the other.

(3) Richard is sometimes said to have inaugurated the golden age of municipalities. Many Charters, still extant, bear witness to the lavish hand with which he granted, on paper at least, privileges to the nascent towns. John Richard Green finds the true interest of the reign not in the King’s Crusade and French wars, so much as in his supposed fostering care over the growth of municipal enterprise.

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 endeavoured to shake himself free from the restraints of powerful ministers, and 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 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 a new direction. All the forces of discontent played openly around the throne.

As is usual at the opening of a reign, the discontented hoped that a change of sovereign would bring relief. Heavy taxation had been the result of exceptional circumstances: the new king would revert to the less burdensome scale of his father’s exactions. Such hopes were quickly disappointed. John’s needs proved as great as Richard’s: the excessive demands, both for money and for service, coupled with the unpopular uses to which these were put, form the keynote of the 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 with the barons (1213–16).

The first seven years were for England comparatively uneventful, except in the gradual deepening of disgust with the King and all his ways. The continental dominions were ripe for losing, and John precipitated the catastrophe by injustice and dilatoriness. The ease with which Normandy was lost showed something more than the incapacity of the King as a ruler and leader—John Softsword as contemporary writers call him. It showed that the feudal army of Normandy had come to regard the English Sovereign as an alien. The unwillingness of the English nobles to succour John has also its significance. The descendants of the men who helped William I. to conquer England had now a less vital interest in the land from which they came. The estates of many of the original Norman baronage, not unequally divided on both sides of the Channel, had been split up by inheritance or escheat. Some of John’s barons were purely English landowners with no interest at stake in France.

By his arbitrary and selfish home policy, the King had alienated their sympathies. Some of his father’s innovations had been unpopular from the first, and became the objects of bitter opposition in John’s tactless hands. The whole administration of justice, along with the entire feudal system of land–tenure, with its military obligations, aids and incidents, were degraded into instruments of extortion, of which details will be given under appropriate chapters of the subjoined commentary. English discontent contributed to the loss of Normandy, and that in turn left English barons more free to attend to insular matters, and so prepared the way for Magna Carta.

The death of Archbishop Hubert Walter on 13th July, 1205, deprived 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 English Church: its immediate effect was to create a vacancy, the filling of which led to a quarrel with Rome.

John failed, as usual, to recognize the merits of abler men, and saw in the death of his great Minister merely 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, 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 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, in the three last vacancies, had participated 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 a section of the monks, now frightened at their own temerity, and secured de Grey’s appointment in a second election. The Bishop of Norwich was 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 Innocent III. was quick to seize his opportunity. Both elections were set aside by decree of the Papal Curia, in favour of 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 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. Full 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 here discussed; but it should be noted that Innocent, in 1211, released the English people from allegiance to their King.1

John was one day 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 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. John had no intention, however, to forego his right to resume the practice of annual scutages: on the contrary, he executed a measure intended to make them more remunerative. This was the Inquest of Service, ordered on 1st June, 1212.2

During these years, however, John temporarily relaxed the pressure on his feudal tenants. His doing so failed to gain back their goodwill, while he broadened the basis of future resistance by shifting his oppressions to the clergy and through them to the poor. Meanwhile, his power was great. Speaking of 1210, a contemporary chronicler declares: “All men bore witness that never since the time of Arthur was there a King who was so greatly feared in England, in Wales, in Scotland, or in Ireland.”3

Some incidents of the autumn of 1212 require brief notice, as well from their inherent interest as because they find an echo in 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 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 his troops. Before tasting meat, 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.1

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. In a panic he disbanded the feudal levies; and, accompanied only by his mercenaries, moved slowly back to London.2

Two of the barons, Robert Fitz–Walter, afterwards the Marshal of the army which opposed John at Runnymede, and Eustace de Vesci, showed their knowledge of John’s suspicions 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.3

These events of September, 1212, rudely shook John out of the false sense of security in which he had wrapped himself. 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, like Peter of Wakefield, to foretell the speedy downfall of the King.1

John’s apparent security was deceptive; he had underestimated the powers arrayed against him. In January, 1213, by Innocent’s command, formal sentence of excommunication was passed on John, and Philip of France was appointed as its executor. The chance had come for which the barons, particularly the eager spirits of the North, had long been waiting. The King, on his part, realised that the time had arrived to make his peace with Rome.

On 13th May, 1213, John met Pandulf, the papal legate, and accepted unconditionally the same demands 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.2

Two days later, apparently on his own initiative, 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. John hoped thus to be free to avenge himself on his baronial enemies. The surrender was embodied in a formal 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 barons claimed at Rome that the credit (so they now represented it) for the whole transaction lay with them. In any case, no protest seems to have been raised 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 events had ripened in Matthew’s day, and he was a keen politician rather than an impartial onlooker.1

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. He agreed further to make reparation of all property taken from the Church or churchmen.

V. The Years of Crisis, 1213–15.

Once more the short–sighted character of John’s abilities was illustrated: a brief triumph led to a deeper fall. For a season, however, after he had made his peace with Rome, he seemed to enjoy substantial fruits of his diplomacy. Philip’s threatened invasion had to be abandoned; the people renewed their allegiance on the removal of the papal sentence; the barons had to make their peace 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 continental heritage of his ancestors. His attempts to recover Normandy and Anjou led to new exactions and new murmurings, while their complete failure left him, discredited and penniless, at the mercy of the malcontents at home.

His projected campaign in Poitou required 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. After 20th July, 1213, 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.1 John took this as defiance, and determined, with troops at his back (per vim et arma), to compel obedience. Before his preparations were completed, an important assembly met at St. Albans on 4th August, to make sworn inquest as to the extent of damage inflicted on church property during John’s quarrel with Rome.2 From this Council directions were issued in the King’s name commanding sheriffs, foresters, and others to observe the laws of Henry I. and to abstain from unjust exactions, as they valued their lives and limbs.3

On 25th August, after John had set out with his mercenaries to punish his northern magnates, 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, ostensibly to determine what use the Archbishop should make of his power to grant partial relaxation of the interdict, still casting its blight over England. In the King’s absence, Stephen reminded the magnates that John’s absolution had been conditional on a promise of good government. He showed them Henry I.’s coronation charter: “by which, if you desire, you can recall your long lost liberties to their pristine state.”4 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.”5

Stephen Langton desired a peaceable solution. We find him, accordingly, at Northampton, on the 28th of August, striving to avert civil war. His line of argument is worthy of note: the King must not levy war on his subjects before he had obtained a legal judgment against them (absque judicio curiae suae). These words should be compared with the “unknown charter”1 and with chapter 39 of Magna Carta.

John continued his march to Nottingham, bidding the archbishop not to meddle in affairs of state; but threats of excommunication caused him to consent to substitute legal process for violence, and to appoint a day for the trial of defaulters before the Curia Regis—a trial which never took place.2 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 act of surrender in St. Paul’s on 3rd October.3 Having completed his alliance with Rome, he was confident of worsting his enemies in France and England.

Yet most, if not all, of the magnates were against him, and this fact may possibly explain John’s issue of writs, on 9th November, 1213, inviting four discreet men of each county to discuss with him affairs of the Kingdom.4 This has sometimes been interpreted as a deliberate design to broaden the basis of the commune concilium by adding to it representatives of classes other than Crown–tenants.5 Miss Norgate, indeed, 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. Knights who were tenants of mesne lords (Miss Norgate says “yeomen”) were invited to act as a counterpoise to the barons. This innovation is held to have 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 are regarded as antiquated and even reactionary.

Recent research and criticism, however, have tended to throw doubts on the authenticity and purport of these writs, and to postpone the introduction of the representative principle into the central council to a considerably later date. It would be unwise to build far–reaching inferences on the supposed participation of county representatives in the debates of November, 1213.1

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 de Roches, the unpopular Bishop of Winchester, as Justiciar, to guard his interests, in concert with the papal legate.2 Deserted by the northern barons, John relied partly on his mercenaries, but chiefly on the Emperor Otto and his other powerful allies. Fortune favoured him at first, only to ruin him more completely in the end. On 2nd July, 1214, John had hastily to abandon the siege of Roches au Moine, leaving his baggage to the enemy. The final crash came on Sunday, 27th July, when the King of France triumphed over John’s allies at the decisive battle of Bouvines. On 18th September, John was compelled to sign a five years’ truce with Philip, abandoning all pretensions to his continental dominions.

He had left even more dangerous enemies at home, to watch 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, had ripened dormant hostility into an active confederacy organized for resistance. The English barons felt that the moment for action had arrived when news came of the disaster at Bouvines.

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 peculiarly bold and sweeping; they denied liability to follow the King not merely to Poitou, but to any part of the Continent.1

When John returned, vanquished and humiliated, on 15th 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 three weeks of his landing, John held parley with the malcontents at Bury St. Edmunds (on 4th November).2 No compromise was possible: John pressed for payment, and the barons refused.

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 worship, a conspiracy against John was sworn. Roger of Wendover gives a graphic account: 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.”1 A solemn oath was taken to withdraw their fealty (a threat carried into effect on 5th May of the following year), and to wage war on the King, unless he granted their liberties. 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 collecting mercenaries, he tried to sow dissension among his opponents: he hoped to buy off the hostility of the Church by a charter, issued on 21st November, professing to be granted “of the common consent of our barons.” Its object was to gain the Church’s support by granting freedom of election to vacant sees. The appointment of prelates should henceforth really lie with the canons of the various cathedral or conventual churches and monasteries, saving, however, 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 Church from the barons’ side to his own.

John held what must have been an anxious Christmas at Worcester, but tarried only for a day, hastening to the Temple, London, where the proximity of the Tower gave 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 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 on his promise that he would then give reasonable satisfaction. The Archbishop, the Marshal, and the Bishop of Ely were named as the King’s sureties.

John was in desperate straits for money: “the pleas of the exchequer and the counties ceased throughout England, for nobody was found who would pay tax to the King, or obey him in anything.”1 On 15th January, he reissued the Charter to the Church, and demanded a renewal of homage. The sheriffs in each county were instructed to administer the oath in a 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 swearing to go upon Crusade, a politic oath which would serve to protect him from 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 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, to enquire as to their demands. They received in reply, and took back with them to John, a certain schedule, which, so Roger of Wendover informs us, 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.2

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 liberties which would make him a slave.3

A metrical chronicle4 records the threat to depose the King, unless he fully amended the law and furnished undoubted guarantees for a lasting peace. On 5th May, the barons went through the ceremony of diffidatio, or formal renunciation of allegiance,1 a recognised feudal right, and not involving treason if justified by events and properly intimated to the overlord.2 They chose as their commander, Robert Fitz–Walter, who, as though conducting a Crusade, styled himself piously and grandiloquently, “Marshal of the army of God and Holy Church.”

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 charter3 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 1212.

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 had 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 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.1

Another royal writ, of two days later, 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.” Lands, goods, and chattels of the King’s enemies were to be seized and applied to his benefit.2 The barons, rejecting all offers, marched by Northampton, Bedford, and Ware, towards the capital. London opened its gates on 17th May.3 The example was quickly followed by other towns and by many hesitating magnates. The confederates felt strong enough to issue letters to all who still adhered to John, bidding them forsake him on pain of forfeiture.

John found himself, for the moment, without power of effective resistance; and, probably with a view of gaining time rather than of committing himself irretrievably to any abatement of his prerogatives, agreed to a conference. As a preliminary, he issued, on 8th June, a safe–conduct for the barons’ representatives to meet him at Staines within the three days following. This was too short notice: on 10th June, John, now at Windsor, granted an extension of the safe–conduct till Monday, 15th June. William Marshal and other envoys were dispatched from Windsor to the barons in London with a message of surrender: John “would freely accede to the laws and liberties which they asked,” if they would appoint a place and day of meeting. The intermediaries, in the words of Roger of Wendover,4 “without guile carried back to the barons the message which had been guilefully imposed on them.” 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.

VI. Runnymede, and after.

On 15th June, 1215, a five days’ conference between King and Barons began. On the side of the insurgents appeared a great host; on the monarch’s, 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,1 maintaining that the whole baronage of England was implicated in these stirring events, analyses its more conspicuous members into four groups: (1) the Northumbrani or Norenses of the chroniclers, the first to raise the standard of revolt; (2) other barons from various parts of England, who had shown themselves ready 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 followed the lead of London, 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 interest as well as loyalty, since their differences with the baronial leaders lay too deep for reconciliation, a few of whom are branded by name in Magna Carta as for ever incapable of holding office. These men of desperate fortunes alone remained whole–hearted on John’s side when the crisis came.2

When the conference began, the fourth group was in command of castle garrisons or of troops actually in the field; the third group, a small one, was with John; 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 following days. Some inferences, however, may be drawn from the words of the completed Charter and of several closely related documents. One of these, the Articles of the Barons,1 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 27th April. It is more probable that during seven eventful weeks the original demands had been somewhat modified. The schedule of April was probably only a rough outline of the Articles as we now know them, and these formed in turn the draft on which the Charter was based. Articles and Charter are alike authenticated by the impress of the King’s seal. There is thus a strong presumption that an interval elapsed between the King’s acceptance of the first and the completion of the second; since it would have been absurd to seal a superseded 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 the stages of negotiations at Runnymede.

A few undoubted facts form a starting–point on which inferences may be based. John’s headquarters were 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.2 Two crucial stages were 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 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 confirmed and Magna Carta itself, in several duplicates, was sealed.

To justify these inferences, a more detailed examination of the evidence available is required. 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 brought to the conference a list of grievances they were determined to redress. On the previous 27th of April the rebels had sent a written schedule to the King;1 they are not likely to have been less fully prepared on 15th June.

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 asked 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, and signified his acceptance of the barons’ demands, as contained in a list of 49 Articles (apparently drawn out on the spot), by imprinting his great seal on the wax of its label, where it may still be seen.2 Ralph of Coggeshall’s brief account gives the contemporary opinion: “By intervention of the archbishop of Canterbury, with several of his fellow–bishops and some barons, a sort of peace was made.”3 The document bears traces of the discussions that preceded it. The first article postpones a definition of the customary “relief,” leaving this to be expressed “in carta.”4 Articles 45 and 46 (less vital to the barons as affecting their allies, not themselves) are joined by a rude bracket; and their suggested modification in favour of John is referred to Stephen Langton’s decision.1 The last article, or forma securitatis, the dregs of John’s cup of humiliation, is separated by a blank space from the rest.2

The document is in a running hand and appears to have been rapidly though carefully written: a diligent copyist would be able to complete his task within a few hours. There are thus ample reasons for holding that it was not the identical schedule of the preceding April, but that it was written out between two conferences on Monday, 15th June, by one of the clerks of the royal Chancery. This is in keeping with the contemporary heading: “Ista sunt capitula quae barones petunt et dominus rex concedit.”

Comparison with the final Charter suggests that further conferences led to alterations in regard to various details:3 thus, chapter 14 contains provisions not contained in the Articuli, though forming a necessary supplement to the substance of article 32. New influences would seem to have been at work, favourable to the claims of the English Church; effecting some slight modifications in favour of the Crown;4 and apparently not too careful of the interests of the towns or of native traders.5

It is not difficult to infer the nature of the forces at work. John was fighting for his own hand; the barons merely demanded a fair statement of their just rights, and had no desire to take undue advantage of the King; the towns found the barons more ready to meet the King by sacrificing their allies’ rights than their own; Stephen Langton, while acting as mediator, looked well after the interests of the Church.

Tuesday, Wednesday and Thursday were probably consumed in adjusting these matters of detail; in reducing the heads of agreement to the more binding form of a feudal Charter; and in engrossing several copies for greater security. Everything was ready for settlement on Friday, the 19th. On that day, the final concord probably included several steps; the nomination by the opposition, with the King’s acquiescence, of twenty–five barons to act as “Executors” under chapter 61,1 the solemn sealing and delivery of several originals of the 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.

The barons on that day renewed their oaths of fealty and homage: this was the stipulated price of “the liberties.” They promised a guarantee in any form John wished, except the delivery of hostages or the surrender of strongholds—a promise they failed to keep.2

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 “ten–series”3 demanded since the preceding Friday, “on which day peace was made between the King and his barons.”4

It has been usually assumed that peace was concluded, and the Charter sealed on the 15th. The fact that all four copies of Magna Carta still extant bear this date seems to have been regarded as conclusive. Elaborate charters, however, which occupied time in preparation, usually bore the date, not of their actual execution, but of the day on which occurred the transactions they record. Thus it is far from safe to infer from Magna Carta’s mention of its own date that the seal was actually adhibited on 15th June.

Such presumption as exists is all the other way. The Great Charter is a lengthy 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 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 deliberation, while those at Lincoln and Salisbury are models of leisurely and exquisite 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 more than one day in the writing.1

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.2 These were intended for the sheriffs, whose writs of instructions dated 19th to 27th June, to publish the terms of the charters, are preserved in the Patent Rolls. Each sheriff was instructed 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, to declare upon oath all evil practices as well of sheriffs as of their servants, foresters, and others.1 This was held to apply chiefly to the redress of forest grievances.

A week elapsed before these writs, with copies of the Charter, could be sent to every sheriff. During the same few days, orders were sent to military commanders to stop hostilities. A few writs, dated mostly 25th June, show that some obnoxious sheriffs had made way for better men; while Hubert de Burgh became Justiciar in room of Peter des Roches. On 27th June, new writs directed the sheriffs and the elected knights to punish, by forfeiture of lands and chattels, all who refused to swear to the twenty–five Executors within a fortnight.

The barons were still unsatisfied as to the King’s sincerity, and demanded further securities. The interesting question thus arises, how far they were justified in doubting John’s intentions. Prof. Petit–Dutaillis, founding mainly on the writs dispatched to sheriffs and constables, credits John with perfect though perhaps short–lived good faith.2 He rightly refuses to believe Wendover’s unlikely story of John’s immediate retiral to the Isle of Wight, and of the war preparations he made there in a delirium of fury.3 Proof of John’s sincerity is sought in the reputed quarrel with his Flemish mercenaries, for whom the King’s “villain peace” meant that his purse would be closed to them and led them to desert his cause.1

In brief, according to M. Petit–Dutaillis, John’s conduct was above reproach during June and July, and until the bad faith of his opponents forced him to protect himself.2

Yet John’s punctilious observance, for a short space, of the letter of his bargain may be equally consistent with studied duplicity, dictated by urgent need of gaining time, as with any loyal intention to submit permanently to restraints which, in his own words, “made him a slave,” and were to be enforced by “five–and–twenty over kings”;3 while his negotiations with Rome are difficult to reconcile with any intention of permanently keeping faith.

Justified or not, the barons demanded that the City and Tower of London should be placed in their hands as pledges of good–faith until 15th August, or until the reforms were completely carried out. John had to surrender the city to the rebels, but the Tower was placed in the neutral custody of Stephen Langton. These terms may be read in a supplementary treaty headed: “Conventio facta inter Regem Angliae et barones ejusdem regni.”4 John, equally distrustful on his side, demanded the security promised at the renewal of allegiance; but the barons refused to embody the terms of their homage in a formal Charter. The Archbishops of Canterbury and Dublin, with several suffragans, appealed to as umpires by the King, recorded a protest narrating the barons’ breach of faith.5

The same prelates, alarmed apparently lest drastic measures of reform should lead to the total abolition of the forests, entered a second protest. As mediators, bound to see fair–play, they declared in writing that the words of the Charter must be read in a restricted sense: customs needful for preserving the forests should remain in force.6 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.1 That writer was led into error by confusing John’s Charter with its reissue by his son. Sir William Blackstone was the first commentator to correct this mistake.2

These are not the only pieces of evidence that point to lack of moderation on the barons’ part, revealed even before the four days’ conference was ended. Matthew Paris narrates how it was found necessary to curb the excesses of the twenty–five Executors of the Charter by the nomination of a second body of thirty–eight barons, drawn from both parties.3

From a contemporary chronicler there comes a strange tale of the arrogance of the twenty–five: one day when they went to the King’s court “to make a judgment,” John, ill in bed, asked them to come to his chamber as he was unable to go to them; but they curtly refused, demanding that the King, unable to walk, should be carried into their presence.4

John looked for aid to Rome. Three weeks before granting the Charter, 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 low cunning, that the rebels prevented fulfilment of his vow of crusade. In conclusion, he expressed his willingness to abide by the Pope’s decision on all matters at issue. He followed up this letter, shortly after 19th June, by dispatching Richard de Marais to plead his cause at Rome.5 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,6 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.

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, and maltreated the royal officials.1 John, in equally bad faith, wrote for foreign allies, whilst he anxiously awaited the Pope’s answer to his appeal. 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 suspended him from office (a sentence confirmed by the Pope on 4th November).2

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. 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 Crusader’s oath, 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 foresaid 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.”1

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.2 Thereafter, at a Lateran Council, Innocent 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.”3

Meanwhile, the points in dispute had been submitted to the rude arbitrament of civil war, in which the first notable success fell to John, who took Rochester Castle by assault on 30th November. The barons had already made overtures to Louis, the French King’s son, offering him the crown of England. Towards the end of November, seven thousand French troops arrived in London, where they spent the winter, while John marched from place to place, meeting, on the whole, with success, especially in the east of England. John’s best ally was once more the Pope, who did not intend to allow a French Prince to usurp his vassal’s throne. Gualo was dispatched from Rome to Philip, King of France, forbidding his son’s invasion, and asking protection and assistance for John. Philip, anxious to break the force of the Pope’s arguments by proving some right to intervene, 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; John had been convicted of treason while Richard was King, and this involved forfeiture of all rights of succession. 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; but the fleet, collected at Dover to block Louis with his smaller vessels in Calais harbour, was wrecked on 18th May, 1216. The French Prince, setting sail on the night of the 20th May, landed next morning unopposed. John, reduced to dependence on mercenaries, dared not risk an engagement. Gualo, now in England, on 28th May excommunicated Louis by name, and laid London under interdict. On 2nd June, the French Prince entered London, received homage from the Mayor and others, and took oath to uphold good laws and restore invaded rights.1 It was probably on this occasion that Louis confirmed the Charter.2 Into the vicissitudes of the war and the royalist reaction, to which the arrogance of the French troops contributed, it is unnecessary here to enter. At a critical juncture, when fortune still trembled in the balance, John’s death at Newark Castle, on the morning of 19th October, 1216, altered the situation, rendering possible, and indeed inevitable, a new arrangement of parties and forces in England. The heir to the throne was an infant, whose advisers found it prudent to reissue voluntarily, and to accept as their rule of government, the essential principles of the Charter that had been extorted from the unwilling John.

I. The Immediate Causes of the Crisis.

Many attempts have been made to show why the storm, long brewing, broke at last in 1214, and culminated precisely in June of the following year. Sir William Blackstone1 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 with success at Runnymede. Matthew Paris, he tells us, attributes the whole movement to the sudden discovery of Henry I.’s Charter, and most of the chroniclers assign John’s inordinate debauchery as the cause of the dissensions, dwelling on his personal misdeeds, real and imaginary.2 “Sordida foedatur foedante Johanne, gehenna.”3 Blackstone himself suggests a third cause, the appointment as Regent in John’s absence of the hated alien and upstart, Peter des Roches, and his misconduct in that office.

Of John’s arrogance and cruelty there is abundant testimony;4 but the causes from which Magna Carta took its rise were more deeply rooted in the past. The very success of Henry Plantagenet in restoring order in England, for effecting which special powers had been allowed to him, made the continuance of these powers 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 won—the complete overthrow of the rebellion of 1173–4 may here be taken as the crucial date—the battle of liberty had, almost necessarily, to be begun.

The wonder is that the crisis 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 boon on future generations, when by his arrogance and his misfortunes he combined against him all classes and interests in the community.

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

The 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 the fullest measure of services legally exigible, curtailed those rights and privileges which had originally balanced the obligations. The barons were compelled to give more, while they received less. Each of these heads calls for separate and detailed treatment.1

The grievances of the barons, however, were not the only wrongs calling for redress. It is probable that the baronial party, if they had acted in isolation, 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, the King might have successfully defied the baronage as his father had done before him. John had, on the contrary, broadened the basis of opposition by oppressing the mercantile classes and the peasantry. The order–loving townsmen had been willing to purchase protection from Henry at the price of heavy taxation: John continued to exact the price, but failed to furnish good government in return. Far from protecting the humble from oppression, he was himself the chief oppressor; and he let loose his foreign favourites as deputy 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 English Church, the sufferings of the clergy were shared by the poor. In confiscating the goods of 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 after the reconciliation of John with the Holy See. Notwithstanding the completeness and even abjectness of John’s surrender, 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 counterstrokes had fallen, not on him, but on the English clergy. The measures taken, in 1213 and afterwards, to make good to these victims some part of the heavy losses sustained, were inadequate.

After 1213, John’s alliance with Rome brought new dangers in its train. The united action of two autocrats, each claiming supreme powers, lay and spiritual respectively, threatened to annihilate 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.”1

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

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 friendship of the English Church. His unpopularity and vacillating nature had been thoroughly demonstrated. Further, he had himself, in 1191, when plotting against his absent brother Richard, successfully ousted the Regent Longchamp from office, thus furnishing an example of successfully concerted action against the central government.

The result was that, when the barons began active operations, 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 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 that his system of government should be properly enforced. They demanded that the King should conduct the business of Exchequer and Curia according to the rules laid down by Henry. 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 accepted by all classes of the nation; and these accordingly found a permanent resting–place in the provisions of the Charter. In temporary co–operation with this party, the usually rival party of reaction was willing to combine 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 King’s weakened hand some measure of feudal independence. They had 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, he had no course 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 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 refusal 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 its solicitude to define the exact extent of feudal services and dues, and so to prevent these from being arbitrarily increased. A detailed knowledge of feudal obligations forms a necessary preliminary to the 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 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 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, 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 services 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. Sir William Blackstone,1 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.

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. Of these, seven at least may be distinguished in the thirteenth century, all of which have now come to be represented by the modern freehold or socage. These seven are 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 tenure was known as knight’s service, or tenure in chivalry—the conditions of which must be constantly kept in view, since by them 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.1

(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 here unravelled. The services 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 of the Crown or of a mesne lord, were henceforward to hold in free socage, which thus came to be the normal holding throughout England after the Restoration.1

(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.2 Some authorities3 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.

(4) Frankalmoin was a favourite tenure with founders of religious houses. It was also the tenure on which much of the glebe lands of England was held by the village priests. The grant was made in liberam eleemosinam or “free alms” (that is, no temporal services were to be rendered).4 In Scots charters the return formally stipulated was preces et lacrymae.

(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 service, such as carrying the King’s banner or lance, or filled some important office at the coronation.5 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 William IV., ready to defend the Monarch’s title to the throne by battle in the ancient form.

Grand serjeanties were liable to wardship and marriage, as well as to relief, but not to payment of scutage.6 William Aguilon, we are told by Madox,1 “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.”

(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.”2 The grant of lands on such privileged tenures was frequently made in early days on account of some great service rendered at a critical juncture to the King’s person or interests. Serjeanties, 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.”3

The line between grand and petty serjeanties, like that between the greater and smaller baronies of chapter 14 of Magna Carta, was at first vaguely drawn. The distinction, which Dr. Horace Round considers an illustration of “nontechnical classification,”4 may possibly have originated in the Great Charter. At a later date, however, petty serjeanties, while liable for “relief,” escaped the onerous incidents of wardship and marriage which grand serjeanties shared with lands held in chivalry.1 The way was thus prepared for the ultimate amalgamation of petty serjeanty with ordinary socage.

(7) Burgage, confined to lands within free boroughs, is mentioned as a separate tenure by Littleton,2 and his authority receives support from chapter 37 of Magna Carta. Our highest modern authorities,3 however, treat it rather as a variety of socage. In Scotland, where several of the English tenures have failed to obtain recognition, burgage has established itself beyond a doubt. Even the levelling process consummated by the Act of 1874 has not abolished its separate existence.4

Of these tenures, originally six or seven, frankalmoin and grand serjeanty still exist, but rather as ghosts than realities; the others have been swallowed up in socage, which has thus become identical with “freehold.”5 This triumph of socage is the result of a long process: fee–farm, burgage, and petty serjeanty, always with 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.6

The interest of historians centres in 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 military services due by a tenant to his lord were vague and undetermined. Each Crown tenant (except favoured foundations like Battle Abbey) held his lands on condition of furnishing a certain number of fully armed and mounted soldiers 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 Professor Freeman1) attributes the allocation of specific service to Ranulf Flambard, the unscrupulous tool of Rufus. Mr. J. H. Round2 urges convincing reasons in support of the older view which attributes the innovation 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 service; and that no written record of the amount was made at the time of granting: there were, as yet, no written charters, and thus disputes arose. Probably, such grants were made in full Curia, and the only record of the conditions would lie in the memory of the Court.

Long before Magna Carta, the various obligations had been grouped into three classes, which may be arranged in order of importance, as services, incidents, and aids. Under each of these three heads, disputes continually arose.3 The essence of the feudal tie consisted in the liability to render “suit and service,” that is, to follow the lord’s banner in time of war, and 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: reliefs, escheats, wardships, marriages, primer seisins, and fines for alienation.1

(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 for one lifetime), and that again from the older precarium (or estate held during the lord’s will). Grants originally subject to revocation, gradually attained fixity of tenure for the life of the original grantee, and, later on, became transmissible to descendants: the Capitulary of Kiersey (a.d. 877) is said to be the first authoritative recognition of the heir’s absolute right to succeed. It would seem that even after the Norman Conquest, this rule of hereditary descent was not established beyond possibility of dispute.2 The heir’s right to succeed remained subject to one condition, namely, the payment of a sum known as a “relief.” This was 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. The amount remained long undefined, and the lord frequently asked exorbitant sums.3

(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.”1 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 always remained his property, subject only to a burden, which was now removed. In theory, the feudal grant of lands was always conditional: when the condition was broken, the grant fell, and the lord found himself, automatically as it were, once more the absolute 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 reverted. In warlike times the right was valuable, for whole families might become rapidly extinct. Further, 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 escheated to his lord. A complication arose when treason was the crime of which the tenant had been convicted; for 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 over the lands of ordinary felons the king had rights during a period which was defined by Magna Carta.2

Felony and failure of issue were 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,3 namely, female wards guilty of unchastity (an offence which spoiled the king’s market). Failure to obey the royal summons in time of war or to pay scutage in lieu thereof might also be a ground of forfeiture.4

Escheat was thus a valuable right both to the Crown and to mesne lords. Its effect was simply this: one link in the 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 took over the entire complexus of legal rights previously enjoyed by the defaulter: rents, crops, timber, casual profits, and advowsons of churches falling vacant; jurisdictions and their profits; 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 Magna Carta1 provides. The rights and status of innocent sub–tenants must not be prejudiced by the misdeeds of defaulting lords.

(c) Wardships are described in the Dialogus de Scaccario as “escheats along with the heir” (escaeta cum herede).2 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, during his minority, without an effective owner: the lord treated them as temporarily escheated, entered into possession, drew the revenues, and applied them to his own purposes, subject only to the obligation of maintaining the heir in a manner suited to his station in life. Considerable sums might thus be 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.3 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.”1 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.” An heiress who did not succeed to the estate until she was fourteen thus escaped wardship altogether, but if she became a ward at a younger age, the wardship continued till she attained sixteen years unless she married earlier.2

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 sought3 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 son when he came of age, in as good condition as when his father died.

One important aspect ought to be emphasized: 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. It was to the king’s interest to keep sees vacant, while his Exchequer drew the revenues and casual profits.4 This right was carefully reserved, even in the comprehensive charter in which John granted freedom of election.5

(d) Marriage as a feudal incident is difficult to define; for its meaning changed. Originally it seems to have implied little more than the right of a lord to forbid an heiress to marry his personal enemy. Such veto was reasonable, since the husband of the heiress would become the tenant of the lord. The claim to concur in the choice of a husband gradually expanded into an absolute right to dispose of the lands and person of the female ward: the prize might be a bribe to any unscrupulous gentleman of fortune who placed his sword at the King’s disposal, or it might go to the highest bidder. The lady passed as a mere adjunct to her own estates. At fourteen she might be sent to market, and the only way in which she could protect herself against an obnoxious husband was by out–bidding her various suitors.

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,”1 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.2 This extension to male heirs is usually explained as founded on a strained construction of chapter 6 of Magna Carta; but the beginnings of the practice can be traced before 1215.3 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 may be read in Magna Carta.4 Hallam5 considers that “the rights, or feudal incidents, of wardship and marriage were nearly peculiar to England and Normandy,” and that the French kings never “turned this attribute of sovereignty into a means of revenue.”6

(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 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.1 When a Crown tenant died, the King’s officers had the right to enter into immediate possession, and to exclude the heir, who could not touch his father’s lands without permission from the Crown: he had first to prove his title by inquest, give security for any balance of relief or other debts, and perform homage.2 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—holding it in custody analogous to wardship, and meanwhile drawing the profits. If the son happened to be abroad when his father died, he would experience difficulty 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.3 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 claims against a deceased tenant or his heir. Magna Carta contains no direct reference to it, but chapters 37 and 53, providing against the abuse of prerogative wardship, have a bearing on the subject.1

(f) Fines for alienation occupy a place by themselves. Unlike the incidents already discussed, they became exigible not on the tenant’s death, but on his parting with his estate during his 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 heated disputes, often settled by compromises, under which the new tenant paid a fine to the lord for recognition of his title. 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. Magna Carta contains no provisions on this subject. Disputes, long and bitter, took place in the thirteenth century; but their history is irrelevant to the present inquiry.2

II. Feudal Aids. The feudal tenant was expected to come to the aid of his lord in any special crisis or emergency. At first, the occasions on which these “aids” might be demanded were varied and undefined. Gradually they were limited to three. Glanvill,3 indeed, mentions only two: the knighting of the overlord’s eldest son, and the marriage of his eldest daughter; but he intends these, perhaps, as illustrations rather than as an exhaustive list. Before the beginning of the thirteenth century the recognized aids were the ransoming of the King and the two already mentioned.4 This understanding was embodied in Magna Carta.5

A tradition has been handed down from an early date, that these aids were voluntary offerings made as a mark of affection.1 Long before John’s reign, however, the obligation had become fixed by law; the tenant dared not refuse to pay the recognized three. But, when the Crown exacted contributions for any other reason, it required consent of the commune concilium.

The Great Charter, while confirming this tacit compromise, left the amount of aids undefined, merely stipulating that they should be “reasonable.” Examples of such payments, both before and after the Charter, are readily found in the Exchequer Rolls. Thus, in his fourteenth year Henry II. took one mark per knight’s fee for his daughter’s marriage; 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. The Statute of Westminster I.2 fixed the “reasonable” aid payable 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.3 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.4 Thus £2 per fee was taken in 1346 at the knighting of the Black Prince.

A statute of Edward III.5 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.

III. Suit and Service. This phrase expresses the essential obligations inherent in the very nature of the feudal tie. It may be expanded (as regards tenure in chivalry) into the duty of attendance at the lord’s court, whether 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 had ceased to be an urgent question before the reign of John. Indeed, the barons 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.

It was 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 in the Conqueror’s reign left to future ages a legacy of strife. William and his barons lived in the present; and the present did not urgently call for definition. Therefore, the duration of the military service, and the conditions on which exemption could be claimed, were originally vague; but the return due (servitium debitum) for each knight’s fee was gradually fixed by custom at 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 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 exemption might be claimed by churchmen; how far a tenant might compromise for actual service by tendering money; whether attendance and money might not both be withheld, if the King did not lead his forces in person; and whether service was due for foreign wars equally as for home ones.1

Difficulties increased as time went on. The Conqueror’s followers had 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, holders of English and of Norman fiefs had become distinct. On the other hand, the expansion of the dominions of the English kings increased the number of their wars, and the expense of each expedition. The small wars with Wales and Scotland formed sufficient drain on the resources of English magnates without their being summoned to fight in Maine or Gascony.

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? So early as 1198 the Knights of St. Edmunds refused to serve in Normandy, while offering to pay scutage.2 The northern barons in 1213 declared that they owed no service whatsoever out of England.3 This extreme claim put them clearly in the wrong, since John could produce precedents to the contrary. When, on his return from the unfortunate expedition of 1214, he 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.1 Pope Innocent was probably correct in condemning this contention as founded neither on English law nor on feudal custom.2 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.3

A definite understanding was never arrived at: chapter 16 of Magna Carta provided that existing services were not to be increased, without defining what these were. This was to shelve the difficulty: the dispute went on under varying forms and led to an unseemly wrangle between Edward I. and his Constable and Marshal, dramatized in a classic passage by Walter of Hemingburgh.4 Strangely enough, the Confirmatio Cartarum of 1297, which was, in part, the outcome of this later quarrel, omits (like Magna Carta itself)5 all reference to foreign service. The 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 that requires separate and detailed treatment.

IV. Scutage. The Crown did not always insist on personal service, but was frequently willing to accept a commutation in the form of a money payment. The 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. The theories of Stubbs and Freeman, once universally accepted, require substantial modifications. Four propositions may be stated with some confidence: (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; (3) that scutage was always in the option of the King, never of the barons, his tenants; and (4) that at a later time, probably during John’s reign, scutage changed its character, and became, partly through altered circumstances and partly by the King’s deliberate policy, a much more burdensome exaction. Each of these propositions requires explanations:

(1) The proper technical meaning of scutagium or “shield–money” is a money payment of so much per “shield” (that is, per knight’s fee) by a tenant in lieu of actual attendance in the army of his feudal lord: it is, as Dr. Stubbs explains,1 “an honourable commutation for personal service.” The word, however, is also more loosely used for any exaction assessed on a feudal basis, irrespective of the occasion of its levy; and, in this wider sense, includes feudal aids and other payments as well.2

(2) Professor Freeman, Dr. Stubbs, and their adherents held that one of Henry’s most important reforms was the invention of scutage; that he allowed 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, far–seeing statesman as he was, could not discard the ideals of his own generation: no evidence that he made any sweeping change is forthcoming. On the contrary, 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),3 and there is no evidence (direct or indirect) to show that the grandson accepted such commutation when it did not suit him. Scutage was thus known in England half a century before 1156—the traditional date of its introduction.

(3) Further, neither before nor after the reign of Henry II. had the individual baron any option of tendering at his discretion money in place of personal service. The conclusions on this subject formulated by Dr. Horace Round lie implicitly in the examples from the Pipe Rolls stored in the famous 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:

(a) The option to convert service into scutage lay with the Crown; not with the tenants, either individually or as a body. When the King summoned his 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; 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 with the King, paying such sum as the King thought fit to demand and sometimes having to find a substitute in addition. Exorbitant sums (not properly “scutages” at all) might thus be extorted from stay–at–homes ne transfretent or pro remanendo ab exercitu—phrases which appear in the Pipe Rolls of Richard. A Crown vassal in John’s twelfth year made fine “that he might send two knights to serve for him in the army of Ireland.”1 In such cases, each baron made his own bargain with the Crown: a scutage, on the contrary, “when it ran in the land” was at a uniform rate.

(c) The tenant–in–chivalry who stayed at home without first making his bargain was in much worse plight. He had broken faith, and in strict feudal theory had forfeited his fief by failing to perform the service for which he held it. He was “in mercy,” and might be glad to accept such terms of pardon as a gracious king might offer him.1 Sometimes, quite small amercements were inflicted: the Abbot of Pershore in 1196 escaped with 40s:2 But the Crown sometimes insisted on total forfeiture.3

It was the duty of the Barons of Exchequer to determine whether lands had thus escheated by default, and also to determine the amount of “forfeit” to be taken where confiscation was not justified or insisted on. The barons wished to refer such questions to the judicium parium.4

(4) Scutage tended continually to become more burdensome:

(a) With new inventions and more complicated fashions in arms and armour for man and horse, and increased rates payable for the hire of mercenaries, the expenses of a campaign steadily increased. It was not unnatural that the normal rate of scutage should increase in sympathy. Under Henry the recognized maximum had been two marks, the exact equivalent of 40 days’ wages at the normal rate of 8d. per diem.5 Usually he was content with a smaller sum per knight’s fee: 20s., 13s. 4d. or even 10s. being sometimes taken.

(b) A second method of increasing the yield of scutage was to readjust the assessment on which it was based, by increasing the number of contributory knights’ fees. Henry II. in 1166 had invited his unsuspecting barons to furnish him with details of the number of knights actually enfeoffed on their lands both before and after the death of his grandfather; and then treated the latter as a sort of unearned increment, the benefit of which should be shared by the Crown. The amount of servitium debitum as previously reckoned was increased by the addition of the number of knights of the novum feoffamentum, that is, of those created subsequent to the death of Henry I.1 The basis of assessment thus fixed in 1166 remained unaltered at John’s accession.

(c) The third respect in which scutages tended to become more burdensome was in their increased frequency. This was, in part, a consequence of the growth of the Empire of the Kings of England, bringing with it a widening of interests and ambitions, and an increase in the number and expense of wars. Much depended, however, on the spirit in which this feudal prerogative was used, on the amount of consideration given to the needs and interests of the barons. Neither Henry nor Richard seems to have regarded it as other than an expedient to be reserved for special emergencies, not as a permanent source of revenue in normal times.

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,2 and that when he was putting forth a special effort against Toulouse. Richard I., rapacious as he was, 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.

If it can be shown that John altered established usages under every one of these heads, breaking away from all restraints, 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 believers.

It is here maintained that John did make changes in all of these 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,1 and because in June, 1212, he drew the feudal chain tight by a drastic and galling measure.

That John elevated scutage from a weapon reserved for emergencies into a regular source of revenue, and that he raised the rate demanded beyond the recognized maximum of two marks, becomes apparent from a glance at the table2 of scutages extorted during his reign:

It will be seen that, in his very first year, John took a scutage at two marks per scutum. Next year he wisely allowed a 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 same high rate. Fines, in addition to this scutage of two marks, were exacted from those who had not made the necessary compromise for personal service in due time.3

These scutages were collected with increasing difficulty, and arrears accumulated; but the spirit of opposition increased even more rapidly. In 1206, apparently, the breaking point was almost reached.1 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 further concessions, unless something untoward happened. Something untoward did happen in the summer of 1207, when John quarrelled with the Pope. This postponed his 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 had no sense of moderation. 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.

During the two years 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 strict Inquest into the amount of service exigible from every estate in England. Commissioners were appointed to take the sworn verdicts of local juries as to the amount of liability due by each Crown vassal. Mr. Round2 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,”3 and describes it as an effort “to revive rights of the Crown alleged to have lapsed.” John intended by this Inquest, the returns to which were due on the 25th June, 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.1

Thus insidiously throughout the entire reign, the stream of feudal obligations 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, under circumstances peculiarly inauspicious, John, in May, 1214, demanded a new scutage at the unprecedented rate of three marks on every fee, grounded doubtless on the searching inquest of 1212.2

This outline of the history of scutage makes plain that grievances connected with its abuse formed one of the chief incentives to the insurrection that resulted in the winning of the Great Charter.

III. Royal Justice and Feudal Justice.

A well–known aphorism describes the King as “the sole fountain of justice.” It would be an anachronism to transport this metaphor into the thirteenth century. In John’s reign there still were, not one, but many competing jurisdictions. It was by no means certain that the King’s Courts were the proper tribunals to which a wronged individual must repair. 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 opened to the ordinary freeman no earlier than 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

(1) Local or District Courts. Justice was originally a local product, administered in rude tribunals which partook more or less of a popular character. Each shire had its assembly for hearing pleas, known as a “shire–moot” in Anglo–Saxon days, and 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 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 shire and 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 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 an active share in the dispensation of justice. It is unnecessary here to attempt a solution of the intricate problems of the courts of shire and hundred; or to discuss the still more vexed question how far the small assembly of each township is worthy to be reckoned a formal Court of Law.1

(2) Feudal Courts. Centuries before the Norman Conquest, the system of popular or district justice found itself confronted with a rival scheme of jurisdictions—the innumerable private courts belonging to the feudal lords. These private tribunals, known as feudal, manorial, or seignorial courts, slowly gained ground on the older public courts of shire, hundred, and wapentake.2

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.1 In the struggle between two schemes of justice, the tribunals of the feudal magnates triumphed over, but never abolished their rivals. The earlier popular courts lived on; but the system of district justice, which had once embraced the whole of England, was honeycombed by the growth of feudal courts. As each village passed under the domination of a lord, the village–moot became a manorial court endowed with wider powers and more effective sanctions for enforcing them. Further, as complete hundreds fell under control of powerful magnates, the courts of these hundreds were also transformed into feudal courts: franchises thus took the place of many of the old popular moots. Still, the older system retained part of the disputed ground, thanks to the protection of the Crown. Many hundreds never bowed to the exclusive domination of any one lord, and the courts of the shires were guarded by the Norman Kings against the encroachment of even the most powerful barons.

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 suppress these jurisdictions altogether. The Conqueror and his sons were glad that justice should be administered, even in a rough–and–ready manner, in those districts whither the Crown’s arm was not long enough to reach, and where the popular courts were likely to prove inefficient. 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 court had three distinct aspects, 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 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 manor, but to the sheriff in his half–yearly Circuits or “Tourns” through the county. In imperfectly feudalized districts the Tourn of the sheriff performed the same functions as the Court Leet did within a franchise.

(3) Royal Courts. Originally, the King’s Court had been merely one among many feudal courts—differing in degree rather than in kind from those of the great earls or barons. The King, as feudal lord, dispensed justice among his tenants, 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 could undertake the labour of dispensing justice for the whole nation. The monarchy had no machinery at command for a task which no Anglo–Saxon King, nor even William I., could have undertaken. No attempt in this direction was made 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 seen that the change would enhance the security of his throne and the revenue of his exchequer.

From an early date, however, the business of the Monarch was wider than the business of any other 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 to redress these was the King’s business competent in the King’s Courts. The Crown, further, asserted a right to investigate pleas of special importance, whether civil or criminal. Still, under William and his sons, royal justice had made no deliberate attempt to become national justice, or to supersede feudal justice: the struggle came with the reforms of Henry II.1

Thus the three great systems of jurisdiction, popular justice, feudal justice, and royal justice 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 one system ended and the next began. 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; while only a proportion of the hundred courts fell into bondage. The royal courts, again, from an early date, withdrew causes from the Shire Courts and interfered with manorial franchises. The Courts Baron were silently undermined, until they sank into decrepitude without ceasing to exist. With these caveats, 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 will conduce to an understanding of several obscure provisions of Magna Carta.

Avoiding technical language, and eliminating special procedure peculiar to any one court or country, the principal stages in a litigation in a modern court of law may be given briefly as follows: (1) On the complaint of the party aggrieved 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) In the usual case each party lodges written statements of his facts and pleas—that is, of the circumstances 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 before the Court; each party has 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 oath. 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. Reasoning of such a kind as can be successfully performed only by a 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 its stages and procedure, and even more 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, no record kept of the decision except in the memories of those present. The functions of “the Judges” were entirely different, and called for no previous 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 convince him that each of these words had in the Middle Ages a meaning different from what it bears to–day. That this is so 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, a trait common to all primitive systems of jurisprudence.

(3) Before the plaintiff could put the defendant on his defence, he required to show some 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 testimony had no reference to the particular facts of the case; it 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.1

(4) Then came the judgment or “doom,” which partook in no respect of the nature of the judgment of a modern tribunal. It came before the proof or trial, not after it, and was therefore called a “medial” judgment. It consisted 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 procedures. 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 success or failure in which his case should stand or fall.1 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: thus it was possible for “judgment” to be delivered by all the members of a feudal court, or all the suitors present at 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 modern approval. More frequently 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 risk of being punished as perjurers for any slip in the formula. 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 a “craven,” or if he held out till nightfall against the plaintiff’s attempts to force him to utter that fateful word.1

This earlier form of “lex” or trial (which is referred to in several clauses of Magna Carta)2 was thus 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 rather the “privilege of proof,” and usually won his case—especially in compurgation, and even in ordeal if he had arranged matters properly with the priest who presided. In one sense, the final “trial” 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.3

The essentials of this procedure1 were the same in Norman as in Anglo–Saxon England, and that in all three classes of tribunals—popular, manorial, and royal courts. Two innovations the Normans did make; they introduced trial by combat and “inquisitio.” Among the prerogatives of the Norman Dukes was this 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. This procedure was known as inquisitio (or the seeking of information) 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 device was capable of endless extension to new uses in the deft hands of the Norman Kings. William employed it in compiling Domesday Book; while his successors made it the instrument of 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 that 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.2

III. Reforms of Henry II. in Law Courts and Legal Procedure. It was reserved for Henry of Anjou to inaugurate a 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 villein had for centuries still to seek redress in the Court of that very lord of the manor who was too often his oppressor.1

In brief, then, Henry’s policy was twofold: to convert the County Courts completely into Royal Courts, since in them royal officials now dispensed royal justice according to the same rules as prevailed at the King’s 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 success, although the event hung in the balance until long after his death. The barons, though partially deceived by the insidious nature of Henry’s reforms, did what they could to thwart him; but the current was with the Crown. Royal justice steadily encroached upon feudal justice. One of the last stands made by the barons has left its traces in several chapters of Magna Carta.2 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 constitutional importance. It was Henry’s good fortune or policy 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.

The short account of that monarch’s system of procedure, necessary to a comprehension of Magna Carta, falls naturally into two divisions.

(1) Criminal Justice. (a) By his Assizes of Clarendon and Northampton, Henry reserved 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 all franchises 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 reserved exclusively for royal jurisdiction); and Magna Carta made no attempt to reverse this part of the Crown’s policy: 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.1

(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: for private “appeal” (or accusation by the injured party or his nearest surviving relative), he substituted, whenever possible, communal accusation; that is, the duty of indicting suspected criminals before the King’s Justices was no longer left to private initiative, but was laid on a body of neighbours—the predecessors of the Grand Jury of later days. Appeals were discouraged and rules laid down restricting the right of accusation.2

(c) A necessary complement was the discouragement of “trial by combat.” An ingenious device was invented and extended to an increasing number of cases; an accused individual might apply for a writ known as de odio et atia, and evade the duellum by a reference to what was practically a jury of neighbours.1

(2) Civil Justice. Henry’s innovations under this head were equally important. In his reign justice, it is sometimes said, was pigeon–holed. Much attention was bestowed on the formalities of litigation; while pleas began to be classified into stereotyped groups, each form of grievance having its appropriate remedy, to be obtained only by means of the appropriate writ.

(a) The Writ System. 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 system.” From an early date, much attention was directed to the devising of forms of writ applicable to various cases. The system, somewhat inflexible from the first, had become absolutely rigid long before the close of the thirteenth century. If a proper writ was not selected, or if no such writ had been invented, the wronged individual had no remedy in the King’s courts of common law. Registers of writs were drawn up, copied and enlarged, and transmitted from one generation to another.2

(b) Control of Feudal Courts. Whether devised for that purpose or not, this writ system proved a useful instrument for diverting the stream of litigation from the barons’ courts to the curia regis. Henry, if we may credit Glanvill, succeeded in establishing the somewhat astounding rule that no plea concerning land could be commenced in any court without the authority of a royal writ.3 Even if such writs were issued as matter of course, the mere need of asking for them would supply Henry with information doubly valuable in relation to certain other expedients still to be explained. That King, applying to his own needs procedure known to the Carolingian Kings, secured an effective means of evoking suits regarding freehold from the seignorial courts to his own. This was done by procedure initiated by two types of writs: “writs of right” addressed to the holder of a court, bidding him do justice under penalty of interference by the royal court; and “writs praecipe” addressed to the sheriff, bidding him require the holder of a piece of land to hand it over to a claimant or explain to the King why he has not done so.1

It is probable that even in 1215 the Crown had not fully developed the consequences afterwards seen to be involved in the writ of right, properly so called; but Henry II. and his sons seem freely to have used the writ praecipe in such a manner as to cause their barons to lose their jurisdiction—an abuse struck at by chapter 34 of Magna Carta.

(c) Royal Pleas and Common Pleas. The mass of new business made it necessary to increase the staff of judges and apportion the work. A natural division was that between ordinary (or common) pleas and pleas of the Crown. This distinction is recognized in many separate chapters.2 Thus two groups of judges were formed which, in later years, developed into separate courts—the Court of Common Pleas (known as “the Bench,” that is, the ordinary Bench), and the King’s Bench (known earlier as the court Coram Rege, supposed to be held in the King’s presence).

(d) The Petty Assizes. Special procedure for determining titles to land or rights of possession was also invented by Henry to supersede trial by battle. These Assizes, as they were called, are fully discussed elsewhere.3 While the Grand Assize is not mentioned in Magna Carta, its abuse was indirectly struck at by the clause concerning writs praecipe in chapter 34: the Petty Assizes, however, would seem to have won favour with the barons, who in chapter 18 demanded that regular sessions for hearing them should be held four times a year.

These were the chief innovations that enabled Henry II. to effect a revolution in the relations of royal to feudal justice. As time went on, new writs were continually devised to meet new types of cases; and litigants flocked 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?1 Can we wonder that they resented the complete though gradual supersession of their own profitable jurisdictions by the royal courts?2 or that they looked with suspicion on every new 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 these grievances, as well as of those connected with increase of feudal burdens? The cause for wonder rather is that their demands were not more sweeping: the barons, in their hour of triumph, accepted cordially one half of the royal innovations.

The chapters bearing on jurisdiction may 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;3 no freeman shall be judged or condemned by the King’s officials, but only before the full body of his peers;1 earls and barons must be amerced only by their equals.2 On the other hand, in prescribing remedies for abuses connected with numerous branches of legal procedure, 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 that these should be tried in some certain place (that is, at Westminster).3 Yet these very pleas must have included many cases which, prior to Henry II.’s reforms, would have been tried in a seignorial court. Again, in regulating the petty assizes, chapters 18 and 19 admit the Crown’s right to hold them. Here, as in chapter 40, the ground of complaint is not that there is too much royal justice, but rather that there is too little of it: henceforth it must be neither delayed nor denied. Further, the encroachments made by Henry II. in 1166 on the private franchises in the matter of criminal jurisdiction are tacitly accepted by the acquiescence in the King’s definition of “Pleas of the Crown” implied in chapter 24.

These, then, are the two groups into which the innovations made by Henry and his sons naturally fell, as viewed by John’s opponents in 1215: some of them had come to be warmly welcomed; while others, it was insisted, must be swept away.

I. Its Prototypes: Earlier Charters.

The traditional view makes Magna Carta the direct descendant of Henry Beauclerk’s Coronation Charter, which is, in turn, regarded as merely an amplification of the old coronation oath sworn by the Conqueror and his sons, in terms borrowed from a long line of Anglo–Saxon kings, stretching back from Edward Confessor to Edgar, Alfred and Egbert, until its origin is lost in the mists of antiquity. According to this time–honoured view, which insists on an exclusively Anglo–Saxon pedigree for the charters of Norman and Angevin kings, the charters of Henry I. and John were regarded as confirmations to the nation at large of the essential principles of the old laws of Alfred and of Edward, thus bridging over, alike in form and substance, the gulf of the Norman Conquest.

The accuracy of these preconceptions has of late years been rudely questioned. The simple formula for solving all problems of English constitutional origins by assuming an unmixed Anglo–Saxon ancestry, has been challenged from more sides than one. Magna Carta, like the Constitution itself, is of mixed parentage, tracing its descent not entirely from Teutonic, but partly from Norman, and even Danish and Celtic sources. In the first place, John’s Charter derives some of its vital clauses from documents not couched in charter form. The Constitutions of Clarendon of 1164 and the Forma Procedendi of 1194 are as undoubtedly antecedents of Magna Carta as is the Coronation Charter of Henry itself. The same is true of many 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.)

Then, again, the exclusively Anglo–Saxon origin of the antecedents of Henry’s Charter is by no means left unchallenged. A recent American writer, attacking the older theories as advanced by Bishop Stubbs, has formulated these three propositions: that Henry’s charter was feudal in character rather than constitutional or national, promising “a regulated feudal government” purged of Rufus’ misdeeds rather than a return to a “national” type of government; that its substance was derived from Norman innovations rather than from the Confessor’s or Canute’s laws; and that its form was founded on continental models, possibly on some Norman borough charter, and by no means on the old coronation oath.1

These iconoclastic theories require to be modified: the claims of Magna Carta, on its formal side, at least, to an Anglo–Saxon ancestry have found a powerful advocate in Mr. W. H. Stevenson,2 who holds that the Anglo–Norman charters of liberties “are developments of the Anglo–Norman writ charter, and that in its turn is . . . merely the Anglo–Saxon writ translated into Latin.”3

Looking both to the contents and the formalities of execution of John’s Great Charter, the safer opinion would seem to be, that, like the English Constitution, it is of mixed origin, deriving elements from ancestors of more races than one; but that the traditional line of descent from the oaths and writs of Anglo–Saxon kings, through the Charter of Henry I., is one that cannot be neglected.

The promises of good government that connect King John with the old kings of Wessex are thus the outcome of an essential feature of the ancient monarchy, and of the rules that regulated succession to the Crown. Two rival principles, the elective and the hereditary, from an early date, had struggled for the mastery. In an unsettled state of society, nations cannot allow the sceptre to pass to an infant or a weakling. When a king died, leaving a son of tender age and a brother of mature ability, the magnates of the kingdom, the so–called Witan, claimed the right to choose a fitting successor. The exact relations between the elective and the hereditary principles were never laid down with absolute precision: the practice usually followed by the Witenagemot was to select some near kinsman of the late king competent for the post. The king–elect had still to be solemnly anointed, and this gave to the Church an important share in deciding who should be king. Not later than the days of Edgar, it became the practice for the officiating archbishop to exact an oath of good government from the new sovereign before his final coronation. The terms of this oath became stereotyped; and, as administered by Dunstan to King Ethelred, they are still extant.1

This may be 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. When William I., anxious in all things to fortify the legality of his title, took the oath in solemn form, he created a precedent of tremendous importance, although he may have regarded it at the moment as an empty formality.2 The quasi–elective character of the kingship, the need for coronation by the Church, and this tripartite oath were all preserved.

This was of vital moment, because limits were thereby placed, in theory at least, to prerogatives that threatened to become absolute. The power of the Norman kings might almost be described as irresponsible despotism, tempered by fear of rebellion. Three forces, indeed, acted as curbs: the necessity for consulting the Curia Regis; the restraining influence of the Church; the growth of a body of public opinion, confined as yet to the upper classes.

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 moment at which the Crown might be taken at disadvantage was during the interregnum that followed a king’s death. Thus, William Rufus, anxious to prevent his elder brother 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, taking oath in the ancient form. In the same reign, began the practice of supplementing verbal promises by sealed charters. No such charter was indeed issued either by Rufus or his father when they were crowned; but the younger William, at a critical period in his reign, granted a short Charter of Liberties, the text of which has not come down to us. By a treaty made at Caen in 1091, Duke Robert and Rufus agreed that each should constitute the other his heir. Thus, at Rufus’ death, Henry was, in a sense, a usurper, and this made it necessary for him to bid high for influential support.1 It is to this doubtful title that Englishmen owe the first Charter of Liberties that has come down to us.2

Roger of Wendover relates how “as many charters were made as there are counties in England, and by the King’s command they were deposited in the abbeys of every county as a memorial,” and this is confirmed by an analysis of the copies still preserved.1

Henry’s coronation charter was the price paid for support in his candidature for the Crown. Its terms contain, however unconsciously, an indictment of his brother Rufus’ government and, perhaps, in part also of his father’s. The new king was merely “playing to the gallery”: when his purpose was served, his promises were broken.2 On the bearing of these promises there is room for diversity of opinion. Dr. Stubbs’ contention that Henry “definitely commits himself to the duties of a national king”3 has been rejected, as already explained, by recent critics. The more modern view is strengthened by an analysis of the Charter, revealing important concessions to the barons and the Church, while those to the people at large were few and vague. Of the fourteen chapters into which it is usually divided, chapter one proceeds on the narrative that the kingdom had been oppressed by unjust exactions. Henry, in the first place, makes free the holy Church of God, “so that I shall neither sell nor farm out nor, on the death of archbishop, or bishop or abbot, accept anything from the demesne of the church or from its feudal–tenants until a successor has been inducted to it.”

It seems doubtful whether the regrettably vague phraseology of the qualifying clause is intended merely to apply the generalities of the church’s “freedom” to specific instances, or whether it must be taken as a deliberate restriction. The prohibition of selling has been read as referring to the simoniacal practice of taking money from aspirants to episcopal preferments; but more probably it was meant to prohibit the alienation of the property of a vacant see, a practice that must have been often resorted to, if we judge from the efforts at recovery made by successive archbishops, notably by Becket. This reading is the more probable from the fact that “selling” is here coupled with “farming out,” an expedient clearly inapplicable to prelatical appointments and referring to the Crown’s practice of granting leases of the lands of vacant sees for nominal annual returns in consideration of a heavy grassum paid to the Treasury at the commencement of the lease. The rest of the clause is best interpreted as a renunciation of the claim to exact either a “relief” from a prelate on his appointment or payments in lieu of relief from tenants of a vacant see or royal abbey.1

The last clause of the chapter abrogates evil customs whereby the kingdom was unjustly oppressed, and then proceeds to define them—a process that occupies the remaining thirteen chapters of the document. Chapter 2 promises that reliefs of feudal tenants should be “just and legitimate.”2 Chapters 3 and 4 guard against abuse of the feudal incidents of marriage and wardship.3 Chapter 5 abolishes as an innovation “the common mintage” (an exaction levied by the mints when the coinage was altered),4 and enjoined the punishment of any one taken with false money—provisions finding no echo in John’s Charter.

Chapter 6 remits a number of arrears, reliefs, and penalties due to Rufus at his death. Chapter 7 confirms crown–tenants in the right to dispose of their personal estate by will, and provides for the division of the property of intestates among their wives, children, relations, and vassals, and for the good of their own souls.5 Chapter 8 seems to promise the total abolition of the Norman system of forfeitures and amercements (in respect of petty offences, as opposed to treasons and crimes) and a return to the Anglo–Saxon system of a fixed tariff of bots and wites.6

Chapter 9 is concerned with the “murdrum” fine—a payment exacted by the Norman kings from all the inhabitants of a hundred in which a corpse had been found, where the slayer remained undiscovered and the dead man’s identity as a person of English birth could not be proved. “Murder” was thus primarily secret slaying, in the sense that the perpetrator was not known, and, secondarily, the fine exacted on that account. This heavy fine, whose original amount is variously given as 40 or 46 marks, was intended as a protection to Normans against the native Englishry they oppressed.

Henry remitted all “murder–fines” incurred before his coronation, and promised that those incurred after that date should be “justly” paid for “in accordance with the law of King Edward”—a clause difficult to reconcile with the recognized opinion that the murdrum was unknown in England prior to 1066, unless on the supposition that the draftsman of the Charter of 1100 was strangely ignorant of the usages of thirty–four years earlier. Perhaps the “murder–fine” was not an invention of the Conqueror and his sons, but an old English institution put by the Normans to new uses. An alternative suggestion may be hazarded that here (as perhaps elsewhere in the charter) the reference to the good laws of Edward was a mere tag or “common form,” meant to please his subjects without committing the King to anything in particular.

Chapter 10 contains no concession (unless it be an implied renunciation of Rufus’ encroachments), but, on the contrary, a blunt intimation that Henry, with his barons’ consent, would retain the forests as his father had had them. The barons’ consent may be partly explained by their expectation to enjoy, as more or less habitually in attendance upon Henry, a share in the pleasures of the hunt of which the King was “master.” By chapter II., Henry concedes “proprio dono meo to knights holding their lands per loricas [that is, by knight’s service] to have the lands of their demesne ploughs quit of all gelds and of every [non–military] service, in order that, as being relieved by so great a relief, so they might effectually provide themselves with horses and arms for my service and the defence of my kingdom.” In thus exempting Crown–tenants holding by the “hauberk” (that is to say his “barons,” in the wider sense of the word) from Danegeld, on the distinct understanding that they should keep in readiness an efficient military equipment, Henry aimed at making hard–and–fast an old and fluctuating rule that prohibited Crown–tenants from being subjected to a double set of burdens. The lands of knights and churchmen, who already served the King in other ways, were not expected to contribute Danegeld in respect of their home–farms. Holders of knight’s fees, however, must keep proper weapons and armour for themselves and their horses—an obligation involving an expenditure constantly increasing with every advance in the art of war. The chapter thus recognizes a contrast between land subject to military service and land subject to geld; “the inland and warland of old English fiscal arrangements, the dominium and terra geldabilis respectively of the Geld Roll of 1084.”1 The fact that Henry’s Charter draws so sharp a line between the two, suggests that the barons may have made this a condition of their support of his claims against those of Robert. Henry’s promise, however, was never strictly carried out: the practice continued to fluctuate. Under Henry II., only the barons of the Exchequer and a few privileged religious persons enjoyed exemption.2 Gradually the distinction between inland and warland became extinct.

The remaining clauses of the Charter of Henry I. are mainly of a formal character. Chapter 12 declares a firm peace for the future throughout his kingdom—thus marking the end of the interregnum consequent on his brother’s death. Chapter 13, on the strength of which wide–reaching theories have sometimes been built, seems to be merely an amplification of the purely formal chapter that precedes it: it restores the law of Edward, with the reforms his father had effected with the barons’ consent. The old law was vague; the innovations definite and well known. Chapter 14 proclaims terms and conditions of indemnity, extended to those guilty of acts of spoliation during the interregnum now brought to an end.

These provisions, taken as a whole, contain little to justify Henry’s claim to rank as a constitutional or national sovereign. The bulk of the concessions are made to the barons. The Church, it is true, obtains a definite promise in chapter one: but the individuals who would chiefly benefit were newly–appointed prelates, who became feudal vassals on entering upon the lands of their sees. Chapters 2 and 4 confine their benefits to Crown–tenants and sub–tenants, and are therefore purely feudal and not “national” in their range. They may be compared with the clauses of John’s Charter that extend some of its provisions to sub–tenants. Chapters 12 and 13, with their vague affirmation of a firm peace, and of the old English law, now half–forgotten (undefined and declared valid only so far as unaltered by William I.), are the only grants “to the people at large.” The baronial element clearly triumphs over the “national,” in the tenor and outlook of the famous coronation charter.1

There are three intermediate links in the chain of charters connecting those of Henry I. and John, namely, the two charters of Stephen and that of Henry II.2 The circumstances of the accession of the earlier King were peculiar. Henry I. had nominated his only child Matilda as his heir: his nephew, Stephen, and all the English barons had done homage to her as their future liege lady. Stephen, however, taking advantage of Matilda’s absence and unpopularity, and of the barons’ reluctance to be ruled by a woman, made a bold dash for the Crown. From the moment of the old King’s death, “the Norman barons treated the succession as an open question”: in these words of Stubbs,1 Dr. Round finds2 the keynote of the reign. Stephen was prepared to bid higher for support than Henry had felt compelled to do: like William of Orange, five centuries later, he agreed to become “king upon conditions.” A Charter of Liberties and a solemn oath securing “the liberty of the Church” 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.”3 The process by which he built up a title to the Crown 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 influential nobles who, however, performed homage under an important reservation; their future loyalty would be strictly conditional on the treatment extended to them by Stephen.

These transactions took place at Oxford;4 at the same time the King issued his second or Oxford Charter, which combined the provisions of the oath to the Church and of the vague earlier charter, with the conditions extorted by Earl Robert and his followers. The opening words contain a laboured attempt to set forth a valid title to the throne. All reference to predecessors is avoided, and Stephen declares himself king “by appointment of the clergy and people, by consecration of the Archbishop and papal legate, and by the Pope’s confirmation.5

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 ecclesiastics and their goods, 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. Stephen also renounced wardship over church lands during vacancies—a surrender never dreamt of by Henry I. or Henry II. Grants to the people at large followed. A general clause promising peace and justice was 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 renunciation 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 private charter, more valued than a general provision in favour of all and sundry. Such grants often included the right to maintain a feudal stronghold, whose owner would enjoy 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.1 Henry II. omits all mention of Stephen and his charters, not because he did not wish to acknowledge a usurper, but because of that usurper’s lavish grants to the Church. Henry had no intention to confirm “benefit of clergy” in so sweeping a form, or to renounce wardship over vacant sees.

To the Church, as to the barons, Henry confirms only what his grandfather had already conceded. Even compared with the charter of Henry I., that of the younger Henry is shorter and less explicit—features that 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 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 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 oath, now taken as a pure formality. John, however, was not to be allowed to shake himself free from the obligations of his oath. Stephen Langton, before absolving him in 1213, compelled him to swear it anew.1

Not only were the terms of the ancient oath riveted anew on John’s conscience, but, as has been shown, the coronation Charter of Henry I., exhibited by the Primate in times of crisis to the nobles, and used in preparing the schedules that formed the rough drafts of the Articuli Baronum, was made a curb for royal caprice. It is thus impossible to neglect the importance of the sequence of coronation oaths and charters as contributors both to the form and substance of Magna Carta, although that is only one of the many lines of descent through which the Great Charter can trace its ancestry.

II. Magna Carta: its Form and Juridical Nature.

The juridical nature of the document to which John set his seal at Runnymede will be differently estimated according as it is judged by present–day or by medieval standards.

(1) The Modern Point of View. Much ingenuity has been expended in the effort to discover which particular category of modern jurisprudence most accurately describes the Great Charter. 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 had any political rights, and these concurred with him in the grant. The consent of all who claimed a share in the making of laws—archbishops, bishops, abbots, earls, and crown–tenants, great and small—entitles the Charter to rank as a 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. Further, the whole proceedings were tumultuary; the barons, assembled in military array, compelled the consent of John by 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. It may be argued also 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.1

Magna Carta has also been described as a treaty. Such is the verdict of Dr. Stubbs.2 “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.”3 This view receives some support from words contained in chapter 63 of the Charter: “Juratum est autem tam ex parte nostra quam ex parte baronum, quod haec omnia supradicta bona fide et sine malo ingenio observabuntur.” There is, however, a 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 fragments of one State, torn asunder by mutual jealousies.

For other authorities, Magna Carta is a contract, pact, or private agreement. M. Emile Boutmy is of this opinion:—“Le caractère de cet acte est aisé à définir. 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.”1 Thus considered, the proudest act of the national drama would take its place in the legal category which includes the hire of a waggon or the sale of a load of corn. There are, however, 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 consent of the contracting parties, it seems safer to describe it as a public treaty than a private pact.

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 France and the United States; while a recent American writer on English constitutional development regards 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.”2 It would be easy to cite compromises between these competing theories. Thus, a high authority declares that “the Great Charter is partly a declaration of rights, partly a treaty between Crown and people.”1

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 his rebel magnates, that, in return for a renewal of fealty and homage, John would grant “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 had to be drawn up in legal form, so as to bear record to the exact nature of the provisions, and also to the authenticity of John’s consent. 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 impression of the granter’s seal—just as in the case of a grant of land, and with many of the clauses appropriate to such a grant.2

John grants to the freemen of England and their heirs certain specified rights and liberties, as though these were so many hides of land.3 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.4 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.1

The results of this part of the inquiry seem, then, to be mainly negative. It is misleading to describe phenomena of the thirteenth century in modern phraseology which would have been unintelligible to contemporaries. Yet, if it is necessary to make the attempt, Magna Carta may perhaps be regarded as an agreement partaking of the natures alike of a statute and a royal grant, of a public treaty and a private contract, yet identical with no one of these, but (in any view) enacting or proclaiming a number of rules and customs as binding in England, and reducing them to writing in the unsuitable form of a feudal charter granted by King John to the freemen of England and their heirs.2

(2) The Contemporary Standpoint. It is perhaps more profitable to enquire under what category of medieval jurisprudence Magna Carta would have fallen, if its contemporaries had consciously attempted its classification. In Dr. Vinogradoff’s phrase: “The best way to solve these problems is perhaps to locate our document in the pigeon–holes of medieval and not of modern rubrication.”3

Answering his own question, he proceeds to range it, partly as a unilateral grant by John to his subjects and partly as of the nature of the medieval expedient known to the continent of Europe as an “establishment” (stabilimentum or établissement). No exact definition of a stabilimentum need be expected from an age accustomed to a vague use of words; but its essence seems to have been a legislative act, more or less of an institutional and exceptional nature, affecting the general welfare of the country, and thus requiring collective action by all classes or estates. The elements of authority dispersed among the various participants in legislative or sovereign power had to be concentrated round the King, somewhat as the consent of all first–class States has to be obtained at the present day for effecting a change in the rules of International Law observed by civilized nations.1

Legislative acts similar to the établissements of Capetian Kings were not unknown in England. The main purport of the Statute of York (1322), for instance, according to its latest interpreter,2 would seem to be that consent of “the community” (or “commonalty,” as it is usually rendered), as well as of the prelates, earls and barons, should be needed for any change of the nature of an “establishment,” which thus means an alteration in the framework of government. Magna Carta contemplated in chapter 61 an institutional innovation, parallels to which may be found in the more or less oligarchical schemes of 1244, 1258, 1264 and 1311. The historical importance of such restrictions upon the method of legislation required for changing the framework of government, lies in their bearing on the development of a system of Estates and of the future Parliament of the three Estates.3

III. Magna Carta: its Contents and Characteristics.

The rights enumerated in the sixty–three chapters of the Charter, representing the price paid by John for renewed allegiance, are fully discussed in the main 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.

As to externals, the want of orderly, logical arrangement has often been noted. As John Reeves4 says: “The whole is strung together in a disorderly manner, with very little regard to the subject matter”; while a recent writer maintains that “no portion of this famous document can possibly be described as a good piece of drafting.”1 Thirteenth–century standards, however, were different from our own; and the lengthy document, with its specific remedies for many abuses, contains evidence of a carefully weighed scheme and of a deep–rooted conviction of the need of reform. The barons and royal officials who helped in framing it were ignorant of the abstract principles of political science. Their ideas, it has been truly said,2 “seem to have been concrete and practical, and in their remedies they went no further than the correction of the specific abuses from which they suffered.” The framers of the document observed (with few exceptions) great legal accuracy in defining the traditional rights of the Crown, proceeding with praiseworthy moderation and scrupulous fairness towards John.3

Three closely connected characteristics of the document, as a whole, will be brought out in the succeeding analysis: Magna Carta is feudal, contractual, and (in parts, at least) reactionary in tone. Professor Adams of Yale, giving voice to opinions now widely admitted by historians, emphasizes the crucial place occupied by “the feudal contract” as the basis alike of Magna Carta and of the medieval English constitution;4 and maintains that, from the narrower point of view of 1215, the essence of John’s Charter “in spirit, in method, and in principle,” was reaction.5

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

I. Provisions classified according to the prerogatives affected.

Dr. Gneist1 arranges the chapters in five groups according as they place restraints (1) on the 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 is founded on distinctions not clearly formulated in the thirteenth century, when the various functions of government were still undifferentiated.2

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

Blackstone,3 writing in 1759, expresses the generally accepted views: “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.”4 This view seems, on the whole, a correct one: the insurgents in 1215 professed to be demanding nothing new. 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.

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 handed on some of the usages of the old English law 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 after 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.”1 Finally, (4) in some few points, the Charter aimed at going farther than Henry II. had intended to go: to mention only two particulars, the petty assizes are to be taken four times a year, while sheriffs are prohibited from holding pleas of the Crown.

History, indeed, has proved that a purely declaratory enactment is impossible: the mere lapse of time, by producing an altered context, changes the purport of any statute re–enacted in a later age. It is no unusual device for innovators to render their reforms more palatable by presenting them disguised as returns to the past. Further, it is important to bear in mind the nature of the provisions confirmed. A re–statement of some of the reforms of Henry II. leads logically to progress rather than to mere stability; while the confirmation of Anglo–Saxon usages or of ancient feudal customs, fast disappearing under the new régime, may imply retrogression rather than standing still. Chapters 34 and 39 of Magna Carta, for example, really demand a return to the system in vogue prior to the innovations of Henry of Anjou, when they favour feudal jurisdictions. Thus, some of the provisions of the Great Charter which, at a casual glance, appear 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.

Here we are face to face with a fundamental question of immense importance: Does the Great Charter really, as the orthodox view so vehemently asserts, protect the rights of the whole mass of humble Englishmen equally with those of the proudest noble? Or is it rather 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 down to writers of the present day. Lord Chatham, in one of his great orations,1 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 Creasy2 caps these words 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.” Staid lawyers and historians like Blackstone and Hallam use 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.3 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.”4 “The rights which the barons claimed for themselves,” says John Richard Green,5 “they claimed for the nation at large.” 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, not merely those of the feudal magnates.

It is a usual corollary to this theory, to attribute credit to Stephen Langton for broad–minded statesmanship: the so–called “Articles of the Barons” are really, it would seem, articles of the archbishop. In Miss Norgate’s words, 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.”1

It is not safe, however, to accept, without a careful consideration of the evidence, opinions cited even from such high authorities. “Equality” is essentially a modern ideal: 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. A vigorous minority has always protested against the popular view of Magna Carta. “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.”2

Two different parts of the Charter have a bearing on this question: chapter 1, which explains to whom the rights were granted; and chapter 61, which declares by whom they were to be enforced. The liberties were confirmed “to all freemen of my kingdom and their heirs for ever.” This opens the question—who were freemen in 1215? An enthusiasm that seeks to enhance the merits of Magna Carta by extending its provisions as widely as possible, has led commentators to stretch the meaning of “freeman” to embrace the entire population of England, including not only churchmen, merchants, and yeomen, but even villeins.

Now, homo in medieval law–Latin, was originally synonymous with baro—all feudal vassals being described as “men” or “barons.” Magna Carta is a feudal grant, and the presumption is in favour of the technical feudal meaning. The word, indeed, occasionally bore a looser, wider sense; but any room for ambiguity seems to be precluded by the use of the qualifying word “free.” No villein was fully a “liber homo.” In chapter 34, for example, the “liber homo” is assumed to be a landowner with a manorial court. Even a burgess might not be reckoned for all purposes as “free”; for the Dialogus de Scaccario discusses how far a miles or other liber homo might lose his status by engaging in commerce in order to make money.1 The word “freeman,” it would appear, as used in the Charter is synonymous with “freeholder”; and 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 it.2 To the question, who had authority to enforce its provisions, the Great Charter has likewise a definite answer, namely, a quasi–committee of twenty–five barons. It is clear that no support for democratic interpretations of Magna Carta can be founded on the choice of executors; since these formed a distinctly aristocratic body.

Magna Carta, indeed, contains positive evidences which point to the existence of class legislation. At the beginning and end of the Charter, clauses are inserted to secure to the Church its “freedom” and privileges. Many chapters, again, 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. A distinction is made (for example, in chapter 20) between the freeman and the villein, and the latter was carefully excluded from many of the benefits conferred on others by Magna Carta.1

(1) The Feudal Aristocracy. A casual glance at the clauses of the Great Charter shows how prominently 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 the relief, primarily intended for them, indirectly benefited other classes as well.

(2) Ecclesiastics. 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 appearace of having been added as an after–thought, due probably to the influence of Stephen Langton.2 Further, they are mainly confirmatory of the separate Charter already twice granted within the few preceding months.

(3) Tenants and Mesne Lords. When compelling John to grant Magna Carta by parade of armed might, the barons were obliged to rely on the support of their own freeholders. It was necessary that these under–tenants should receive some recognition of their claims, and concessions in their favour are contained in two clauses (couched apparently in no generous spirit), chapters 15 and 60. The former limits the number of occasions on which aids might be extorted from sub–tenants to the same three as were recognized in the Crown’s case. Chapter 60 provides generally that all customs and liberties which John agrees to observe towards his vassals shall be observed by mesne lords, whether prelates or laymen, towards their sub–vassals. This provision has met with a chorus of applause from modern writers. Dr. Hannis Taylor1 declares that, “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.”2 A vague general clause, however, affords little protection in a rude age and 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.

(4) Something was also done for the merchant and trading classes. The existing privileges of London were confirmed in the Articles of the Barons; and some slight additions were made. An attentive examination suggests, however, that these privileges were refined away in the final form of Magna Carta. The right to tallage London and other towns was reserved to the Crown, while the rights of trading granted to foreigners were inconsistent with the policy of monopoly dear to the hearts of the Londoners. A mere confirmation of existing customs, already bought and paid for at a great price, seems a poor return for support given to the movement of insurrection at a critical moment, when their adherence was sufficient to turn the scale. The marvel is that so little was done for them.3

(5) The relation of the villein to the benefits of the Charter has been hotly discussed. Coke claims for him, in regard to chapter 39 at least, that he must be regarded as a liber homo, and therefore as a participant in the advantages of the clause.1 This contention, it has been already shown, is not well founded. Yet the villein, it may be argued, though excluded from participating in the rights of freemen, has certain rights secured to him in his own name. For example, in chapter 20, John promises that he will not so cruelly amerce villeins—other people’s villeins at least—as to leave them utterly destitute.

The villein was protected, however, not as the acknowledged subject of legal rights, but because he formed a valuable asset of his lord.2 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.3

Other clauses of John’s Charter and of the various reissues 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. The “farms” or rents of ancient demesne might be raised by the Crown,4 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 reissue of 1217 confirms this view: while demesne waggons were protected, those of villeins were left exposed.1 Again, the chapter that takes the place of the famous chapter 39 of 12152 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.

When taken together, the significance of these somewhat trivial points is clear. The bulk of the English peasantry were protected by Magna Carta 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.3

The conclusion derived from this survey is that the baronial leaders are scarcely entitled to the excessive laudation they have sometimes received. The rude beginnings of features prominent later on (such as the conceptions of patriotism, nationality, equality before the law, and tender regard for the rights of the humble) may possibly be found in germ in 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, the Great Charter stands out as a prominent landmark in the sequence of events that 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 many centuries of growth, it still retains—or, until a few years ago, did retain—the vigour and buoyancy of youth.

IV. Magna Carta: an Estimate of its Value.

The importance of the Charter for the men of 1215 did not lie in what forms its main value for the constitutional theorists of to–day. To the barons at Runnymede its merit was that it was something definite and utilitarian—a legal document with specific remedies for current evils. To English lawyers and historians of a later age it became something intangible and ideal, a symbol for the essential principles of the English Constitution, a palladium of English liberties.

To trace the growth of these modern estimates lies outside the scope of the present treatise; but it should be noted that admiration for John’s Charter and its numerous reissues and confirmations was more measured among contemporaries than among its votaries of the seventeenth or nineteenth centuries; and that, for a long interventing period, it suffered almost complete neglect.

There is some reason to suppose that the Carta Libertatum or Carta Baronum (as it is usually cited by contemporary authorities) was first described as “great” in the reign of Henry III., and that it was then “great” mainly in a material sense, a “large” charter as contrasted with a certain parva carta granted by Henry in 1237.1

When, after many confirmations, the Charter had established itself as a permanent part of the law of the land, it seems to have fallen into the background of men’s thoughts. It played no conscious or conspicuous part in the “constitutional experiments” of the Yorkist kings; and friends of popular liberties under the Tudors seem to have made few appeals to its authority; Shakespeare’s King John has nothing to say of Runnymede or what happened there.2 It was during the struggles of Parliament with the first two Stewart Kings and in part through the influence of Coke, with his strange combination of black–letter lore and enthusiasm for the old Constitution as interpreted by him, that the Charter, now “great” in a sense higher than material, took hold of the popular imagination. Thereafter estimates of its worth steadily expanded. In many a time of national crisis, Magna Carta has been 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 modern 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, inherent and accidental. (a) Its intrinsic value depends on the nature of its own provisions. The reforms demanded by the barons were just and moderate: avoidance of extremes tended towards a permanent settlement. 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.”1 This practicability is an English characteristic, and strikes the key–note of almost every great movement for reform which has succeeded in English history. Closely connected with this is another feature, the markedly legal nature of the Charter. As Magna Carta, after Coke’s day, was rarely absent from the thoughts of statesmen, a practical and legal direction was thus given to the efforts of Englishmen in many ages.2 Therein lies another English characteristic. While democratic enthusiasts in France and America have often sought to found their 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.

Further, the nature of the provisions bears witness to the broad basis on which the edifice was intended to be built. The Charter, notwithstanding the prominence given to feudal grievances, redressed other grievances as well. Another intrinsic merit was that it made definite what had been vague before. Definition is a valuable protection for the weak against the strong: vagueness favours 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 impunity. Where previously the vagueness of the law lent itself to evasion, its clear re–statement 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.

(b) Part of the value of Magna Carta may be traced to extrinsic causes; to its vivid historical setting. The importance of its provisions is emphasized by the object–lessons that accompanied its inauguration. Christendom was amazed by the spectacle of a King obliged to surrender at discretion to his subjects. The fact that John was compelled to accept the Charter meant a loss of royal prestige, and great encouragement to future rebels. What once had happened, might happen again: the King’s humiliation was stamped as a powerful image on the minds of future generations.

A separate treatise would be required for any serious attempt to discuss the various estimates formed of Magna Carta as viewed in successive centuries and in different aspects. Some commentators have concerned themselves mainly with individual clauses; others have treated it as one whole. Historians look mainly to its immediate effects; lawyers and publicists to its ultimate consequences, as it affected the development of the English law and Constitution.

(1) Value of Individual Provisions. To judge from the reforms that attracted the notice of the only contemporary chronicler1 whose opinion has come down to us, the clauses considered of most importance in his day were those treating of the “disparagement” of women, loss of life or member for killing beasts of the forest, reliefs, the restoration of seignorial jurisdiction (“hautes justices”) and the appointment and powers of the twenty–five barons over the King’s government and over the appointment of bailiffs.

Some at least of these clauses are among those usually considered reactionary, and there seems little doubt that the barons in 1215 were deeply interested in the restoration of their feudal franchises, which Henry and his sons were taking away from them. In the words of the French historian, who was perhaps the first to sound the reaction from the “traditional” view of Magna Carta: “The barons had no suspicion that they would one day be called the founders of English liberty. . . . They were guided by a crowd of small and very practical motives in extorting this form of security from John Lackland.”2

Of modern writers’ estimates of the relative importance of particular clauses it seems unnecessary to speak, as their number and variety are great.3

(2) Its Legal Value. The value of the Charter as a whole, however, is more than a mere sum of the values of its separate parts. Its great importance lay, not in the exact terms of any or all of its provisions, but in the fact that it enunciated a definite body of law, claiming to be above the King’s will and admitted as such by John. As our supreme authorities say of Magna Carta: “For in brief it means this, that the King is, and shall be below the law.”4 The King, by granting the Charter, admitted that he was not an absolute ruler—that he had a master in the laws he had often violated, but which he now swore to obey. Magna Carta has thus been truly said to enunciate “the reign of law” or “rule of law” in the phrase made famous by Professor Dicey.1

This conception of the existence of a definite body of clearly formulated rights (now set down in the Charter in black and white under John’s seal), which the King was bound to observe, was supplemented by the King’s acceptance of the barons’ claim to a right of compulsion. This was a principle of abiding value, apart from any or all of the clauses redressing specific grievances. “In the slowly developing crisis of Henry III.’s reign, what men saw in the charter in its bearing on their differences with the King was not a body of specific law, but that the King’s action was bound and limited, and that the community possessed the right to coerce him.”2

(3) Its Value for the future Development of the Constitution. Magna Carta marks 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 unity of interests between King and lower classes had been endangered by the heavy drain of taxation; but the actual break–up of the old tacit alliance only came in the crisis of John’s reign. Henceforward can be traced a 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 form a league with the barons, in the name of law and order, against the Crown, now the chief law–breaker.

Such an alliance involved the adoption of a new baronial policy. Hitherto each great baron had aimed at his own independence, striving to gain new franchises for himself, and to keep the King outside. This policy, which succeeded both in France and Scotland, had before John’s reign already failed in England; and the English barons, now admitting the hopelessness of the struggle for feudal independence, substituted 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 by law and custom, not by the caprices of his evil heart. The barons sought to control henceforward the royal power they could not exclude: they desired some 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 marks merely a stage in a process, rather than a final achievement. It is necessary somewhat to discount the Charter’s claims to be “the first documentary proof of the existence of a united English nation” and 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.”1

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 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. 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;1 and civil rights were far from universally distributed. The leaders of the “national” movement gave no political rights to the despised villeins, who comprised more than three quarters of the population of England; while their civil rights were almost completely ignored in the provisions of the Charter. Magna Carta marked an important step, in the process by which England became a nation; but that step was neither the first nor yet the final one.2

In treating of the juridical nature of Magna Carta as partly of the type of legislation known on the Continent as an établissement, requiring all participants in political power to be assembled round the King in order that they might give consent, it has already been suggested that what took place at Runnymede may have had an influence on the development of the conception of a series of estates and therefore on the genesis of the modern Parliament.3 The Charter’s greatest contribution, however, to constitutional advance lay undoubtedly in its admission (tacitly implied in its every clause) that the royal prerogative was limited by the customary feudal rights of the barons (if not of other classes as well).

In a sense there was nothing new in this: the feudal relation, with its inherent conceptions of mutual, contractual obligations and the rights of diffidatio and rebellion, needed no official proclamation: it was known to all. But the formal embodiment of a great mass of feudal custom in a document, destined to be consulted and reinterpreted in future ages, created, as it were, a bridge between the older monarchy, limited by medieval, feudal restraints, and the modern, constitutional monarchy, limited by a national law enforced by Parliament. This is the main thesis upon which Professor Adams so emphatically insists, “the unintended result” of Magna Carta.1 In light of it, he claims to have located the origin of the English Constitution in Magna Carta, and in these two principles of it which assert the limitations of the King’s prerogative and the barons’ right to compel him to respect the rights of others.

These estimates of the rôle played by Magna Carta would seem to be somewhat excessive and to attempt to find too simple an origin for a system of which complexity and compromise between conflicting elements are the very essence. On the one hand, there is more in the English Constitution than the mere principle of limited monarchy: on the other, the main line by which that monarchy has progressed from medieval to modern ideals has not been by the method, unsuccessfully attempted in 1215, 1244, 1258, 1265 and 1311 (to name only the best–known instances), of subjecting the King to the dictation of a Committee of his adversaries; but rather the method of using the counsellors of his own appointment to curb his own caprice, while making it progressively difficult for him to appoint any minister of whom the national council did not approve. The revolutionary expedient of the Committee of twenty–five was not destined to be on the direct line of development that led, through the doctrine of ministerial responsibility, to the Cabinet system of government that reached and perhaps passed its highest point of achievement in the nineteenth century.

(4) Its Moral or Sentimental Value. After every allowance has been made for the great and beneficent influence of Magna Carta, it may still be doubted whether the belief of enthusiasts in its excessive importance has been fully justified. Many other triumphs, almost equally important, have been won in the cause of liberty; and statutes have been passed embodying them. Why then should Magna Carta be 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 nations. 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 of 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, that has 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 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 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 national freedom. To explain the exact way in which this particular document—dry as its details at first sight may seem—has fired the popular imagination, is a task that lies rather within the sphere of psychology than 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 has increased, as traditions, associations, and aspirations have clustered more thickly round it.

Thus Magna Carta, in addition to its legal and political value, has a moral value of an equally emphatic kind. Apart from and beyond the salutary effect of the useful laws it contains, its moral influence has contributed to an advance in the national spirit, and therefore in the national liberties. Such considerations justify enthusiasts, who hold that the granting of Magna Carta was the turning–point in English history.

V. Magna Carta. Its defects.

The great weakness of the Charter was the absence of an adequate sanction. The only expedient for compelling the King to keep his promises was clumsy and revolutionary; quite worthless 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, instead of constitutional machinery to turn the theories of Magna Carta into realities, “a right of legalized rebellion” was conferred on an executive committee of twenty–five of the King’s enemies.1

This is the chief defect, but not the only one. Many minor faults and omissions may be traced to a similar root. Constitutional principles are conspicuously absent. The importance of a council or embryo parliament, framed on national lines; 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; the need of distinguishing the various functions of government, legislative, judicial, and administrative—all these cardinal principles are completely ignored. 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 these do so only incidentally, namely, chapters 14, 21, 39, 52, and 61.

The Commune Concilium is indeed mentioned; and its composition and mode of summons are defined in chapter 14. But this chapter appears as an afterthought—an appendix to chapter 12: it has no counterpart in the Articles of the Barons. The rebel magnates were 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 arbitrary increase of feudal exactions. This is further proved by the omission of the Council from the reissue of 1217, when an alternative way of checking the increase of scutage had been devised.

If the framers of John’s Magna Carta had possessed the grasp of constitutional principles, with which they have been sometimes credited, they would have seized the opportunity afforded them by the mention of the Common Council, in chapters 12 and 14, to define carefully the powers 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 powers other than that of consenting to scutages and aids. Not a word is said of any right 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 scutages and aids—that is to say, it only extends over the exactions that affected the military tenants of the Crown. It is true that chapters 21 and 39 may possibly be read as 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 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.1 Similar reasoning applies to the provisions of chapter 39 (protecting persons and property of freemen, by insisting on the necessity of a “trial by peers”) so far as they affect earls and barons.

It is clear that the leaders of the opposition in 1215 did not consider the constitutional powers of a national Parliament to be the best safeguard of the rights and liberties theoretically guaranteed by the Charter. They relied rather on the revolutionary powers of the twenty–five barons to be appointed under chapter 61.

The same inability to devise practical remedies may be traced in minor clauses of the Charter.1 When John promised in chapter 16 that no one should be compelled to do greater service than was due, no attempt was made to provide machinery to define such service; while chapter 45, providing that only men who knew the law and meant to keep it, should be made justiciars, sheriffs and bailiffs, laid down no criterion of fitness, and contained no suggestion of the way in which so laudable an ambition might be realized.

Thoughtful and statesmanlike as were many of the provisions of Magna Carta, and wide as was the ground they covered, important omissions can be pointed out. Some crucial questions seem not to have been foreseen; others, for example the liability to foreign service, were deliberately shelved2—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.3

V. Magna Carta: Value of Traditional Interpretations.

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

The uses to which it has been put, and the interpretations read into it, are so numerous and varied, that they would require a separate treatise to describe them all. Not only was Magna Carta frequently reissued and confirmed, but its provisions have been asserted and reasserted times without number 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 proved a powerful weapon in the hands of politicians, especially of the parliamentary leaders in the seventeenth century, when waging the battle of constitutional freedom against the Stewart dynasty. (2) Its legal aspect has been equally important as its political one: in the course of legal debate and in judicial opinions, it has been the subject of many and conflicting interpretations, some of them accurate and some erroneous.1 (3) Finally, it has been discussed in many commentaries either exclusively devoted to its elucidation or treating of it incidentally in the course of general expositions of the law of England.

In light of the part played by Magna Carta throughout centuries of English history, it is not surprising that an increasing veneration has tended at times to overstep all bounds. It is unfortunate, however, that it has been more frequently described in terms of inflated rhetoric than of sober methodical analysis.2 Nor has this tendency to unthinking adulation been confined to popular writers; judges and institutional authors, even Sir Edward Coke, 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 modern English constitution calculated to win the esteem of mankind, which has not been read by commentators into Magna Carta. The political leaders of the seventeenth century discovered among its chapters every reform they desired to introduce into England, disguising revolutionary projects by dressing them in the garb of the past.

Instances of constitutional principles and institutions erroneously credited to the Great Charter will be expounded under appropriate chapters of the sequel. It will be sufficient, in the meantime, to enumerate trial by jury; Habeas Corpus; abolition of arbitrary imprisonment; prohibition of monopolies; the close tie between taxation and representation; equality before the law; a matured conception of nationality: all these, and more, have been discovered in various clauses of the Great Charter.1

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. If the vague and inaccurate words of Coke have obscured the bearing of many chapters, and diffused false notions of the development of English law, the service these very errors have done to the cause of constitutional progress is measureless. If political bias has coloured interpretation, the ensuing benefit has accrued to the cause of national progress in its widest and best developments.

Thus the historian of Magna Carta, while bound to correct errors, cannot afford to despise traditional interpretations. The meanings read into it by learned men have had a potent effect whether they were historically well or ill founded. The stigma of being banned by the Great Charter was something to excite dread. If the belief prevailed that an abuse was really prohibited by Magna Carta, the most arbitrary king had difficulty in finding judges to declare it legal, or ministers to enforce it. The prevalence of such a belief was the main point; whether it was well or ill founded was, for political purposes, 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, adopted for many centuries, and even now hard to dispel, is that the Great Charter guaranteed trial by jury.1 This belief is now held by all competent authorities to be 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 use since the Norman Conquest.2

Jury trial in each of the three forms in which it is known to modern English law (the grand jury, the petty criminal jury, and the jury of civil pleas) is able to trace an unbroken pedigree (though by three distinct lines of descent) from the same ancestor, 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, we are afforded some consolation by remembrance of a fact which modern authorities are inclined to neglect, namely, that the soil was prepared by Anglo–Saxon labour for its planting.1

The old English institution of 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 accustomed the natives to corporate action, and formed precedents for asking them to give evidence on local matters jointly and on oath. Further, one form of the jury—the jury of accusation—is clearly foreshadowed 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 had no clear vision of the consequences of what they did. The uses to which Inquisitio was put by William and his sons in framing Domesday Book, collecting information, and dispensing justice, have already been discussed.2 It was reserved for Henry II. to start the institution on a further career of development: he thus laid the foundations of the modern jury system not merely in one of its forms, but in all three of them.

(1) In reorganizing machinery for the suppression and punishment of crime by the Assizes of Clarendon and Northampton, he established the principle that criminal trials should (in the normal case) begin with indictment of the accused by a representative body of neighbours sworn to speak the truth.1 This was merely a systematic enforcement of one of the many forms of inquisitio already in use: criminal prosecution was not to be begun on mere suspicion or irresponsible complaints. The jury of accusation (or presentment), instituted in 1166, has continued in use ever since, passing by an unbroken development into the grand jury of the present day.2

(2) By insisting that ordeal should supersede compurgation as the test of 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 dealt to that form of procedure or “test,” since it depended for its authority on superstition. A canon of the Church had struck away the pivot on which Henry had made his criminal system to revolve. Some substitute was urgently required and so the petty jury (or its rude antecedent) came into existence. The man publicly accused as presumably guilty was asked if he would stand or fall by reference to the verdict 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 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, which has had so important an influence on the development of constitutional liberties in England, and even on the national character. Another expedient of Henry’s invention aided the movement towards the criminal jury, namely, the writ de odio et atia by applying for which a man “appealed” of a crime might substitute what was practically a jury’s verdict for the “battle” which had previously followed “appeal” as matter of course.1

(3) The Civil Jury owes its origin to quite a different set of reforms, though inaugurated by the same reformer. Among the evil legacies from Stephen’s reign, not the least troublesome were the claims advanced by rival magnates to estates and franchises which had been bestowed with lavish prodigality by Matilda and Stephen. Henry realized the urgent need of protecting vested interests by a more rational expedient than trial by combat. Here again he had recourse to a new development of “inquisition.” In such cases an option was given to the tenant (the man in possession) to refer the question at issue to the verdict of local recognitors.

This new expedient was applied at first only to a few special cases. It was used to settle claims of ultimate title—the out–and–out ownership of 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 three distinct varieties).2 The King by a high–handed act of power deprived the demandant of that remedy which was his right by feudal law, the resort to the legal duel. It was because the new procedure was founded on a royal Ordinance, that the name “Assize” was applied to it.

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). While the assisa was narrowly confined to a few types of cases, the jurata was a flexible remedy capable of indefinite expansion, and thus soon became the more popular and the more important of the two. Sometimes the twelve recognitors, summoned as an assisa by the King’s command, were by consent of both litigants turned into a jurata to try a broader issue that had unexpectedly arisen. This explains the phrase, assisa vertitur ad juratam. The assisa and jurata, always closely connected and resembling each other in 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, by 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 tentative measures, however, still vague and unconsolidated, must not be identified with the definite procedure into which at a later date they coalesced: Magna Carta did not promise “trial by jury” to anyone.

I. Reissues and Confirmations of the Great Charter.

King John had accepted the reforms contained in Magna Carta unwillingly and insincerely; but the advisers of his son accepted them in good faith. Three reissues of the Charter were granted in 1216, in 1217, and in 1225, and these were followed by many confirmations. The scheme of this Historical Introduction is restricted to such facts as have direct bearing on the genesis and contents of John’s Charter. Yet no account of Magna Carta would be complete without some notice of the more important alterations effected in its text during the reigns of later kings.

(I.) Reissue of 1216. On 28th October, 1216, Henry of Winchester was crowned at Gloucester before a small assemblage.1 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 a vassal of Rome.2 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 reissued 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.

The Charter in its new provisional 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 King. It was, therefore, framed in terms meant to conciliate such of the opposition as were still open to conciliation.

Yet the new Charter could not be a verbatim repetition of the old one. Vital alterations were required by altered circumstances.1 It was no longer an expression of reluctant consent by the government of the day to the demands of its enemies, but 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 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 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. It was imperative that the government should retain a free hand in exacting feudal services and levying scutages.

Miss Norgate argues,2 somewhat unconvincingly, that the omission of chapters 12 and 14 was a concession to Gualo and the Holy See. Rome had regarded these provisions as dangerous innovations of so marked a kind as to justify the annulling of the Charter of 1215, and papal sanction could be obtained in 1216 only by their jettison. William Marshal, however, is not likely to have required external pressure: he naturally preferred to leave his own hands untied.

Yet the issue of the Charter under papal sanction, however obtained, was of material value to Henry’s cause. It had the immediate effect of bringing over eleven bishops to the young King’s side. M. Petit–Dutaillis1 sums up the situation in two propositions: the French invasion saved the Great Charter, and then papal support saved England from Louis.2

The Charter of 12163 is notable for its omissions, which may be arranged under five groups.4 (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 chapter 12, which abolished the Crown’s rights to increase feudal contributions arbitrarily, without consent of the Common Council.5

(2) No reference is made to John’s charter of May, 1215 to the Church, granting liberty of elections, although the vague declaration that “the English Church should be free” was retained. Chapter 42, allowing liberty to leave the kingdom, and to return without the King’s consent (a privilege chiefly valuable to the clergy in their intercourse with Rome) was entirely omitted: and the same is true of chapter 27, which had placed in the church’s hands the supervision of all distributions of chattels of men who had died intestate.1

(3) A great number of provisions of purely temporary interest disappeared, among them those providing for disbandment of mercenary troops and dismissal from office of obnoxious individuals.

(4) A number of omissions of a miscellaneous nature may be grouped together; for example, chapter 45, by which the Crown restricted itself in the choice of justiciars and other officers; the latter half of chapter 47, relating to the banks of rivers and their guardians; and some of the provisions affecting the forest laws.

(5) These alterations implied, incidentally rather than deliberately, the omission of such constitutional machinery as had found a place in 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 with chapter 12, to which it had formed a supplement.2

Magna Carta as granted by Henry is thus concerned with matters which lie within the sphere of private law, and contains no attempt to devise machinery of government or to construct safeguards for national liberties. The King’s minority implied a constitutional check, 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 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 rather than legal or constitutional. The logical outcome was the Barons’ War.

The importance of the omissions is minimized by two considerations. (a) Many of the original provisions were 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 deemed advisable to emphasize those particular parts of it in black and white. In particular, throughout the reign of Henry, the Commune Concilium was always consulted before a levy was made of any scutage or aid. (b) It is stated in the new charter that the omitted clauses were reserved for further consideration. In the so–called “respiting clause” (chapter 42) six topics were thus reserved because of their “grave and doubtful” import: levying of scutages and aids; rights of Jews and other creditors; 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 consider at some future time (probably as soon as peace had been restored) how far it would be possible to re–enact the omitted provisions.1

A practical difficulty confronted the advisers of the young King. Neither law nor custom afforded precedents for the execution of documents during a king’s minority. The seal of a king was not available for his heir: the custom was to destroy the matrix when a death occurred, to prevent its being put to improper uses.1 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.”

In the Red Book of the Dublin Court of Exchequer there is a copy of an Irish version of this Charter,2 bearing to be executed at the same place and date as the English one (Bristol, 12th November, 1216). It is possible that it was not issued till some months later. After the coronation, the Marshal wrote to Geoffrey de Marsh, Justiciar of Ireland, promising to send a confirmation to the Irish of the liberties just granted to Henry’s English subjects.3 It was not till 6th February, 1217, that this promise was fulfilled by the sending of an Irish version of the Charter, in the King’s name, as a reward to his Irish subjects for their fidelity.4 If this is the original transcribed into the Red Book, it would seem to have been antedated by nearly three months; while its terms suggest that little trouble was taken to adapt the purport of the English Charter to Irish needs: four perfunctory alterations substitute the freedom of the Irish Church for that of the English Church; the liberties of Dublin for those of London; prohibit weirs in the Liffey, instead of the Thames and Medway; and make the “quarter of Dublin,” not of London, the measure of corn. The value of the grant must have lain rather in the principle involved than in the phraseology of particular clauses.

(II.) Reissue of 1217. The effect of the new Charter in England was disappointing: apart from the bishops, only four submissions were made to Henry in three months.1 The vicissitudes of the war need not be traced: 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 destroyed the fleet on which Louis depended. The French prince was glad to accept honourable terms. Negotiations, beginning on the 8th, resulted, on 12th September, 1217, in the Treaty of Lambeth or Kingston. “The treaty of Lambeth is, in practical importance, scarcely inferior to the charter itself.”2 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 lay allies, and a guarantee of the principles they fought for. He strove in vain to make better terms for the clergy, who were left exposed to Gualo’s vindictive greed.3

It must have been an impressive scene when, on 12th September, at an eyot in the Thames near Kingston, between rival armies lining opposite banks, Louis (who had already granted a confirmation of the substance of John’s Charter) and Henry, laying their hands on the Gospels, swore with the Legate and the Marshal to restore to the barons of England and all other men of the realm their rights and heritages, with the liberties formerly demanded.4 Henry promised to pay to Louis 10,000 marks nominally as an indemnity for his expenses, an amount partly raised by a scutage of two marks “ad Angliam deliberandam de Francis.”1 Louis, on his side, restored all cities, lands and property taken by him in England. One version of the treaty mentions particularly the Rolls of Exchequer, charters of the Jews, charters of liberties made in the time of King John, and all other exchequer writings.2 The restoration of rights and liberties by Henry was the main provision of the treaty, and this was fulfilled on 6th November, 1217, by the issue of a revised Charter of Liberties and a separate Forest Charter.3

The issue of these two Charters put the coping stone to the general pacification. After the havoc wrought by two years of civil war, the moment had come for a 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 disappeared, and some new clauses took its place. The matters then reserved for further discussion as “gravia et dubitabilia” had now been reconsidered and were either finally abandoned, or accepted with or without amendment. Of the six topics “respited” in 1216, one (concerning forests and warrens) was dealt with in the Forest Charter which took the place of chapters 36 and 38 of 1216 and of the omitted provisions of 1215; two others (concerning scutage and enclosure of rivers) formed the subjects of special chapters (44 and 20 respectively); while the remaining three (the rights of Jews, free egress from and ingress to England, and the “farms” of shires) were not mentioned, although some of the grievances involved may have been indirectly affected by certain newly added chapters (e.g. that which regulated the times of meeting of shire and hundred courts) or by the “saving clause” in chapter 42.

To take the chief alterations in the order in which they occur,1 chapter 7 of 1217 defines further a widow’s rights of dower; chapters 13, 14 and 15 alter the procedure for taking the three petty assizes; chapter 16 makes it clear that the King’s villeins do not share in the protection from harsh amercement; chapter 20, as already mentioned, treats of river enclosures; chapters 23 and 26 treat of purveyance, the former extending the term of payment allowed to Crown officials, the latter exempting entirely the carts of people of the better classes—“parsons,” knights and ladies. The two provisions, taken together, speak eloquently against the “democratic” interpretation of the Charter. Chapter 34 further limits or defines Crown bailiffs’ rights in regard to legal tests or “trials” where there is no evidence except their own unsupported testimony; chapter 38 makes clear a previously doubtful point concerning the King’s rights over escheats. Chapters 39, 42, 43, 44 and 46 will immediately receive separate discussion; while chapter 47 ordains “of common counsel” the demolition of all “unlicensed” strongholds built or rebuilt since the outbreak of the war between John and his barons.

Chapter 44, generally regarded as replacing chapter 12 of 1215, declares that scutages should be taken in future as they had been wont to be taken under Henry II. If, as has already been suggested, the scutage question was the immediate cause of the revolt of 1215, the importance and difficulty of this subject are obvious. Professor Adams1 thinks that the leaders in 1217, at their wits’ end for a solution, fell back on a vague, non–committal formula as “an effort of despair.” Yet the old rates of scutage could still be read in the Exchequer Rolls, and the practice of a reign that had closed only twenty–six years before must have been familiar to many others besides the aged Marshal who set seal to the Charter. In reality John’s innovations were now swept away; these included the habit of making an annual tax of what was meant for special emergencies, the assessment under the Inquest of 1212, the demand for scutage and service cumulatively, and, above all, the high rate of three marks per knight’s fee.2

The essence of the barons’ demands in 1217 must undoubtedly have been the return to the normal maximum rate of 2 marks. The substitution of this reference to the usage of Henry for 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 justified in thinking, from their own medieval point of view, that they were neither submitting to unfair abridgments of their rights, nor yet countenancing reactionary measures hurtful to the growth of liberty.3 Yet when this alteration is viewed by modern eyes, in the light cast by the intervening centuries of constitutional progress, the conclusion suggests itself that, unconsciously, retrograde tendencies were 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. If (as it was once the fashion to maintain) the control of taxation by a national assembly, the conception of representation, and the indissoluble connection of these two principles with each other, really found place in Magna Carta in 1215, they were ejected in 1216, and failed to find a champion in 1217 to demand their restoration.

A modern statesman, with a grasp of constitutional principles, would have seized the occasion of the revision of the Charter, to define the functions of the Great Council with precision and emphasis. He would not lightly have thrown away the written acknowledgment implied in chapters 12 and 14 of 1215—in the germ, at least—of the right of a national council to control the levying of taxes. The magnates in 1217 were content, however, to abandon abstract principles; they 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: 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 continued to meet with increasing frequency throughout the reign of Henry III., and the consent of the magnates 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 Charters; sometimes a demand was met by absolute refusal—the first distinct instance of which seems to have occurred in January, 1242.1

Chapters 39, 42 and 43, treating of topics not mentioned in John’s Charter, fall (strictly considered) outside the scope of this treatise, but a short account of their main provisions may prove useful here. Chapter 42, from its possible connection with the omitted chapter 25 of 1215, may be taken first. The shire court is not to meet oftener than once a month; less often, where local custom so ruled it. No sheriff or bailiff is to make his tourn through the hundreds oftener than twice a year—after Easter and after Michaelmas respectively—and only in the accustomed places. Careful provision is made for holding view of frankpledge at Michaelmas, with due regard to “liberties” upon the one hand, and to the King’s peace and keeping the tithings full upon the other. Finally, the sheriff is not to make “occasions,” but shall content himself with what he used to have for holding view of frankpledge in Henry of Anjou’s time—a reference, it would seem, to that “Sheriff’s aid” which was the cause of a famous quarrel in 1163 between Henry and his recently appointed Archbishop, Thomas à Becket.1

Chapters 39 and 43 link themselves rather with the future than the past, showing that new problems were thrusting themselves to the front since the days of John—topics round which much controversy was to rage. These chapters anticipate the principles underlying two famous measures of Edward’s reign: the statutes of Quia Emptores2 and of Mortmain.3 Chapter 39 forbade for the future that any freeman should give away or sell so much of his land as would not leave sufficient to furnish the service due from the fief to the feudal lord.

Chapter 43 marks the growing hostility against the accumulation by the monasteries of wealth in the form of landed estates. The times were not ripe for a final solution of this problem, and the charter only attempted to remedy one of the subsidiary abuses of the system, 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 made bad tenants, since, as they never died, the lord of the fief was deprived of wardship, relief, and escheat. This was not unfair, provided the transaction was bona fide. Sometimes, however, collusive agreements were made, whereby a freeholder bestowed his lands on a particular house, which then subinfeudated the same subjects to the original tenant, who thus got his lands back, but now became tenant of the church, not of his former lord. The lord was left with a corporation for his tenant; and all the profitable incidents would, under the new arrangement, accrue to the church. Such expedients were prohibited, under pain of forfeiture, by chapter 43 of the reissue of 1217; and this prohibition was interpreted liberally by the lords in their own favour.1

The only remaining provision that calls for comment is the “saving clause” in chapter 46, intended, perhaps, to cover the gaps left in the Charter as conceived in 1215, by the decision not to restore some of the dubitabilia of 1216: this chapter reserves to archbishops, bishops, abbots, priors, templars, hospitallers, earls, barons, and all other persons, cleric and lay, the liberties and free customs they previously had. The vagueness of this provision deprived it of value.

These were the main alterations made in 1217 in the tenor of the Great Charter. This reissue is of great importance, since it represents practically the final form taken by the Charter. On 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.2 These remained in 1217, as in 1154, a result of past civil war, and a menace to 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 royal castles were under command of castellans 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.1 The destruction of “adulterine” castles and the resumption of royal ones were both necessary accompaniments of any real pacification.

Attempts have been made to estimate the motives and forces at work in these considerable changes in the text of the revised Charter. Attention to minute points of detail in practice and phraseology are rightly held to indicate a return towards more normal conditions under which “problems of everyday government” and the more accurate statement of the law receive attention.2 The new Charter, in its desire to profit by the actual experience of the past two years, has some analogy to a modern amending statute. Other alterations, however, of a more fundamental nature would seem to have been deliberately made; and, as changing the old customs of the realm, they are of a legislative character in the strictest sense. Evidence of pressure from the baronage, in pursuance of their own selfish interests, can be traced in some at least of these innovations; but, on the other hand, the destruction of their “adulterine” castles shows that there were limits to their power.

The sincerity with which Magna Carta, thus amended, had been accepted by those in power is shown by the issue, seven months later, of letters to the sheriffs ordering them to publish the Charter in their shires and see that it was put in force; while orders were also given to respect the franchises of the city of London.3

(III.) Reissue of 1225.4 Henry’s second Charter, like his first, had been authenticated by the seals of the Legate and the “Rector.” The objection to providing a seal of Henry’s own was that it might be used to prejudice the royal prerogatives by alienating Crown lands and franchises during the King’s minority. But, shortly before Gualo left England, his task as Legate well done, instructions were given to a goldsmith to prepare a royal seal of silver, 5 marks in weight. Apparently the first use to which it was put was to attest letters patent, issued after Michaelmas, 1218, warning all men that no grant in perpetuity was to be sealed with it till the King came of age.1

The full twenty–one years would not be completed until 1st October, 1228; but by letters dated 13th April, 1223, Pope Honorius declared his ward to be of full age under certain reservations. A few months earlier (30th January, 1223) consternation had been created by writs issued in the King’s name to the sheriffs for a sworn inquest as to the customs and liberties enjoyed by John in the various shires, before the war; and Henry’s advisers thought it prudent to issue second writs on 9th April ordering that the results of the inquest should be held back till 25th June, and disclaiming all intention of raising up “evil customs.”2

It was not, apparently, until December, 1223, that the Pope’s declaration of the partial ending of Henry’s nonage was given effect to, with consent of the Council; and on 13th January, 1224, Henry was asked by Stephen Langton for a new confirmation of the Charters.3 In the ensuing debate, William Brewer answered for the King: “The liberties you ask ought not to be observed of right, because they were extorted by force,” words which, coming from a royal favourite, were sufficient to justify suspicion. When the Archbishop had rebuked this rash adviser: “William, if you loved the King, you would not endanger thus the peace of his realm,” the young King said: “We have all sworn these liberties, and what we have sworn we are bound to keep.”1

No formal charter seems at this time to have been granted; but the barons’ opportunity came in December of the same year, when Henry’s necessities forced him to demand a contribution of one–fifteenth of moveables. A bargain on these terms was struck, and on 11th February, 1225, the Charter of Liberties and the Forest Charter were both reissued.2 The new Forest Charter was practically identical with that issued in 1217; while the alterations in the new Charter of Liberties were the result of a determination to place on record the circumstances in which it had been granted. In the preamble Henry stated that he acted “spontanea et bona voluntate nostra” and all reference to consent was omitted, although many magnates appear as witnesses. These alterations were intended to emphasize the fact that no pressure had been brought to bear, and thus to meet the objection urged by Brewer in 1224, that the Charter had been extorted by force.3

The “consideration” also 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 reissue of 1225 (as compared with the original grant of 1215) one step nearer the legal category of “private bargain.” In another important new clause—founded probably on a precedent taken from chapter 61 of John’s Charter—Henry is made 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; the clause, however, was diplomatically made general in its terms.1

One original copy of this third reissue of the Great Charter is preserved at Durham with a still perfect impression of Henry’s recently made seal in green wax, though the parchment has been “defaced and obliterated by the unfortunate accident of overturning a bottle of ink.”2 A second original is to be found at Lacock Abbey, in Wiltshire. The accompanying Forest Charter is also preserved at Durham.3

This third reissue 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 (in virtue of the confirmation of Edward I.) still remains on the statute book.4

Henry, however, was not yet, in 1225, fully of age; and suspicions seem still to have been entertained as to what would be his attitude when he became of full age for all purposes. It was apparently in January, 1227, that the Council authorized the King to issue writs to his sheriffs that all grants of lands, tenements, or liberties, to be held valid, must be confirmed under Henry’s seal. Writs in these terms went forth on 21st January. This was tantamount to an official declaration that the minority was ended.1

Under feudal theory, the close personal relations between lord and vassal had to be renewed when a death occurred: every new King exacted payments for confirmation of earlier grants, and Henry’s previous recognitions had been provisional. The King was enunciating no general doctrine of contempt for vested interests: his abuse of power lay in the exorbitant sums charged for charters confirming earlier, informal “precepts.”2 There is no substantial ground for the opinion, once widely held,3 that the King intended to annual the Great Charter, and that, accordingly, it was not in force from 1227 to 1237. Nor, in the instructions to the sheriffs, is there a word said about the Forest Charter. Henry, indeed, dared not openly repudiate either of the Charters, which had received full papal authority.

Yet he was far from scrupulous in observing the letter of their provisions: there was good warrant for the complaint contained in article 7 of the Petition of 1258,4 that Henry broke his bargain, by extending the forests beyond the boundaries to obtain which the fifteenth had been paid. The process was begun by the issue of letters close, on 9th February, 1227.5 Henceforward, Henry’s attitude towards the charters was a settled one: he confirmed them with a light heart when he could obtain money in return, and then acted as though they did not exist.

(IV.) Confirmations (1237 to 1297). After the close of Henry’s minority history is concerned not with reissues of the Charter but with confirmations. Matthew Paris refers to the circumstances under which the first of these was executed on 28th January, 1237: as the express condition of a grant of “a thirtieth part of the kingdom, to wit of all moveables,” Henry promised that thenceforward the “libertates Magnae Cartae” should be inviolably observed.1 This Charter differs fundamentally from those of 1215, 1216, 1217 and 1225. It does not rehearse the substance of any one of the “liberties” it confirms, but contents itself with a brief reference: “We have granted and by this our charter confirmed . . . all liberties and free customs contained in our charters which we caused to be made to our subjects during our minority, to wit as well in magna carta nostra as in carta nostra de foresta.”2 Even with the long list of witnesses, occupying half of its extent, this document is a small one when compared with the voluminous parchments of earlier grants. It has been suggested3 that the marked contrast in size may have given rise to the practice of alluding to the earlier charter (whether of John or Henry) as Magna Carta, in distinction from the new parva carta.4

In support of the suggestion, it may be argued that the phrase “Magna Carta” is never used by Roger of Wendover, and that its first appearance in the narrative of Matthew Paris is in the passage just quoted, sub anno 1237, “carta libertatum” being the usual description. The words ”Magna Carta” appear a second time in his account of a famous debate in 1242,5 where pointed reference is made to the bargain struck in 1237, when Henry conceded the liberties contained in “Magna Carta” in return for the thirtieth of moveables “et inde fecit eis quandam parvam cartam suam.” The antithesis is here emphatic.

The adoption of this parva carta means that the Charter had become stereotyped as it stood in 1225, and no longer moved with the times. For ten years previous it had, like a living thing, adapted itself to changing needs and grievances. The new style possibly corresponds with a new attitude on the part of both King and barons. Henry had abandoned any intention of repudiating the Charter or even of infringing its specific promises as to wardships, reliefs or the like: his practice was to evade its spirit, while observing its letter. The opposition, on their part, may unconsciously have come to consider the Charter’s value to lie, not in its specific clauses, but in its assertion of the existence of a fixed body of law to which successful appeal could be made against the King’s caprice. Changes in the texture of that law are no longer reflected in reaffirmations of the Charter; but must be sought for in a series of supplementary documents such as those of 1258, 1297, 1300, 1311, 1406 and 1628.

After 1237 little is heard of the charters until 1253, when complaint was raised of infractions, particularly in regard to the privileges of the Church. Both charters were republished, and on 13th May, the sentence of excommunication, which had accompanied the reaffirmations of 1225 and 1237, was repeated in a peculiarly impressive manner.1

In 1265 Simon de Montfort, during his brief period of power, exacted from Henry and his son a new confirmation, dated 14th March, notable for its clause empowering “all of the realm to rebel against us and use their utmost resources and efforts to our hurt” in imitation of chapter 61 of John’s grant. After Simon’s overthrow and death, the King and the young Edward, of their own initiative, affirmed the charters by chapter five of the Statute of Marlborough (1267). Of the confirmations of Edward’s reign, it is only necessary to mention the emphatic Confirmatio Cartarum of 1297, accompanied by an Inspeximus of the issue of 1225, granted under conditions that are well known. 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 grants.

Of later confirmations, Coke1 has counted 15 under Edward III., 8 under Richard II., 6 under Henry IV. and one under Henry V. Of these, only the statute of 1369 (42 Edward III. c. 1) requires special notice: 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, it had 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 that the English Parliament might so use its present legislative supremacy as to limit the legislative supremacy of other Parliaments in the future.2

II. Magna Carta and the Reforms of Edward I.

The Great Charter, alike from its excellences and its defects, exercised a potent influence 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 protracted struggles and civil war that made up the troubled reign of Henry III.; while the difference of attitude assumed by Henry and his son respectively towards the scheme of reform it embodied, explains why one reign was full of conflicts and distress, while the other was prosperous and progressive. The fundamental difference between the policies of Henry and Edward lies in this, that while Henry, in spite of numerous nominal confirmations of Magna Carta, never loyally accepted the settlement it contained, Edward acquiesced in its main provisions honestly on the whole, with a sincere intention to carry them into practice.

At the same time, the attitude of Henry III. indicates an advance upon that of John. Henry, on attaining majority, had confirmed the charters freely and on his own intiative, and found himself thereafter unable openly to repudiate the bargain he had made. Yet the settlement between Crown and baronage was nominal rather than real: the King was bound by bonds of parchment which he could break at pleasure. In the absence of sanctions for its enforcement, the Charter became an empty expression of good intentions: no constitutional expedient existed 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 must be attributed to the defects of the Great Charter.

The whole interest of the reign, indeed, lies in the attempts made to evolve adequate machinery for enforcing “the liberties.” 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 scheme contained in chapter 61 of the Great Charter, and added new defects of its own. The baronial committee was not designed to enter into friendly co–operation with Henry in the normal work of government, but rather to supersede entirely 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.

If Simon de Montfort had any vague conception of the real remedy for the evils of the reign, 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; and some authorities find in the provisional scheme of the closing months of 1264, traces of the constitutional expedient afterwards successfully adopted as a solution of the problem. In one respect, the Earl of Leicester did influence the development of the English constitution; he furnished the first precedent for a true Parliament, reflecting interests wider than those of Crown tenants and free–holders, when he invited representatives of the boroughs to take their places by the side of representatives of the counties in a 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 on 4th August, 1265.

The personal humiliation of Simon, however, 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 also within his father’s councils. He found himself in a position to realize some of his political ideals; and he adopted as his own, 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 chief adviser of his aged father and after he had succeeded to his throne, not only accepted the main provisions of the Great Charter,1 but adopted also a new scheme of government which formed their necessary counterpart. The very fact of the adoption of Earl Simon’s ideals by the heir to the throne altered their chances of success. All such schemes had been foredoomed to failure so long as they emanated from an opposition leader, however powerful; but their triumph was assured when accepted by the monarch himself. Under the protection of Edward I.—the last of the four great master–builders of the constitution—the Commune Concilium of the Angevin kings grew into the English Parliament. This implied no sudden dramatic change, but a long 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 which ought to be contributed by the nation, led him to devise a system of taxation which would fill the Exchequer while avoiding unnecessary friction with the tax–payer. In broadening the basis of finance, 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, towards the nobler ideal of a national Parliament containing representatives of every community and every class in England. The principle of representation (foreshadowed in a vague way for centuries before the Conquest in English local government), now found a home, and, as it proved, a permanent home, in the English Parliament.

The powers of this assembly widened almost automatically, with the widening of its composition. To its original function of taxation, legislation was soon added. 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 towns retained rights of free discussion even after Parliament had split into two 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, varying 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 Council was recruited from Parliament, and the appointment of King’s ministers was influenced by the proceedings in the larger assembly.1

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 that typified in the Committee appointed by the Mad Parliament of 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. The bargain made at Runnymede between the English monarch and the English nation found its 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, though merely the unconscious instrument by whose agency the new conception was for a time partially realized, yet 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 in 1215. The ultimate triumph of the principles underlying Magna Carta was assured not through any executive committee of rebellious barons, but through the constitutional machinery devised by Edward Plantagenet.

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: copies were to be distributed throughout the land, to be preserved in important strongholds and among the archives of the chapters of cathedral churches.1

I. The extant original versions. Of the many sealed copies, four have escaped the destroying hand of time: (1) The British Museum Magna Carta, number one—formally cited as “Cotton, Charters XIII. 31a.” The recent history of this document, which is possibly the original copy delivered to the barons of the Cinque Portes, is well known. It was discovered in the seventeenth century, among the archives of Dover Castle, by the Warden, Sir Edward Dering, and by him presented to Sir Robert Cotton.2 In the fire of 23rd October, 1731, this Charter was rendered in parts illegible, while the yellow wax of the seal was melted. It is possible that the accident has added to the prestige of this particular copy of Magna Carta.

Like the three others still extant, it is written continuously, though with many contractions, in a neat, running, Norman hand. Some omissions seem to have been made in the body of this version and to have been supplied at the foot. These are five in number.1 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 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.

The importance of this document was recognized, and a facsimile was prepared by John Pine, a well–known engraver, some eighteen months after the great fire. The engraving bears a certificate, dated 9th May, 1733, 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 words obliterated had been replaced from the other version (to be immediately described) preserved in the Cottonian collection.

(2) The British Museum Magna Carta, number two—cited as “Cotton, Augustus, II. 106.”2 The early history of this document is unknown, but it came into the possession of Mr. Humphrey Wyems, and by him 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.1 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. Thus for the preservation of two original copies of the national charter of liberties the nation is indebted to Sir Robert Cotton. Several authors2 gravely record how Sir Robert discovered “the palladium of English liberties” in the hands of his tailor at the critical moment when scissors were about to transform it into shapes for a suit of clothes. This detail is a fable, since both manuscripts of Magna Carta in the Cottonian collection are otherwise accounted for.

(3) The Lincoln Magna Carta. This copy is under the custody of the Dean and Chapter of Lincoln Cathedral, where it has lain for many centuries. The word “Lincolnia” is endorsed in a later hand in two places 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 flourishes and in a more finished manner: the inference is that it took longer to engross. The Record Commissioners, in preparing the Statutes of the Realm, considered this version of superior authority to the others and have chosen it for their engraving published in 1810 in that valuable work, and also in the first volume of their edition of Rymer’s Foedera in 1816.3

(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.1 Sir William Blackstone, in April, 1759,2 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 taken place during the tenure of the see by Gilbert Burnet, his political adversaries accused him of appropriating it—an undoubted calumny, as will be hereafter explained. The document had not been re–discovered in 1800 when the royal commission published a report of its inquiries for national records.3 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 1814,4 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 fine, leisurely penmanship and also in the absence of additions at the bottom of the parchment.5

II. Comparison of the Originals. Prior to Sir William Blackstone’s work, extraordinary confusion seems to have prevailed concerning the various Charters of Liberties. Not only was John’s Magna Carta confused with reissues by Henry; but these latter were known only from an official copy of the Charter of 1225 contained in the Inspeximus of the twenty–eighth year of Edward I. Neither Madox1 nor Brady2 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 in the British Museum and also of the Salisbury version.3 Mr. Care4 showed no clear knowledge of the various manuscripts, though he mentioned the existence of several. Even 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.5

As these four versions are practically identical in their substance, no important question seems to be involved in the discussion as to whether any one of them has greater authority 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 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, 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.”1

In all printed texts of Magna Carta, the contents are divided into a preamble and sixty–three chapters. There is no warrant for this in any one of the four originals: the “chapters” are a modern invention, made for convenience of reference.

III. Articles of the Barons. Of hardly inferior interest is the parchment which contains the heads of agreement made between John and the rebels on 15th June, 1215. This is now in the British Museum, cited officially as “Additional MSS. 4838.” The seven centuries that have passed over it have left surprisingly few traces; it is legible throughout, and still bears the impression of John’s seal in brown wax. It was apparently deposited in Lambeth Palace, where it remained until the middle of the seventeenth century. Archbishop Laud, when threatened with impeachment, 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. A few hours later, Laud was committed to custody of Black–Rod, and an official messenger was sent by the House of Lords to seal up his papers. Bishop Warner had, meanwhile, escaped with the Articles of the Barons. He kept this 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. When the Salisbury Magna Carta disappeared, Burnet was suspected of appropriating it. What gave apparent weight to these misrepresentations of his political opponents was that special facilities had been granted him to search public records in the prosecution of his historical labours, and that he actually had in his possession—quite lawfully, as we 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.”1

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. It was purchased from Mr. Mitchell’s daughter by another historian, Philip, second Earl of Stanhope, who presented it to the British Museum in 1769. It is now exhibited along with the two Cottonian copies of Magna Carta. The Record Commissioners have reproduced it in Statutes of the Realm in 1810, and also in the New Rymer in 1816.2

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) beginning a new line. The numbers, which appear in all printed editions, have no warrant in the original.3

IV. The so–called “unknown Charter of Liberties.” At Paris is preserved a copy of what looks like a charter granted by John, but irregular in its form. This document is preserved among the Archives du Royaume in the Section Historique and numbered J. 655.4 A copy of this copy was discovered at the Record Office in London by Dr. Horace Round in 1893. Before that date it seems to have been practically unknown to English historians, although it had been printed by a French writer thirty years earlier.5 As the interpretation of this document has proved a puzzle attracting many to attempt its solution, it may be well to give a brief analysis of its tenor.1 The text of the supposed Charter is preceded, in the manuscript (which is in a French hand of the early quarter of the thirteenth century), by a copy of the Charter of Liberties of Henry I., from which it is separated by this sentence, in Latin: “This is the Charter of King Henry, by which the barons seek their liberties, and these following are granted by King John,” words which invite comparison with the heading of the Articuli Baronum, and suggest that the document under description may have formed a link between Henry I.’s charter and these Articuli.

The first clause runs in the third person (concedit rex Johannes) and grants that he will arrest no man without judgment, nor accept anything for justice, nor commit injustice. The remaining eleven clauses are all in the first person singular (whereas regular charters run in the plural). The second clause restricts relief; the third regulates wardship; the fourth, marriage; the fifth, testate and intestate succession; the sixth, the rights of widows. The seventh, opening with the word “adhuc” (as though later additions were now made to provisions previously written), concedes that Crown vassals need not go on military service outside of England except in Normandy and Brittany; and seems further to suggest, in certain circumstances, a diminution of the servitium debitum. Clause 8 limits scutage to one mark unless by counsel of the barons.

Clause 9, again beginning with adhuc, agrees to give up the forests made by Henry II. and Richard. Clause 10 (also with its adhuc) grants remission, in several particulars, of the strictness of the forest laws. Clause 11 prohibits Jews from taking interest during a debtor’s minority; and clause 12 concedes that no one shall lose life or limbs for the killing of a deer.

At least seven solutions have been attempted of the problems raised by this manuscript. (1) Dr. Round, in communicating his discovery to the English Historical Review, 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.1 (2) Mr. Prothero preferred to view it as an abortive proposal made by the King early in 1215 and rejected by the barons.2 (3) Mr. Hubert Hall dismissed the document as a forgery, describing 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.3

(4) In the first edition of this work, published in 1905, the tentative suggestion was made that the document might be a copy of the actual “schedule” which we know from Roger of Wendover4 to have been drawn up by the barons prior to 27th April, 1215, and at that date forwarded to John with the demand, under threat of civil war, that he should forthwith set his seal to it. In this view the schedule would be merely a precursor of the Articles of the Barons, with which it had been previously identified. The fact that this “schedule” was hurriedly drawn up by unskilful hands was suggested as an explanation of the peculiar features of the “unknown charter” emphasized by Mr. Hall; its archaisms, its erroneous royal style running in the singular, and its transition from the third to the first person. (5) Mr. Davis,5 in rejecting this theory, maintained that the document contained the jottings made by some one present while negotiations were actually in progress between the barons and John’s representatives at some date between the drawing up of the Articuli Baronum and the sealing of the Great Charter, presumably, therefore, between 15th and 19th June, 1215.

(6) Mr. Petit–Dutaillis6 modifies Mr. Davis’s theory materially. The conference, at which the unofficial note–taker was present, must have taken place shortly before the framing of the Articuli Baronum, and the note–taker himself may have been an emissary of Philip Augustus, possibly a spy of humble origin, collecting information in furtherance of Philip’s designs on England. (7) The most recent, detailed, and ingenious theory is that of Dr. Ludwig Riess of Berlin,1 who thinks that a copy of the first Henry’s Charter was sent to John for convenience of reference when the latter, amid the misfortunes of the ill–starred campaign of 1214, was trying to make terms with the rebellious northern barons, and that jottings subsequently made on the blank space at the foot of the parchment, as to concessions granted by John, constitute the so–called “unknown charter.”

Successive clauses of the document tell the story of its genesis—and a romantic story it is. When the northern barons met the demand of 26th May, 1214, for a scutage, by the counter demand for a confirmation of Henry Beauclerk’s Charter, John’s Regent, Peter des Roches, wrote to the King, then in Poitou, for instructions, enclosing a transcript of Henry’s Charter, to which he had appended a jotting to remind John of the promise already made on 28th August, 1213, through Stephen Langton. This note forms, in Dr. Riess’s theory, clause one of the much discussed document. Thereafter a period of haggling ensued between John and the distant rebels, with Peter and perhaps also the archbishop as intermediaries, the King making a careful memorandum from time to time of each concession wrung from him by the obduracy of the barons. The King is thus the author of clauses 2 to 12 inclusive, couched in the informal first person singular, each new group opening with the word “adhuc.”

The original document, which thus represented the stages of unsuccessful negotiations extending over several months, was captured, so it is inferred, by the French. After a copy had been made for preservation at Paris, the original was sent by Philip to the barons that they might embarrass John by confronting him with concessions in his own handwriting which he now desired to repudiate. When Henry’s Charter was produced by Stephen Langton at Bury St. Edmunds on 4th November, 1214, it was the royal jottings appended to it, not the familiar, century–old charter itself, that produced the sensation which modern writers have found so hard to explain.

Such is Dr. Riess’s brilliant effort at historical reconstruction: the main difficulties to its acceptance are that it involves too many unproved assumptions; that John, before the failure of his schemes, was unlikely to authorize substantial concessions, or to make careful memoranda of them as though he meant to keep his promises; and that five months, between May and October, would not suffice for the conduct of protracted negotiations between John in Poitou and the malcontents scattered through the north of England.

It is beyond doubt, however, that offers and counteroffers, of which the schedule of Easter was only one, passed to and fro, between March and June of the year 1215. The negotiations of which our document contains a record may have taken place between the respective dates of the “schedule” and the Articuli. It would be easy to explain the presence of a copy in the French archives on the assumption that the original was among “the charters of liberties” surrendered by Louis in 1217. This trifling amendment would meet some of the objections to Dr. Riess’s theory, which in all essentials seems to be the most convincing yet suggested. In any view, the “unknown charter” would appear to be a link between the Charter of 1100 and the Articuli.

It would clearly be inadvisable to found conclusions upon 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 still throw light on otherwise obscure passages in genuine charters. Instances of this will be found in the sequel.

II. Previous Editions and Commentaries.

I. Printed Editions of the Text. Prior to 1759, even the best informed writers on English history laboured under much confusion in regard to the various charters of liberties. Few seem to have been aware that fundamental differences existed between the charter granted by John and the reissues of Henry. Much of the blame 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.1

Early editions of “Magna Carta,” then, are not of John’s Charter at all, but give the text of Edward’s Inspeximus of Henry’s reissue of 1225. The very earliest of these to be printed was apparently that published on 9th October, 1499, by Richard Pynson, the King’s printer.2 The same document was followed in numerous editions by Pynson, Redman, Berthelet, Tottel, Marshe and Wight, from 1499 to 1618. It was not until Blackstone’s day, however, that John’s Charter appeared in print. Of the numerous editions that have since appeared, only four call for separate notice.

(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.3

(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 Select Charters, first published in 1870.

(4) In 1892, M. Charles Bémont published carefully edited texts of the charters of 1215 and 1225, printing as footnotes to the latter the variants of 1216 and 1217.

II. Commentaries and Treatises. Within five years of the peace made at Runnymede, a minstrel attached to Robert of Béthune, one of John’s familiars, included an incomplete but not inaccurate summary of the Charter in his Histoire des ducs de Normandie et des rois d’Angleterre, supposed to have been composed in 1220.1 This first rude commentary has already been alluded to.2 Posterity would gladly have bartered it, such as it is, for a few words of explanation from one who was well able to speak but preferred to keep silence. The discreet biographer of William the Marshal excuses himself from drawing upon his intimate sources of information: he must pass over, he says, the war which was in England between the King and his barons, for there were too many incidents which it would not be honourable to recount.3

Later in the century, comes the mysterious medieval lawbook known as the Mirror of Justices, complaining of “the damnable disregard” of Magna Carta and containing a chapter on that document with 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.”4 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.”1

Reference has already been made to the comparative neglect of Magna Carta in the fifteenth and sixteenth centuries, and to the influence of Coke in reviving interest in its provisions. Of the commentaries that have subsequently appeared, it is not, perhaps, necessary to mention more than the following thirteen. (1) The elaborate treatise of Sir Edward Coke, King James’s deposed Chief Justice, comprising the second of his four Institutes, was published in 1642 under direction of the Long Parliament, the House of Commons having given the order on 12th May, 1641.2

Although this commentary, like everything written by Coke, was long accepted as a work of great value, its method is in reality 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 changes wrought by the experience and vicissitudes of four eventful centuries. The clauses of Magna Carta are merely occasions for expounding the law as it stood, not at the beginning of the thirteenth century, but in Coke’s own day. In the skilful hands of Sir Edward, the Great Charter is made to attack abuses of James or Charles, rather than those of John or Henry. In expounding the judicium parium, for example, he explains minute details of procedure before the Court of the Lord High Steward, and the nature of the warrants to be issued prior to 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 “Parliament” did not exist in 1215, and that the regulation of trade was then an exclusive prerogative of the Crown.

(2) In 1680 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. 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.”

(3) 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.”1

(4) 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. F. S. Sullivan issued a course of lectures under the title An Historical Treatise on the Feudal Law, with a Commentary on Magna Charta: “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.”2

(7) John Reeves’ invaluable History of English Law, 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 serious errors inevitable.

(8) In 1829 Richard Thomson published an elaborate edition of the charters, combined with a commentary which makes no serious attempt to supplement the unhistorical explanations of Coke by the results of more recent investigations. 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 done much to help forward the study of the charters, insisting upon the close mutual connection between the various Charters of Liberties. It is doubtful, however, whether by this very insistence upon the continuity of this one series of documents, 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 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 development. Every Act appearing on the Statute Rolls is, in a sense, an Act amending Magna Carta; while such enactments as the Statutes of Marlborough and 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 recognizes, though the scheme of his book led him to emphasize another 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.

(10) A brilliant article by Mr. Edward Jenks appeared in The Independent Review for November, 1904, whose title, The Myth of Magna Carta, indicates the iconoclastic lines on which it proceeds. He argues 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 feudal and reactionary in its intention and effects. Finally, for most of the popular misapprehensions concerning it, he holds Coke responsible.

(11) In The Magna Carta of the English and of the Hungarian Constitution (1904), Mr. Elemér Hantos ably analyzes the numerous and interesting parallels between John’s Charter and the Bulla Aurea of Andreas II., dating from 1222, and furnishes a brief commentary on both.

(12) M. Charles Petit–Dutaillis, in his Étude sur la vie et le règne de Louis VIII. (1894), was one of the first of modern historians to deprecate exaggerated estimates of the value of Magna Carta, insisting that “the barons had no suspicion that they would one day be called the founders of English liberty.”1 More recently, in his Studies and Notes supplementary to Stubbs’ Constitutional History2 he has included a brief but valuable discussion of the Great Charter.

(13) The whole of Prof. G. B. Adams’ The Origin of the English Constitution (1912) is virtually a discussion of the Great Charter, and abounds in valuable suggestions for estimating its tenor and value, and for elucidating its various clauses. It does not aim at being an exhaustive treatise, but is intended to supplement rather than supersede existing commentaries.1

I.   The Rights of the Church.

A general promise that the English church should be free was accompanied by specific confirmation of the separate charter, guaranteeing freedom of canonical election, granted on 21st November, 1214.

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. A general enacting clause leaves details to 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 liberties of a mighty nation; and the vexed question as to what classes were intended, under the description of “freemen,” to participate in these rights.1

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 freemen. John may have favoured this omission with an eye to the future repudiation of the Great Charter on the ground that it had been sealed by him under compulsion. Perhaps it was to anticipate the repetition of such arguments that the words spontanea et bona voluntate nostra were inserted in the preamble of the reissue of 1225, which had been purchased by a liberal grant.2

I.   Assessment of Reliefs.

Each “incident” had its own possibilities of abuse, and the Great Charter deals with these in turn. The present chapter defines the reliefs to be henceforth paid to John.1 Vagueness as to the amount due was a natural corollary of doubts as to whether the hereditary principle was binding: the lord took as much as he could grind from the inexperience or timidity of the youthful vassal.

A process of definition, however, was early at work: some conception of a “reasonable relief” was evolved. Yet the criterion varied.2 Henry I., when bidding against duke Robert for the throne, was willing, in words if not in practice, to accept the limits set by contemporary opinion. His Charter of Liberties promised that reliefs should be “just and lawful”—an elastic phrase, liberally interpreted by exchequer officials in their royal master’s favour. When Glanvill wrote the sums to be taken by mesne lords had been fixed; but the Crown remained free to exact higher rates. Baroniae capitales were charged relief at sums which varied juxta voluntatem et misericordiam domini regis.1

Every year, however, made for definition; custom pointed towards 100s. for a knight’s fee, and £100 for a barony. Two entries on the Pipe Roll of 10 Richard I. amusingly illustrate the unsettled practice: £100 is described as a “reasonable relief” for a barony, and yet a second entry records an additional payment by way of “fine” to induce the King to accept the sum his own roll had just declared “reasonable.”1 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.2

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,” as though the final bargain had not yet been made. Here it is, then, duly set forth and defined 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 had a “barony,” he protested that he held only five knights’ fees, and got off with the payment of £25.3 The relief of a barony was subsequently reduced from £100 to 100 marks. The date of this change, if we may rely on Madox,4 lies between the twenty–first and thirty–fifth years of Edward I.5

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,” to the private purse of the Queen Consort, collected by an official representing her at the exchequer.6

The charter here says nothing of socage or serjeanty.7 (a) Socage. The barons were not vitally interested in socage, that being, in the normal case, the tenure of humbler men.1 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 acted on quite a different view; large sums were frequently extorted by Henry III. By the reign of Edward I., however, the exchequer limited itself to one year’s rent2 for petty serjeanties, which thus fell into line with socage.3

II.   Units of Assessment.

Some explanation is required of the three groups into which Crown estates were thus divided—knights’ fees, barons’ baronies, and earls’ baronies.

III.   Liability of Church Property to “Relief.”

The Charter of John, unlike that 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.2

It was not unnatural that, when a prelate died, the Crown should demand “relief” from his successor. Thus, in 1092, Herbert Losinga paid £1000 of relief for the see of Thetford, an act of simony for which his conscience pricked him. Such demands met with bitter opposition. The Crown, unwilling to forego 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 exchequer.1

In revenge for such extortions, the historians of the day, recruited from the clerical class, have heartily commended Rufus and Flambard to the opprobrium of posterity. Henry I., in his coronation Charter, promised to exact nothing during vacancies from the demesne of the church or from its tenants.2 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.

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 the usual equipment of a medieval manor. Outlay thus required formed, in modern language, a first charge on the revenues, before the balance was appropriated by the “grantee,” or paid to the exchequer by the “committee.”

This clause expands and improves the corresponding Article of the Barons; but the obligation to restore the land and its appointments “in as good order as the revenues would bear” came to be regarded as too stringent, obliging the guardian to use up surplus revenue in repairing waste committed in the time of the deceased. Henry’s charters modified this: the guardian need only hand over the land and appointments in as good condition as he had received them.4

New methods of abusing wardship were invented after Magna Carta. The Statute of Marlborough (c. 16) gave to a ward, kept out of his heritage, an action of mort d’ancestor against a mesne lord, but not against the Crown.1 The Statute of Westminster I. (c. 48) narrates that heirs were often carried off bodily to prevent them raising actions against guardians. The whole subject was regulated in 1549 by 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.”2 This ordinance was confirmed at the Restoration by Statute 12 Charles II. c. 24.3

II.   Wardships over Vacant Sees.

The church had its own grievances. The Constitutions of Clarendon4 had stipulated that each prelate should hold his Crown land sicut baroniam; and this view ultimately prevailed. It followed that all appropriate feudal burdens affected church fiefs equally with lay fiefs. The lands of a see were, however, the property of an undying corporation (to use the language of a later age): a minority was impossible, and therefore, so it might be argued, wardships could never arise. Rufus objected to this reasoning, and devised a substitute for ordinary wardships by keeping sees long vacant, and meanwhile appropriating the revenues. Henry I., while renouncing 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.1 records “reliefs” of £30 and £20 paid by tenants of the vacant see of Lincoln for six and four knights’ fees respectively.2

John reserved his wardships in his charter to the church; and Stephen Langton thought, perhaps, it was unnecessary to press for their renunciation, since the promise not to delay elections would render such wardship unprofitable.3

The omission was supplied in 1216, when the provisions applicable to lay fiefs were extended to vacant sees, with the added proviso that church wardships should never be sold.

These provisions were 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 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.

I.   The Widow’s Share of Real Estate.

Three words are used:—dos, maritagium, and hereditas.

II.   The Widow’s Share of Personal Estate.

The present chapter says nothing of the widow’s “peculiar” or share of her deceased husband’s money and chattels; but chapter 26 secured to her the portion of one third allowed her by the existing law.

III.   Provision for the Widow’s immediate Needs.

Intricate questions might arise before the land was divided into aliquot portions. Meanwhile, temporary provision must be made for her support. This was of two kinds:

I.   The History of the Jews in England.

In the policy of the Crown towards aliens of the Hebrew race, 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 ending with the ordinance of 1290, which banished Jews from England. The details of this long story of hardship and oppression, tempered fitfully by royal clemency, can be only glanced at here. 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 new immigration led to the disarming of Jews in 1181, a measure which left them at the mercy of the Christian rabble.

When a disturbance occurred at the coronation of Richard I., on 3rd September, 1189, a general massacre took place in London. York and other towns were not slow to follow this example. The King was moved to anger, not so much by the sufferings of the Jews, as by the destruction of their bonds; for the more the Jews had, the more could be extorted from them. Richard, returning from 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,1 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 in presence of custodians, known as chirographers, who kept the keys. These were four in number, two Christians and two Jews, chosen by juries summoned for that purpose by the sheriff; and they were obliged to find sureties. Only in their presence could loans be validly contracted between Jews and Christians; and it was their duty to see such bargains reduced to writing 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 transactions were preserved, and all acquittances and assignments of debts, known from their Hebrew name as “starrs,” had to be carefully enrolled.2 Stringent rules, codified by Hubert Walter, were issued to the judges when starting on their circuit in September, 1194.3

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 gauged from a scrutiny of the contents of the archae. The King’s officials knew, 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 Jews by King’s constables (“qui turres nostras custodierunt”).1 In their dungeons, horrible engines were at hand for enforcing obedience. Such jurisdiction, however, extended legitimately over trivial debts only.2 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 1218.3 John, while despising the Jews, protected their wealth as a reservoir from which he might draw in time of need. Thus, by a charter dated 10th April, 1201, he took 4000 marks for confirming their privileges; and he obtained a similar amount after his rupture with Rome. The charter of 1201 was only a confirmation of rights already enjoyed by English Jews in virtue of the liberal interpretation put upon the terms of an earlier charter, granted by Henry I. to a particular father in Israel and 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 exempted them from all jurisdictions except those of the King’s justices and castellans.4

When a repetition of the massacres that had disgraced his brother’s coronation was threatened in 1203, John promptly ordered the mayor of London to suppress all such attempts: his promise of protection, “even though granted to a dog,” must be held inviolate.1 Protection was accorded, however, only that they might furnish a richer booty when the occasion came: suddenly John issued orders for a wholesale arrest of Jews throughout England. The most wealthy members of their community were brought together at Bristol, and, on 1st November, 1210, compelled to give reluctant consent to a tallage of the enormous sum of 66,000 marks. This amount had been fixed as the result of an exaggerated estimate of the contents of the archae, and was more than they could pay. The methods adopted by John’s castellans to extort arrears are well known, especially 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.2

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 Jews, using the stones of their houses to fortify the city walls.3 It is not to be wondered, then, that the same insurgents, in forcing on King John the demands that formed the basis of Magna Carta, included provisions against usury.

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 source of revenue, 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; 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. In 1253, a severe ordinance inflicted 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 oppressive measures, the 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 barons and claimed to act as lords of Christian tenants, enjoying wardships, escheats, and advowsons, as any Christian might have done. The scope of this enquiry excludes any detailed account of the stages through which repressive legislation passed. The Statute of Jewry, however,1 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, however, these privileges were again withdrawn, until the end came in 1290 with the issue of a decree of perpetual banishment by Edward I., who was compelled to sacrifice his royal preserve of Jews, in deference to national prejudice.

II.   Legal Position of the Jews.

All through these vicissitudes of fortune, the legal status of the Jews had remained unchanged in 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. 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. They shared the disabilities common to aliens, in a form unmitigated by the protection extended to other foreigners by their Sovereigns and by the Church. As exiles in a foreign land, exposed to attacks of a hostile mob, they were forced to rely absolutely on the arm of the King. The Jews became the mere 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,1 “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 fulfilment of the tacit understanding that 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.

I.   Protection of Crown Tenants from arbitrary Exactions.

Apart from payments such as reliefs and amercements, the occasions of which were independent of the royal will, feudal exactions were of two types: scutages and aids. By these two expedients the King could arbitrarily increase the burdens of his feudal tenants beyond the letter of the original feudal contract. Recognized usage, however, required the consent of the vassals before they were subjected to extraordinary exactions. The barons were within their rights in seeking to embody this general principle in Magna Carta, although it would appear (from comparison of the versions of 1215, 1216 and 1217) that they had difficulty in devising a proper formula to give effect to it. The present chapter attempts a rough compromise of the question at issue, by requiring consent of the Crown tenants to all scutages and also to aids other than the recognized three.1

II.   Protection of London from arbitrary Exactions.

Some attempt was made to protect the men of London from arbitrary demands: the insurgent leaders in this way discharged part of their debt to an ally with claims upon their gratitude.2 The Articles of the Barons contained important provisions affecting London; and these were embodied in the Charter in slightly altered terms.3 The present clause, for example, uses only one word, “aids,” where the 32nd Article of the Barons referred to “tallages and aids.” There is no evidence to show whether the omission had been deliberately planned, or was 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.4

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 doctrine of the nation’s right to tax itself.1 Yet the very idea of “taxation” in its abstract form, as opposed to specific tallages and exactions, 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 barons who held freeholds of the Crown, and incidentally and inadequately with those of the citizens of London. Several considerations place this beyond reasonable doubt.

(1) The terms of the restriction are by no means wide or sweeping; but precise, accurate, and narrow. The “common counsel of the realm” was required for three exactions at the most: for scutages and for extraordinary aids from feudal tenants, and possibly also for aids from the city of London: that is all. Not a word is said of other forms of taxation or other groups of taxpayers. (2) If under–tenants received, by chapter 15, protection against mesne lords, they received none against the King. The Charter affected, not national “taxation,” but feudal dues. (3) The scant measure of protection 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, while the Crown’s right to raise the “farms” of its own demesnes was reserved.1 (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 prises and custom dues 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 assembly to be convened for taking “common counsel” was a narrow body, representative neither of the ranks and classes of the community, nor of the separate national interests, nor yet of the various districts of England. Its composition was 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.2

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 doctrine of self–taxation; it primarily affected impositions levied by John, not qua sovereign but qua feudal lord. Such as it was, it was omitted, along with its corollary (chapter 14), in 1216 and subsequent reissues.

I.   Nature of the Summons.

Formal writs had to be issued, specifying the time, place, and reason of assembling, at least forty days in advance. Each of the really powerful men of the realm—archbishops, bishops, abbots, earls, and “other greater barons”—received a separate writ addressed to him individually, while the “smaller barons” were 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. “The common consent of my kingdom,” in John’s mouth, was synonymous with “the consent of my barons.”1 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 entirely homogeneous, a feudal muster of Crown–vassals.2

It is unnecessary here to examine the rival theories professing to explain the composition of the Anglo–Saxon Witenagemot, or to discuss the exact connection between that institution and the Curia Regis of the Norman Kings. As 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. 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 criticism. This was in October, 1164, when a special council was summoned to Northampton to pass judgment upon 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 holder of a barony was wont to receive, was withheld. Apparently, contemporary opinion condemned this omission.3 It is safer 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. It was in 1215 that the magnates of England formulated 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 rather as a burden incident to the possession of land.1

Mr. Round2 maintains that under John “the writ of summons suddenly assumed a very real importance,” and argues, with much plausibility, that the present chapter proves “that the Crown had been endeavouring to use the writ as a means of excluding its opponents from the assembly.” The barons, on their part, unable to assert a right to attend uninvited, “insisted that they all must be summoned.”

III. Position of “Minor Barons.”

Crown–tenants varied in power and position from the great earl, who owned the larger share of one or more counties, to the small freeholder with a few hides or acres of his own. A rough division was drawn somewhere in the midst; but the boundary was vague, and this vagueness was probably encouraged by the Crown, whose requirements might vary from time to time.3 The Crown–tenants on one side of this fluctuating line were barones majores; those on the other, barones minores. The distinction had been recognized as early as the days of Henry II.;4 but Magna Carta helped to stereotype it, and contributed to the growing tendency to confine the word “baron” to the greater men.5 The smaller barons grudged the long journeys and the expense of attending Councils whose decisions they were powerless to influence; and they found a more fitting sphere for their energies in the meetings of the shire. For these reasons, they were prepared to ignore any summonses they might receive. In this respect, in Mr. Round’s1 opinion, the feudal theory “broke down in England.”

Three distinct theories have been advanced as to the position occupied by the “minor barons” in the Common Council. (1) The duty of attendance was burdensome on the poorer Crown–tenants. It has 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.2 (2) Dr. Hannis Taylor holds an opposite opinion, reading this chapter as an attempt “to rouse the lesser baronage to the exercise of rights which had practically passed into desuetude.”3 If such an attempt had really been made, and had succeeded, the result would have been to leave no room for the future introduction of the representative principle into the national council. (3) A third theory holds that the smaller Crown–tenants were called in a representative capacity. 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.4

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 was 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 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 four best men of every village “represented” their fellows in the county court from an 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 definite relation which exists at present between the member of Parliament and his constituents. Magna Carta shows no tendency whatever to adapt this expedient of representation, even in its crudest form, to the composition of the Common Council. The councillors whose summons was enjoined were all of one type, military tenants of the Crown, each of whom was to attend in his own interests not in those of his class, still less of his district or of the community as a whole. The barons, great and small, might be present, each man for himself; but the other contributors to the King’s exchequer were ignored.1

V.   Powers 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 on behalf of the commune concilium to be consulted in the making of laws or in the performance of administrative duties by the Crown: no effort was made towards formulating any doctrine of ministerial responsibility. This assembly, narrow and aristocratic in composition, had only one right secured to it, a limited control over taxation. Even here, as we have seen, no general claim was put forward. It had no right to control the national purse: the barons merely protected 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.”1

It would, indeed, have been an evil thing for England, if this narrow baronial assembly had established a claim to tax the important classes of the community, townsmen and vassals of mesne lords, who were totally unrepresented in it. Doubtless, it would have been ready enough to substitute, if it could, a scheme of taxation that relieved Crown–tenants of the burden of scutages and aids, at the expense of their humbler neighbours.

VI.   Rights of Majorities and Minorities.

The medieval conception of 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. “No new exactions without consent of the individual taxed” was nearer the ideals of 1215 than “no taxation without consent of Parliament.” Each “baron” was summoned on his own behalf; and 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 lost 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.2

Nothing is said, however, as to the validity of a protest made by those who came and expressed disapproval. As the substance of this chapter was observed in practice (though omitted from subsequent confirmations), a precedent of the year 1221 may illustrate the interpretation put upon it by contemporary practice. A Council summoned by William Marshal had consented to a scutage, and the Bishop of Winchester was assessed at 159 marks for his knight’s fees. He refused to pay, on the ground, quite untenable by modern standards, that he had dissented from the grant. The plea was accepted by the Regent, and the exchequer adjudged bishop Peter quit of the payment.1 The incident shows how far the statesmen of the day were from realizing the principles of modern 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.2

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, 1242.3 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.”4

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,2 but in others their position was worse. Not only had they to satisfy demands of their own lord for “aids,” but part of every burden laid by the King upon that lord’s shoulders was transferred to theirs. In seeking to protect under–tenants, Magna Carta looked, not to the common council, but to the King. No mesne lord could compel his tenants to contribute to his necessities without written licence from the Crown; and the Crown was now forbidden to issue such licences except upon the usual three occasions.3 Contrast this procedure with that which affected Crown–tenants:—

(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 admitted right of private war, and was 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 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” for 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 in 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 consent to an aid of 20s. per fee on his daughter’s marriage.1 No such obligation, however, had been placed on mesne lords by Magna Carta, which had sought a practical substitute for “the common counsel of the realm” in a different direction.

(3) A check upon such exactions was sought, not in the court baron, but in the 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.2 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, sold writs to every needy lord who proposed to enrich himself at his tenants’ expense. Magna Carta forbade the two tyrants thus to combine against sub–tenants, enunciating a hard–and–fast rule which, if duly observed, would have struck at the root of the grievance: 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. Mesne lords 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.1

Henry III., however, 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 can readily be collected:

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 centred in the King’s household. 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. 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 meant intolerable delay, annoyance, and expense. The case of Richard of Anesty is often cited in illustration. His own account is 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 enormous outlays, mostly travelling expenses, he had to discharge his debts with accumulations of interest at the ruinous rate of 86⅔ per cent.1

II.   Common Pleas and Royal Pleas.

Long before 1215, 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 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 possible to appoint a bench of judges to sit permanently in some fixed spot, selected 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: “We may also say that Magna Carta gave England a capital.”1 The barons in 1215, in asking this reform, were not insisting on any startling innovation, but demanding merely the 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.2 Magna Carta confirmed the understanding that “common pleas” should not dance attendance on the King, though it did not name any one fixed place where they should be tried.3

III.   Influences of Magna Carta on genesis of Courts of Common Law.

The ultimate consequences of this reform reached further than was foreseen. Intended to remove a practical grievance, it had important 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 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 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.1

The double process, by which these two small courts separated 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 in which money was weighed and tested and the royal accounts drawn up. Many disputes or pleas affecting Crown debts had to be there decided, and a group of officials were set aside to try these. These men, called “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 were thus offshoots of the King’s household. In theory, each of these ought to have confined itself to a special class of suits—royal pleas, common pleas, and exchequer pleas respectively; but, by a process known to law–courts in all ages, each encroached on the jurisdictions and fees appropriate to the others, until they became, for most purposes, three sister courts of co–ordinate authority. They were bound to decide all suits according to the technical and inflexible rules of common law; and their jurisdiction 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 Common Pleas, like its sister Courts of King’s Bench and Exchequer, was the result of a long process of bifurcation from a common stem.

Three stages may be emphasized. (1) The earliest trace of a definite bench, set apart for common pleas, is to be found in 1178. Henry II., returning from Normandy, found that there had been irregularities. To prevent their recurrence, he effected changes, the exact nature of which is matter of dispute. A contemporary writer1 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 King’s Bench,2 but Mr. Pike3 has conclusively proved that the bench thus established was the predecessor, not of the royal bench, but rather of the bench for common pleas.

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 or business.

It must not be supposed that the arrangement thus made 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 bench then instituted may have been pulled down and set up again many times. It 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.1 On the other hand, this tribunal had in John’s reign ceased to follow the King’s movements habitually, and established itself at Westminster.2 It was in 1215 considered an abuse for John to try a common plea elsewhere.

(2) Magna Carta, in 1215, gave authoritative sanction to this understanding, and thus marks a stage in the evolution of the Court of Common Pleas.3 Ordinary pleas were no longer to follow the King.4 Young Henry renewed this promise, and his minority favoured its strict observance: a mere boy could not make progresses through the land dispensing justice as he went. Accordingly, all pleas continued for some twenty years to be heard at Westminster. The same circumstance may have temporarily arrested the process of cleavage between the two benches.

(3) About 1234, Henry began to follow the precedent, set by his ancestors, of moving through his realm with judges in his train. While one group went with him, another remained at Westminster: some method of allocating 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: 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 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. The common bench and the royal bench had become distinct.1 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.2

With royal pleas it was 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. It is doubtful whether, even in 1258, a separate royal bench had been constituted.3 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.”4 The matters here referred to were royal pleas: common pleas were tried at Westminster.

V.   Common Pleas and the Exchequer.

Records speak of the curia regis meeting for legal business ad scaccarium (that is, in the room where the business of the Exchequer of Accounts was normally transacted) long before the genesis of a separate Court of Exchequer.5

Formal sessions of the Exchequer for auditing the Sheriffs’ accounts could only be held at Westminster, where the necessary apparatus was kept; but “the Exchequer,” using that elastic word in a somewhat different sense, with much of its impedimenta of writs and tallies, would accompany the King on his progresses through the realm. In 1210, for example, the Exchequer was at Northampton; in 1266, at St. Paul’s; in 1277, at Shrewsbury; and in 1299, at York.1

Now, the Exchequer, when it sat as a Court of law, was ever willing—for a consideration—to place its potent procedure, devised for the King’s use, at the disposal of private creditors, treating “common pleas” as “exchequer pleas.” Ordinary debtors, summoned to answer for their debts before the barones scaccarii were subjected to more rapid pressure than they would have experienced elsewhere. Debtors were thus as anxious to escape the jurisdiction of the Exchequer, as creditors were to invite it.

Both before and after Magna Carta, it would appear that common pleas were sometimes tried at sessions of the Exchequer, held not only at Westminster but also during its wanderings in the King’s train. It was natural enough that defendants who found themselves hustled by the stringent Exchequer process should seek shelter under the present chapter of the Great Charter. That they did so is proved by the words of the Articuli super Cartas of 1300, which declared that no common pleas should henceforth be held in the Exchequer “contrary to the form of the Great Charter.”2

The implication of this clause of the statute of 1300 has sometimes been accepted literally.3 Magna Carta, however, in set terms at least, contains no such prohibition. If the present chapter excludes common pleas from the jurisdiction of a travelling Exchequer equally as from that of a travelling King’s bench, its words cannot be so stretched as to apply to normal sessions of the Exchequer held at Westminster. 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 fees that kept pace with the increase of business.1

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 of its officials at the royal exchequer by the occasional despatch of chosen individuals to inspect the provinces, 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,2 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 sphere of labour of these commissioners, as they passed from district to district, was the court of each shire, convened to meet them. They formed, in this way, a link between the old local popular courts and the system of royal justice. These travelling justices were of two types, Justices in Eyre and Justices of Assize respectively.

(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 Henry I. to the end of the fourteenth century.1 Their outstanding characteristics were the sweeping nature of their commissions (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 visited was left impoverished by fines and penalties. On one occasion, the men of Cornwall “from fear of their coming, fled to the woods.”2 An eyre was only resorted to at long intervals—seven years came to be the recognized term—and was a method of punishing delinquencies and miscarriages of justice and of collecting royal dues. It was not a visit from these hated Justices of Eyre that the barons in 1215 desired to have four times a year.

(b) The Justices of Assize also were 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.3 They seem to have been popular from the first, as they used a speedy and rational procedure; while the scope of their jurisdiction, although extended as their popularity increased, was limited by the 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.

At first their duties were confined to enquiries of the kind mentioned in the text, known as “assizes”; and the new species of travelling judges were hence called “Justices of Assize,” a name that 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.1 They are still “justices of assize” in an age which knows nothing of the old assizes.

II.   Nature and Origin of the 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.2

The duellum, introduced at the Norman Conquest, remained for a century the chief method in use among the upper classes for determining serious litigations. Gradually, however, it was confined to two groups of pleas, one civil and the other criminal: appeals of treason and felony on the one hand, and suits to determine title to land on the other.3 The process of restriction was carried further by Henry II., who provided for the defendant or accused party, wherever possible, an option to trial by battle. Under chapter 36 will be explained the expedient adopted for evading combat in criminal cases. The present chapter relates to certain important groups of civil pleas,4 namely, the three Petty Assizes, the frequent use of which was now insisted on, although the Grand Assize was still viewed askance, for reasons to be explained in connection with chapter 34.

III.   Aims of Magna Carta.

If the petty assizes were objects of suspicion when first invented by Henry II., public opinion, half a century later, had vindicated their wisdom. The insurgent barons in 1215 were far from demanding their abolition; their new grievance was rather that sessions of assize were not held often enough. In prescribing the way in which these assizes must be held, several points were emphasized:—(1) No inquiry of the kind was to be held elsewhere than in the county where the property was situated. This was intended to meet the convenience of litigants, of those who served on assizes, and of all concerned.1 Within two years it was seen that this provision went too far. It was more convenient to hold certain inquiries before the Bench at Westminster, and the reissue of 1217 made two modifications: (a) Assizes of darrein presentment were thereafter to be taken before “the Justices of the Bench”; (b) any novel disseisin or 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.2

(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 thus settled. Such frequency involved expense and labour out of proportion to the good effected. The Charter of 1217, accordingly, provided that circuits 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.3

(3) The Charter regulates the composition of the tribunal. Two justices appointed by the King (or by his chief justiciar) are directed to hold the assizes, along with four knights of the shire. The bench of six thus combines representatives of the Curia with local landowners. No mention is made of the twelve recognitors: nor was this necessary, as their functions and status were well known in 1215, and their verdict formed the essential feature of the procedure.1 Chapter 19 provides that the classes, from whom recognitors had to be selected, should attend in sufficient numbers “for the efficient making of judgments.”

(4) The four knights were to be “elected” by the county court (quatuor militibus . . . electis per comitatum),2 and emphasis has been laid on this provision by historians searching for ancient prototypes of modern institutions. These knights have been incautiously welcomed as county magistrates elected on a more or less extended suffrage.3

As the provisions of the reissue of 1217 are more carelessly expressed, and as in particular they contain no word implying “election,” it is sometimes assumed that a change was intended; that a step tentatively taken towards representative local government in 1215 was deliberately retraced two years later.4 “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 impressment of soldiers. 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 the chief share in the appointment. No evidence is forthcoming that any importance was attached in 1217 to the word “electus,” and its omission may have been due to inadvertence.

IV.   Effects of Magna Carta.

The stipulations of the Great Charter were not strictly followed in practice. It was not the custom under Henry III. for the Crown to grant general commissions to hold petty assizes. On the contrary, each litigant was left to make separate application to the King, who would then assign a justice by letters patent to preside over that one particular plea. Hundreds of such commissions might be issued in one year, and recognitors were separately summoned for each one of these. In 1258 the Petition of the Barons (c. 19) complained of this, and an attempt was made at organization. The Statute of Westminster II. (c. 30) ordained that two sworn justices should be assigned, before whom and none others assizes of Novel Disseisin and Mort d’ancestor (along with attaints) should be taken. They were to go on circuit three times a year, and to associate with themselves one or more of the discreetest knights of each county—instructions which fall short of the stipulations of Magna Carta.1

V.   An Erroneous View.

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.”2 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—courts baron, as they were afterwards called. 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. The county courts by this time had fallen completely under the King’s domination, and were to all intents and purposes royal courts. The present chapter is thus conclusive evidence of the triumph of the King’s justice, which was the best article in the market, and, in spite of all defects, deserved the popularity it had won.

VI.   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, 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 functions as were not inconsistent with the change from the medieval to the modern system of justice.1

For centuries it was customary for the Crown to issue to the justices of each new circuit several commissions, each conferring jurisdiction over a different class of pleas. Founding on the authority of Sir Francis Bacon, historians have been wont to enumerate five distinct commissions.2

(1) The commission of assize, already discussed, allowed them to hold petty assizes, but not (in the normal case) the grand assize.3

(2) Commission of Nisi Prius. Under Statute Westminster II. c. 30, the sheriff was directed to summon jurors to Westminster “unless at an earlier date” (nisi prius) the justices of assize should happen to arrive in the county in question. This was interpreted as creating a jurisdiction in the justices of assize to try all non–criminal pleas of the county—a jurisdiction afterwards known as “nisi prius.” Thereafter, any such plea, whether begun in King’s Bench or Common Pleas, might be determined locally in its appropriate shire as well as at Westminster. According to the opinion generally received, a separate commission of “nisi prius” was issued to each group of justices of assize, but it has recently been urged that no separate commission was required, the one jurisdiction being merely incidental to the other.1

(3) The commission of gaol delivery was, subsequently to 1299, conferred on the justices of assize, in accordance with a statute of that year,2 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, who had too often abused their authority.

(4) Commissions of Oyer and Terminer, issued spasmodically from as early a date as 1285,3 to more or less responsible individuals, were from 1329 onwards conferred exclusively on the justices of assize, who thus obtained authority4 “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 commission of assize (with or without an added commission of nisi prius) conferred full jurisdiction over civil pleas.5

(5) In the generally received opinion, a fifth commission was invariably issued to the justices, in the form of a special commission of the peace, from the reign of Edward III. onwards.6

The justices of assize, from the small beginnings referred to in John’s Great Charter, thus gathered to themselves the powers exercised originally by various sets of commissioners. They have continued for many centuries to perform the functions conferred by these various commissions, and form a characteristic part of the judicial system of England.

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.

II.   Magna Carta and Amercements.

No one could expect to pass through life (perhaps hardly through a single year) without being subjected to amercements.1 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 anticipating the conception of three estates of the realm;—commons, nobles, clergy. The “third estate” is analysed for purposes of this clause, into three subdivisions—the freeman, the villein, and the merchant.2

I.   Origin of Obligation to make Bridges.

The Norman kings seem to have based their claim to compel their subjects to maintain bridges upon the ancient tripartite obligation1 (known as the trinoda necessitas). Three duties were 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.2 The present chapter seems to be a particular application of the general principle enunciated in chapter 16. “Brigbot” required special treatment because of the prominence into which it had been forced by John.

II.   The King’s interest in the Repair of Bridges.

Part at least of John’s motives for making an oppressive use of this prerogative must be sought in his rights of falconry. 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. Several such writs of Henry III. are extant. The exact words vary somewhat, but comparison leaves no room for doubt either as to the nature of the commands conveyed or the reasons for issuing them. Addressed to sheriffs of such counties as the King was likely to visit, these letters gave instructions for 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 ‘revaying’ (ad riviandum) upon the said rivers.” The sheriff is to issue a general prohibition against any one attempting to “revaye” along the river banks, previous to the coming of the King.1 The Latin verb, for which the Old English word “revaye” or “ryvaye” is an exact equivalent, has 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.2

These writs prove that the Crown claimed a preferential right to this form of sport along the banks of certain rivers; and these “preserved” rivers were said to be “in defence” (in defenso), a phrase which occurs also in a later chapter of Magna Carta.3

Two distinct hardships were thus imposed by the King’s exercise of his rights of falconry, one negative and the other positive. Between the King’s intimation and his arrival at the indicated rivers, the sport of other people was forbidden, while whole villages had to forsake their ploughs to reconstruct otherwise useless bridges. A wise king would be careful to use such rights so as to inflict a minimum of hardship. John 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 when John at Bristol in 1209 prohibited the taking of birds throughout the entire realm of England.1

Both grievances were redressed by Magna Carta. The present chapter promised not to impose the burden on those from whom it was not legally due.2 Chapter 47, in which he agreed to withdraw his interdict from all rivers which had not been previously “in defence,” and to disafforest all forests of his own creation, was entirely omitted in the Charter of 1216;3 but in 1217 it reappeared in a new position and expressed in different words. The provision in the original chapter 47 that related to forests was relegated to the Carta de Foresta, and the other part of that chapter, relating to falconry, was 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.”

This express prohibition seems to have prevented the Crown from extending its prerogatives 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. In many cases dubiety existed as to what banks had actually been ”preserved” by Henry II., and a vague general command left in cruel uncertainty the district to be visited. Henry III. made important concessions: after the year 1241, he specified the particular river along whose banks he intended to sport, and sometimes 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 from the exercise of a right which inflicted hardships out of all proportion to the benefits conferred on the King.1

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 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. commanded the sheriff of Oxfordshire to declare that all bridges must be repaired and all fords marked out with stakes, for the crossing of the King “with his falcons” during the approaching winter.2

III.   Erroneous Interpretations.

It is not surprising that a pastime so passionately followed as falconry, should have left its traces on two chapters of Magna Carta, the full import of which has not been appreciated by commentators, partly from failure to read them together, but chiefly through the assumption that the words ad riviandum and in defenso referred to fishing rather than to fowling.3

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,4 intended to preserve public rights of fishing against encroachment. This is an error: in the Middle Ages, fishing was a means of procuring food, not a popular form of sport: to depict John and his action–loving courtiers as exponents of the gentle art of Isaac Walton is a ridiculous anachronism.

It is 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 1285.1 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;2 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. The men of York complained that Earl Richard had interfered with their rights of fishing by placing in defenso the rivers Ouse and Yore “against the tenor of Magna Carta.”3 This error, 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 1903.4

I.   Pleas of the Crown.

Pleas were royal or common according as the interests of the Crown were or were not involved. This classification has already been discussed in connection with chapter 17. 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 royal business, whether relating to judicial 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 was reserved for criminal trials held before the King’s judges. This process of contraction had been nearly completed before the accession of John.

A tendency 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.1 The central courts extended their activity over all misdeeds, however trivial, until the whole realm of criminal law fell under the description of “pleas of the Crown.” In John’s reign this process of expansion was far from complete: the words then, indeed, embraced grave criminal offences tried in the King’s great courts, but not the petty offences disposed of in the sheriff’s tourn or elsewhere.1

North of the Tweed the same phrase has had a different history: in modern Scots law its connotation is still a narrow one; and this is a 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 its zenith. The Kings of Scotland failed to crush their powerful vassals, and 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, 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.2 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.

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 grave crimes and the formal trial of the accused, for the coming of the itinerant justices took place only at intervals of about seven years. Meanwhile, preliminary steps were taken to collect and record evidence, which might otherwise be lost. The magistrate responsible for these preliminary steps was said to “keep” the pleas (custodire placita)—that is, to prevent them from passing out of mind1 while waiting for the justices who would formally “hold” or “try” or “determine” them (placitare or habere or tenere placita).

Before the reign of John, 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 King’s justices could “hold” them. The process of differentiation was accelerated 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 through the counties, contain provisions intended to keep the pretensions of sheriffs within bounds:2 they were expressly forbidden to act as justices within any counties in which they had acted as sheriffs since Richard’s coronation.3

It is safe to infer that the “trying” of royal pleas was the province from which the sheriff was thus to be 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 instructions4 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.5

The ordinance of 1194 seems to have settled subsequent practice in both respects. Sheriffs, while still free to punish petty offenders 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 approved both rules. Yet John condoned and encouraged irregularities, allowing sheriffs to meddle with pleas of the Crown, even when no coroners were present to check their arbitrary methods;1 and allowing them to give final judgments, involving loss of life or limb, without waiting for the Justices.2 He employed the same men to visit as justices the very counties they had oppressed as sheriffs. The notorious Engelard of Cigogné, branded by name in chapter 50 of Magna Carta, acted as justice in his own county of Gloucester.3

The Articles of the Barons condemned such practices; and Magna Carta, in this first of a series of clauses directed against sheriffs’ misdeeds, forbade them under any circumstances to try royal pleas.

III.   The Intention of Magna Carta.

The barons were merely demanding that the Crown should observe the rules it had laid down for its own guidance: caprice must give way to law. Sheriffs must not usurp the functions of coroners; nor must sheriffs and coroners together usurp those of King’s justiciars. John’s opponents associated these two irregularities, and may have assumed that expressly to abolish one implied an intention to abolish both. Some such supposition would explain a peculiar discrepancy between the Articles and the Charter. While Article 14 demanded redress of one grievance, Magna Carta granted redress of a different one. The earlier document required that coroners should always be associated with the sheriff when he meddled with pleas of the Crown: the Charter forbade sheriffs and coroners to “try” pleas of this description. These two provisions are the complements of each other. Magna Carta would 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 strictly enforced in Henry’s reign, soon became absolute. Thus sheriff Ralph Musard was one of seven justices of eyre who went on circuit in 1221, but he was prohibited from sharing the labours of his colleagues when they sat in Gloucestershire, where he was still sheriff.1 Under Edward I. no one could determine such pleas unless armed with a royal commission to that effect;2 and the commission would take the form either of gaol delivery, of trailbaston, or of oyer and terminer.3

IV.   An Erroneous View.

Hallam misunderstood the object of this provision. Commenting on Henry’s Charter of 1225, he declares that the “criminal jurisdiction of the Sheriff is entirely taken away by Magna Carta, c. 17.”4 This is a mistake: both before and after the granting of the Charter, the sheriff exercised criminal jurisdiction, and that of two 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 made responsible for every stage in the trial of trivial offences. He heard indictments and then condemned and punished petty offenders in a summary manner.5 Several statutes of later reigns confirmed, even while regulating, the authority of the sheriff to take indictments at his tourns,6 until this jurisdiction was transferred, by an act of the fifteenth century, to the justices of peace assembled in Quarter Sessions.1

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.”2 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.3

Professor Hearnshaw4 propounds a theory that better fits the facts. He holds that this chapter defined and consolidated the sheriff’s authority, giving him a recognized sphere of action of his own: in 1215 “leet jurisdiction came into existence. It was the jurisdiction left by the Great Charter to the sheriff in his tourn,” while chapter 42 of the reissue of 1217, forbidding the tourn to be held oftener than twice a year, marked it off “from the ordinary civil jurisdiction of the three–weekly hundred court.”

V.   Local Magistrates under John.

The urgent need of restricting the authority of the sheriffs can be abundantly illustrated from contemporary records. 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,1 and, again, some two months later, when John, at the instance of Nicholas, the papal legate, promised to restrain their violence and illegal exactions.2 Little or nothing, however, was effected; and Magna Carta, in addition to condemning specified evils, contained two general provisions: 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.3

I.   Nature of the Grievance.

When a Crown tenant died it was almost certain that arrears of scutages, incidents, or other exactions remained unpaid. The sheriff and bailiffs of the district, where deceased’s estates lay, were in the habit of seizing everything they could find on his manors, under excuse of securing the interests of their royal master. They attached and sold chattels out of all proportion to the sum actually due. A surplus would often remain in the sheriff’s hands, which he refused to disgorge.

Magna Carta sought to make such irregularities impossible, by defining the procedure to be followed. The sheriff and his bailiffs were forbidden to touch a single chattel of a deceased Crown tenant, unless they came armed with legal warrant in the form of royal letters patent vouching the existence and the amount of the Crown debt. The officers of the law were allowed to attach only as many chattels as might reasonably be expected to satisfy 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, 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 chattels, even those not so attached, until the full ascertained amount had been paid to the exchequer. Not till then could a division take place among the deceased man’s relatives or legatees.

These provisions should be read in connection with chapter 9,1 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 a deceased Crown debtor and to a living one.

II.   The Right to Bequeath.

The main interest of this chapter, for the historian of law and institutions, lies in a different direction; in the light thrown on the right of making Wills in 1215. The early law of England had 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.2 Of the law of bequests in the twelfth century it is possible to speak with greater certainty; definite principles had by that time received recognition. All testamentary rights over land or other real estate were then denied, not, as has sometimes been maintained, in the interests of the feudal lord, but rather of the expectant heir.3 Many reasons contributed to this result. For one thing, it had become necessary to prevent churchmen from using their spiritual influence to wring bequests from dying men to the impoverishment of the heir. Churchmen, in compensation as it were for the obstacles thus opposed to their thirst for the land of the dying, ultimately, but not before the reign of Henry III., made good their claim to regulate all Wills dealing with personal estate; that is money, goods, and chattels.

Under Henry II. no such right had been admitted. The Assize of Northampton (1176) directed that heirs should divide the chattels according to the provisions made in the Will, without any reference to the supervision of the bishop or his clergy. Glanvill twice gives a writ directing the sheriff to uphold the Will of a testator; but no trace of any similar writ appears in the Registers of the early years of Henry III.: “the state has had to retreat before the church.”1

This victory of the ecclesiastical courts was probably won shortly after 1215. John’s Charter makes no admission of any right of the church in the “proving” of Wills; but it does admit (in chapter 27) the church’s right to “superintend” the division of the goods of intestates, an insidious privilege, which was used as a lever during the minority of Henry (a ward of Holy See), and thus helped to give the courts Christian an excuse for deciding also as to the validity of Wills. It was apparently in John’s reign that the practice of appointing executors to carry out the Will of the deceased became general. Henry II. in his own case had entrusted this duty to individuals whom he named, but did not describe as “executors,” a word, however, used in its technical sense in King John’s Will.2

John claimed that his subjects could not make valid Wills 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.3 The King’s interference in this province seems to have been regarded as an illegal encroachment.

Magna Carta declares that all the chattels (or the residue after paying Crown debts) “shall go to the deceased” for “the executors to fulfil the will of the deceased,” but immediately adds the saving clause, that “all the chattels” means only what remains after deducting the “reasonable shares” of wife and children. This seems to exclude, by implication, the King’s right to interfere on the plea that he had not licensed a Will, while it keeps alive an ancient rule that a testator could only dispose of part of his pecunia (or personal estate), his widow and children having absolute claims to the rest.

The Charter did not define these “reasonable shares”; but custom had already fixed them at the same proportions of the whole as the law of Scotland observes at the present day. When a Scotsman dies, leaving wife and children, his movable or personal estate falls into three equal parts, known respectively as the widow’s part (or jus relictae), the “bairns’ ” part (or legitim, the legitima portio of the Roman law), and “the dead’s part.”1 If he attempts to dispose of his entire estate, wife and children may claim their legal rights, and “break the Will.” Where a wife survives, but no children (or a child and no wife), the division is into two equal portions. Magna Carta recognizes a similar division; and we know from Glanvill that, if the dead man’s Will had attempted to defeat the just claims of wife or children, the writ de rationabili parte bonorum would give them relief.2

The conception of a “dead’s part” or portion to be dispensed in charity and good works for the benefit of the deceased’s soul was, of course, in great measure due to the influence of the church, which was not unwilling to stimulate the belief that one of the best methods of affecting this was to leave money to itself. Under Henry III. the bishop of the diocese made good his claim to “prove” Wills (that is to determine whether they were valid), and to control the “executors” in carrying out the dead man’s instructions. Where the testator’s intentions were ambiguous, the “ordinary” would see to it that deceased’s soul did not suffer through giving too little to the church.

The reissue of 1216 makes no alteration on this chapter of John’s Charter: that of 1217 omits “et pueris,” probably through a clerical blunder, for the words were restored in 1225. As mere disuse does not abrogate an English statute, this provision remained in force until repealed by implication by the Wills Act of 1837.1

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 unaltered to the present day, English law has, by slow steps, the details of which are obscure, entirely changed. The rule that 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. The law of England, at the present day, does not compel a father to leave son or daughter even the proverbial shilling. The phrase “to cut off a son with a shilling,” which still lives in popular usage, may perpetuate the 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.

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 constantly from district to district. The difficulties must have been great of finding sufficient food for the retinues surrounding the King in peace or war. It was to the interests of the community that the work of government 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, the necessaries 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 time of peace. This was known as purveyance.1 Unfortunately, the conditions under which supplies might be requisitioned were left vague: the privilege was subject to abuse. In theory it was 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 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.

Magna Carta did not abolish purveyance, and placed no restrictions upon its use for the legitimate 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.2 The Articles of 13093 complained that the King’s purveyors took great quantities of corn, malt, and meat without paying even by exchequer tallies. 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 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.1 Yet in the following year a new statute2 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.

II.   Branches of Purveyance restricted by Magna Carta.

A practice tolerated because of its absolute necessity, when confined to 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. Discretionary authority was vested by John in a class of officials least qualified to use it, unscrupulous foreign adventurers hired 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.

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. Two minor aspects of purveyance came into prominence in later history.

I.   The Crown’s Claim to Property of Felons.

The Crown had established certain rights, not too well defined, in the property of criminals formally indicted and sentenced for felony. John, here as elsewhere, took advantage of the vagueness of the law to stretch prerogative to its limit. Magna Carta, therefore, attempted to define the exact boundaries of his rights. Custom gave the felon’s land to his feudal lord, and his chattels to the lord who tried him. The Crown encroached on the rights of both, claiming the real estate of felons, as against mesne lords, and their personal estate, as against lords who had jurisdiction.

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.

I.   Royal Writs and Feudal Jurisdictions.

In pleas of disputed titles to land, feudal theory gave sole jurisdiction to the lord of the fief. No principle was more absolutely established than this: no person, neither King nor Emperor, had any right to interfere, except on the one ground of failure of justice. Not even Henry II. dared to repudiate this universal rule; but he adopted expedients to render it inoperative. If Glanvill may be trusted, Henry was strong enough to obtain acquiescence in his prohibition of any plea, concerning ownership of a lay fee, being tried in a seignorial court without the licence of a royal precept.1

Henry also invented, or adopted from precedents of the Carolingian Emperors, two types of writ, the virtual effects of which were to evoke causes from the lords’ courts to his own, without too open an infringement of feudal principle.2 These were the Writ of Right and the Writ Praecipe. The Writ of Right proceeded on the principle that a lord superior was bound to see that his vassals dispensed justice to their rear vassals. When a freeholder, the tenant of a mesne lord, complained to the King that justice was refused him, the King formally commanded the remiss lord “to do full right” to the complainant, and added the threat that, unless he did so, the King himself would. The writ, known as a breve de recto tenendo, was thus issued to the owner of a feudal court; professed to afford him an opportunity of obedience by trying the plea in his court; and avoided conflict with feudal theory by justifying the proposed royal interference as “pro defectu justitiae.” It afforded, however, excellent opportunities for the insidious encroachments of the royal courts at the behest of powerful kings, who retained in their own hands the right to define what constituted a failure to do justice.3

The Writ Praecipe in its origin and antecedents differed fundamentally from the Writ of Right: it was addressed to the sheriff, not to the owner of a franchise; it was a more direct violation of feudal rights, for it made no allegation of failure of justice but simply ignored the lord’s jurisdiction, bidding the sheriff command the tenant to restore the land in question to the demandant; or else to appear before the royal court to explain his reasons for disobedience. No opportunity was afforded the mesne lord of hearing the plea. The whole procedure, almost without disguise or excuse, was an open transference of the dispute from the manorial court to that of the King.1 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.

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 an ingenious device for “evoking” a particular cause from the manorial court to the King’s court.2

The two types of writ, praecipes and writs of right, at first contrasted as alternative methods of bringing a plea under royal jurisdiction, came in time to have entirely different relations. The person to whom the preliminary writ was issued, whether sheriff or lord of a franchise court, ceased to be of much importance, when the writ had become a mere formality. The essential feature of a Writ of Right came to be that it dealt with ownership as opposed to mere possession: all royal writs that originated pleas involving title to land were then reckoned Writs of Right, which now embraced an important species of the originally opposed genus of writs praecipe.3 Thus, in one place, writs praecipe and writs of right overlapped each other.4

The motives of Henry II., in instituting his legal reforms, were probably mixed; and it is not easy to determine whether he favoured his new writs most because they really stimulated the flow of justice in the feudal courts, or because they afforded facilities for sapping their strength. While reforming 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 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 tenant’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.”1

While undermining the feudal courts, Henry was devising improved methods of dispensing justice in his own. Efforts were being successfully made, as has been shown,2 to substitute the grand assize for trial by combat; and the desire for the more rational mode of proof favoured the King’s policy of removing important litigations to his own court. The assize procedure must be taken along with the writ of right and the writ praecipe as parts of one scheme of reform.

II.   The Intention of Magna Carta.

The present chapter says nothing of the Writ of Right, but guards against the abuse of the Writ Praecipe, without attempting to interfere with its employment within its legitimate sphere, that is to say, in settling disputes as to Crown fiefs. John might keep his own court, and issue praecipes to his own tenants; but let him respect the rights of other feudal lords and not use his writs as engines of encroachment upon manorial jurisdictions. 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 them to King Henry.

The present chapter must, therefore, be regarded as one of the most reactionary in the Charter: the barons had forced John to promise a complete reversal 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.”1 That may well be; but John had already more than once rejected this proposal with vehemence. 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.2

Why did the barons, it may be asked, while attacking the writ praecipe, allow the writ of right patent to go unscathed? History is silent; but inferences may be drawn. The barons had no legal ground for condemning the legitimate use of the writ of right even when it deprived a baron or other freeman of his court. Feudal theory sanctioned this procedure, unless where it was abused; and it was difficult to define abuse of the procedure. If “pro defectu justitiae” was honestly alleged, the King had a right to interfere, well grounded in feudal law. The interference, too, even where unwarranted, was of a subtle nature, and difficult to guard against. Finally, encroachments initiated by this procedure had not been attempted before 1215 to any noticeable extent: the barons had no premonition of the new uses to which the writ of right would be put, after the channel of royal aggression by way of the praecipe had been closed. The writ of right patent was a cumbrous process, and its short day of usefulness came after the granting of Magna Carta.

III.   Expedients for evading Magna Carta.

One question remains: was this provision observed in practice? The answer is that its letter was stringently observed, but its spirit was evaded. Writs praecipe that deliberately evoked suits, other than those of Crown tenants, to the King’s courts ceased to be issued, but the sphere denied to the writ was made as narrow as possible; and methods were devised for reducing seignorial courts practically to impotence, without direct violation of the terms of the Great Charter.

IV.   Influence on later legal development.

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.2

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,1 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. “Combat” became the normal mode of deciding pleas among the upper classes. From the first, however, it seems not to have been competent for property of less than 10s. in value,2 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.

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. The wronged person, not the magistrate, was the avenger of crime; and this explains several peculiarities—why, for example, when the accused had uttered “that hateful word craven,”1 thus confessing himself vanquished and deserving a perjurer’s fate, the victorious accuser was entitled to his vengeance, even in face of a royal pardon. When Henry of Essex, constable and standard–bearer of Henry II., in 1163, had been worsted in the combat, the royal favour could not shield him, though the King’s connivance enabled him, by becoming a monk, and therefore dead in law, to escape actual death by hanging.2 At an early date the procedure resembled even more closely a legalized private revenge: “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.”3

The evils of trial by combat are obvious. From the first it was dreaded 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 statesman, endowed with the instincts of a reformer, despising obsolete and irrational modes of procedure, and devoid of reverence for tradition, trial by combat was abhorrent. He would gladly have abolished it, but followed the more subtle policy of 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.4 (1) Every facility was afforded the parties to a civil suit to forego the duellum voluntarily. Henry placed at their disposal, as a substitute, a procedure which his ancestors had 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 tenant the option of a peaceful settlement even when the demandant preferred battle. The assisa, like the jurata, applied only to civil pleas. (3) Attempts were made to discourage trial by combat in criminal pleas also, by discouraging private “appeal,” its natural prelude. The corporate voice of the accusing jury was made to supersede the individual complaint of the injured party. 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.1 (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 that forms the subject of this chapter.

II.   The Writ of Life and Limb.

The writ here referred to, better known to medieval England as the writ de odio et atia,2 was intended to protect from duel men unjustly appealed of homicide. Many an appealed man was glad to purchase escape by assuming the habit and tonsure of a monk;3 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 chancery a writ to refer this preliminary plea to the verdict of twelve recognitors. If his neighbours upheld the plea, further proceedings were quashed: the duellum was avoided.1 A similar privilege was afterwards extended to those guilty of homicide in self–defence, or of homicide by misadventure.2 Soon every man appealed of murder, whether guilty or not, alleged as matter of course that he had been accused maliciously, mere “words of common form.” Virtually, the main issue of guilt or innocence, not merely the preliminary pleas, came to be determined by the neighbours’ verdict,3 which was treated as final. No further proceedings were necessary: none were allowed. The duellum had been elbowed aside, although it was not abolished until 1819.4

III.   Subsidiary Uses of the Writ.

This inquest of life and limb has been claimed as the direct antecedent of the procedure which became so valuable a bulwark of the subject’s liberty, under the name 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.5

The opinion generally, though erroneously, held, is not without excuse; for the writ mentioned by Magna Carta was put to a subsidiary use, which bears superficial resemblance to that of the habeas corpus. 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 no right to be released on bail, a privilege allowed to those suspected of less grave crimes. This was hard where the accused was the victim of malice, or guilty only of justifiable homicide. Prisoners, in such a plight, might purchase royal writs that 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.1

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, 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,2 declares it to be iniquitous that innocent men 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 tearful friends of accused men scarcely applies to John, who listened only to suitors with long purses: the writs that liberated homicides had become a valuable source of revenue. Sheriffs were reprimanded for releasing prisoners on bail without the King’s warrant, but, in spite of heavy amercements, they continued their irregularities. Thus, in 1207, Peter of Scudimore paid to the exchequer 10 marks for setting homicides free upon pledges, without warrant from the King.3 In that year, John repeated his orders, strictly forbidding manslayers to be set free upon bail until they had received judgment in presence of the King’s justices.4

To John, then, the 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 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 in self–defence or by accident, the Crown was to be informed of this. Thereafter, from the chancery would be issued a second writ (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.

It should be noted that the provision granting gratuitous writs was not construed as forbidding payments made by an accused man for a special form of “trial.” Prof. Maitland has shown how “occasionally a person pays money to the King that he may have an inquest, and it would seem that he might still buy the right to be tried by a body constituted in some particular way. He might pay to be tried by the jurors of two hundreds, or of three hundreds, and because of local enmities such a payment may sometimes have been expedient.”1 A certain Reginald, Adam’s son, in 1222, offered one mark 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” which William de Ros, appellant’s lord, bore to Reginald’s father “vel per verum appellum.”2

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.3 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 sheriffs impanelling juries favourable to the accused, provided that inquests “shall be taken by lawful men chosen by oath (of whom two at least shall be knights) which by no affinity with the prisoners nor otherwise are to be suspected.”1 The Statute of Gloucester, on the other hand, ordered the strict confinement, pending trial, of offenders whose guilt was apparent.2 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.”3 The writ in question was in use in 1314,4 and seems never to have been expressly abolished, but to have sunk gradually into neglect, as appeals became obsolete and gaol deliveries were more frequently held.

IV.   Later History of Appeal and Battle.

The right of private accusation was restricted, not abolished, by Henry II. and his successors. It could not be denied to an injured man who was not suspected of abusing his right. Prosecutions 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 prolonged suspense; 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.5 To obviate all risk of a double prosecution, it was necessary that the Crown should delay to prosecute until the year and day had expired. This rule was followed in 1482. Such immunity from arraignment for twelve months would have produced a worse evil, by facilitating the escape of criminals from justice. After experience of its pernicious effects, the rule was condemned by the act of parliament which instituted the Star Chamber.1

This remedied the more recent evil, but revived the old injustice: the same statute enacted that acquittal should not bar appeal by the wife or nearest heir of a murdered man. Thus, once again, a man declared innocent by a jury might find himself exposed to a second prosecution. In 1817 the British public was startled to find that a long–forgotten 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 that suggested foul play. Suspicion fell on Abraham Thornton. After indictment and trial at Warwick Assizes on a charge of rape and murder, he was acquitted. The girl’s brother, William Ashford, not satisfied by what was apparently an honest verdict, tried to secure a second trial, and claimed the appeal of felony, which the judges did not 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. Lord Ellenborough had to admit his legal right to defend himself against the appeal “by his body,” and Thornton successfully foiled the attempt to force him to a second trial, as Ashford, a mere stripling, declined the unequal contest with an antagonist of athletic build.1 The unexpected revival of these legal curiosities led to their final suppression. In 1819 a Statute abolished proof by battle alike in criminal and in civil pleas: the right of appeal fell with it.2

I.   Medieval Interpretations.

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.1

(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).2

II.   Modern Interpretations.

If the chapter is read in a broad sense as prohibiting abuses of a generic kind, it is possible that more than one of its modern exponents may be substantially correct, in spite of apparent contradictions. (1) One theory would read the clause as forbidding magistrates to show undue favour to defendants of certain classes. Crown officials, under John, 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.”1 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.2

(2) On the other hand, the clause is sometimes made to prohibit undue favour shown to demandants in civil suits 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 1700.3

(3) A closely allied explanation treats the clause not as forbidding undue favour towards one party to an action, but rather as preventing bailiffs from favouring themselves. When it suited them, the King’s officials were wont to dispense with the wholesome rule that demanded “suit” or its equivalent before a plea could be entertained. This practice was by no means confined to England, and has been discussed by Dr. Brunner.4

(4) It is perhaps only another aspect of the same explanation to regard the clause as directed mainly against unfair treatment of accused men in criminal prosecutions. No one ought to be put to his “lex,” in the sense of “ordeal,” on mere grounds of vague suspicion or on the unsupported statement of a royal bailiff. After 1166, at least, the voice of an accusing jury of neighbours was a necessary preliminary, under normal circumstances, before any one could be put to the ordeal in England. Magna Carta confirmed this salutary rule: no bailiff should put any one to the ordeal except after formal indictment, due evidence of which was presented at the diet of proof.1

III.   Nature of the grievance.

As already suggested, it seems not unlikely that two or more of these theories may require to be combined in order to furnish a complete explanation of the clause under discussion. Magna Carta may well have condemned alike the practice of compelling a man to defend a civil action unsupported by suit, and of sending him to the dreaded ordeal without indictment by his neighbours.

To the criminal aspect of the matter, the Assize of Clarendon (1166) seems to supply the key. Article 4 of that ordinance prescribes the procedure for trying robbers, thieves, and murderers: “the sheriff shall bring them before the justices; and with them they shall bring two law–worthy 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;1 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 own report of the indictment “sine testibus fidelibus ad hoc inductis” was not sufficient. The “county” and the “hundred” which had heard the prisoner accused, must send representatives to bear record of the facts.2

The ordeal was a solemn affair, and every precaution must be taken against its abuse. Sheriffs or other royal bailiffs must be present, as well as members of the accusing jury. Lords of feudal courts, claiming this franchise, required apparently royal warrant for its exercise.3 Practice, however, was loose: the King’s justices would seem to have had a right to put suspects to the ordeal ex officio without the intervention of the accusing jury:4 sheriffs and others, with the Crown’s approval or connivance, exercised a similar privilege. In condemning these practices, Magna Carta would appear to have been, to some extent, modifying previous usage.5 It was not enough thereafter that indictment should precede ordeal; members of the presenting jury, who had made the accusation at the first diet, must 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 formal report must be corroborated by the testimony of representative jurors.

The Charter of 1216 repeated this provision without alteration. In 1217 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 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 to substitute for ordeal. 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 Charter of 1217, then, made it clear that the provisions applied in 1215 to ordeal were to be extended to other tests. The “ad legem” of John’s Charter became in the new version “ad legem manifestam nec ad juramentum.” A “manifest law” might well mean either ordeal or any other actual physical test such as “battle,”1 while “juramentum” points to the sworn testimony of the jury, which was slowly taking the place of the discredited ordeal.2

I.   Its Main Object.

It has been usual to read it as a guarantee of trial by jury to all Englishmen; as absolutely prohibiting arbitrary commitment; and as solemnly undertaking to dispense to all and sundry an equal justice, full, free, and speedy.2 The traditional interpretation has thus made it, in the widest terms, a promise of law and liberty and good government to every one.3 A careful analysis of the clause, read in connection with its historical genesis, suggests the need for modification of this view. It was in accord with the practical genius of the Charter that it should here direct its energies, not to the enunciation of vague platitudes, but to the reform of a specific abuse. Its object was to prohibit John from resorting to what is sometimes whimsically known in Scotland as “Jeddart justice.”4 It forbade him for the future to place execution before judgment. Three aspects of this prohibition may be emphasized.

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 measures 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.1 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.2

III. What Classes 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 villeins as free for purposes of this chapter and of chapter 1, while rejecting them for the purposes of chapter 20.1 Their right to the status of freeman has already been disallowed, and any possible ambiguity as to the present chapter is removed by the 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.”2 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 the property of villeins and even villenagium belonging to freemen.3 It was made plain beyond reasonable doubt that no villein should have lot or part in rights hailed by generations of commentators as the national heritage of all Englishmen.4

IV.   Reactionary Side of these Provisions.

To insist 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 King’s professional judges, 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. Yet, a danger lurked in these provisions; the clause was a reactionary one, tending to restore feudal privileges and feudal usage, inimical alike to the Crown and to the growth of popular liberties.1 John promised that feudal justice should be dispensed in his feudal court; 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.2

V.   Genesis of this Chapter.

The interpretation here given is emphasized by comparison 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 that protected himself and his allies from the very evils which John subsequently committed against his own barons. Longchamp conceded in Richard’s name that bishops and abbots, earls, barons, “vavassors” and free–tenants, should not be disseised of lands and chattels at the will of the King’s justices or ministers, but only by judgment of the King’s court according to the lawful customs and assizes, or by the King’s command.3

Now, the main subject of the arbitration, ending in this treaty, 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 had attempted to take vengeance upon his opponents in a manner they are not likely to have forgotten, two years later at Runnymede. John, resenting 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, without even a trial and sentence by one of his Benches, he set out with an army to punish them. He had gone as far north as Northampton when, on 28th August, 1213, Stephen Langton persuaded him to defer forcible proceedings until he had obtained a legal sentence in a formal Curia.1 That John again threatened recourse to violent methods may be inferred from the 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.”2 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 ordinary freemen would be found among the freeholders in the Court Baron.1

VI. Later History of “Judgment of Peers.”

The claim made by the barons at Runnymede was re–asserted on subsequent occasions. The phrase “judicium parium” which, probably in consequence of its use in Magna Carta, sprang into “sudden and extraordinary prominence”2 was destined to have a long and distinguished career. Mr. Harcourt3 thinks that “it was the obscurity of the chapter when reissued, the fact that it might mean so many things, which supplied the congenial soil wherein the principle of trial of peers was able to expand and grow to maturity,” when “the Charter as a whole became the Bible of the constitution.”

VII.   Erroneous Interpretations.

The tendency to vagueness and exaggeration has already been discussed. Two mistakes of unusual persistence require detailed notice.

I.   Magna Carta favours alien Merchants.

The better opinion would seem to be that this chapter applied to foreign traders from friendly states. Attempts have been made, indeed, to argue that denizens were to benefit equally with strangers: 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.1 His main argument was that certain statutes of Edward III.,2 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.

Intrinsic and extrinsic evidences combine to create a strong presumption that here Magna Carta referred chiefly, perhaps exclusively, to merchants of foreign lands.3 Denizens trading in England did not require those “safe conducts” which form the chief concession in this chapter. 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 in a previous part of the Great Charter.4 Alien merchants, however, required protection, since they had, strictly speaking, no status in the eye of the law, and held their privileges from the King.1 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 and patent rolls afford 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 Richard’s other lands, in time of war as well as peace.2

At the commencement of John’s reign, traders resident in England collectively 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.3

These arrangements were temporary. John did not intend that any 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.”4 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.

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 declaratory of 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.1 There were thus precedents for those rules for foreign traders, which have aroused the admiration of Montesquieu.2

II.   Customs and Tolls.

“Consuetudines” is in this passage used in its narrower, financial sense, relating to those duties on imports and exports still 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 whatever 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.”3 From other merchandise a share was claimed of a fifteenth or sometimes a tenth of the whole. Such tolls, if originally a species of ransom, 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.”

The King was not the only one who exacted tolls. Every town in England, and many feudal magnates, by prescriptive usage or royal grant, levied payments on goods bought or sold at 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 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 a misconception: Englishmen in the thirteenth century had formulated no far–reaching theories of the rights of the consumer, or 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 acted on their own initiative and from purely selfish motives. Rich nobles, lay and ecclesiastic, desired that nothing should prevent the foreign merchants from importing wines and rich apparel that England could not produce. John, indeed, as a consumer of continental luxuries, partially shared their views, but his selfish policy threatened to strangle foreign trade by increasing the burdens attached to it, until it ceased to be remunerative. The barons, therefore, in their own interests, not in those of foreign merchants, still less in those of native traders, demanded that the customs 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 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 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.1 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.2

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 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 citizens of Rouen or Paris than of those of York or Lincoln; their ambition was to inflict restrictions upon all rivals alike.

English traders were not yet merchant shippers and therefore did not prevent foreigners from undertaking the carrying trade between England and the Continent. Flanders bought English wool and sent back woven fabrics to rival which English looms could not aspire. Londoners, however, resold these goods at a profit and resented any attempt of aliens to encroach on their retail monopoly by coming into touch with English magnates or other consumers. Foreigners must be kept “at the wharf–head.”

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 a citizen. He was prohibited 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 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 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. At the accession of that Prince, London bought itself back into favour, and an attempt was made to define what tolls 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. 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 an increase of fifty per cent. of duty, known henceforth as parva et nova custuma. Edward I. made several attempts to exact the higher rates from denizens as well as 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.”1 Seven years later, this was confirmed by an act which 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.1 While this statute merely repeated and applied the general doctrine of the present chapter of Magna Carta, it directly infringed the provisions of chapter 13.2 Such sweeping regulations were in advance of their age and could not be carried out without revolutionizing the 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.3 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.4

I.   The Royal Forests.

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 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 law prevailed to the exclusion of the common law which ruled outside. The forests with their inhabitants had been omitted from the process by which the rest of England had been assimilated under a uniform lex terrae: this was the root from which many evils grew.

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. Within the imaginary line the King’s power was supreme, and he used it frankly for the preservation of beasts of the chase. The men who happened to dwell there were subject to 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 prerogative, customary rules grew up, obtained authoritative recognition, and hardened into laws which set some limits to royal caprice. Before John’s time the forest code, as set forth in the Assize of Woodstock, had taken its place as a definite system of law, distinct from common law and canon law alike.1

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 Canute on the subject, admitted to be authentic, enacted merely that every man should have his own hunting, while the King should have his.1 The rights of the Crown, however, were strengthened 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 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.2 Henry I. formulated the forest law, and it was probably due to him that “forest” acquired its 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, 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, Henry II. built on foundations laid by his grandfather. John’s attitude to the forest laws was not consistent. The monk of Barnwall relates how, in 1212, John allowed some relaxation in the severity of the forest code.3 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.4

III.   Forest officials.

The local magistrates who administered the rest of England were excluded from 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.1 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 law.2 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.”3 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.4 “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.”5

The office was one of authority and 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, paid large sums to the warden, and recouped themselves by extortions from the dwellers in their bailiwicks.1 These unpaid foresters were expressively said to “live upon the country.” They may be classified in various ways, as, into riding and walking foresters, 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.2

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 gentleman, 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; just as the office of coroner had been instituted in the reign of Richard 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, but local landowners whose unpaid magisterial services were required only on special occasions. They were responsible directly to the King, 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.1 (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),2 and generally upon everything owned by private individuals likely to harm the beasts of the forest.3 (c) The Agistors are mentioned in the same clause of the Assize of Woodstock which mentions the Regarders. Four knights were appointed 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 to feed on 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.4

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 from being destroyed or wasted: these formed shelter for the 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 the taking of 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,1 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.2 (2) Courts of Inquisitions. When a serious trespass was discovered, a special court was, in early days, immediately summoned. The foresters and verderers conducted the inquiry, but it was their right and duty to assemble the men of the neighbouring townships to help them. In strictness, all 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. In one district at least (Somerton) the definition of beasts of the chase extended to the ordinary hare; and we read3 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. Some alleviation of the burden 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 judgment was reserved for the justices. (3) 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 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,” and “of the venison.” These eyres came to be known as “Courts of Justice Seat,” but not until long after the reign of John. No juries were present; the justices punished offenders already convicted by juries at a lower court.

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,1 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 that 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 was held in June to make arrangements for excluding cattle from the King’s woods when the deer were fawning, but at this the presence of the agistors were not required.1

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. 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 “swain,” on the supposition that courts so called were resorted to by 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, once a royal forest, 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 to the grantee, while 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, but varied 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 obtained a franchise over the chase and the royal beasts it contained.1 (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.2 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.3 (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.”4 In practice it chiefly embraced hares and foxes.5 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, passing gradually into the modern Game Laws.6 Dr. Stubbs held, apparently, too narrow a conception of warren, when he read it in its modern sense of “a rabbit warren.”7 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 might inflict cruel injustice on the common people;8 but their power was less than that of foresters, as they were dependent on the common law. The forest code did not apply even to royal warrens.9

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 were greater out of all proportion. Not only were the interests of forest–dwellers sacrificed to the royal hunting, not only were legal fines rendered trebly burdensome by the galling and wasteful manner of their collection; but the men who paid them were victims of illegal exactions in addition. These grievances may be considered under seven heads:—

I. The “Security” or legal Sanction.

The procedure devised for enforcing the Charter was crude: John conferred upon twenty–five of his enemies a legal right to organize rebellion, whenever in their opinion he had broken any 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 into practice, the “sovereignty,” or supreme power in England, would have been split into two. John would have held the sceptre only until his opponents declared that he had broken the Charter, when, by his own previously–granted mandate, it would pass to the twenty–five barons forming what has been variously styled a “Committee of Remonstrance and Constraint” or a “Committee of Rebellion.”3

The procedure for redressing grievances is described in some detail; the wronged party must make known his case to four barons of the twenty–five, who would then make it known to the King, and ask redress. If John refused or unduly delayed, compulsion might be used. On the matter of undue delay, the Articles of the Barons said “within a reasonable time to be determined in the Charter.” The Charter did determine this, naming forty days. Compulsion might take any form, except violence against the person of the King, or of his wife or children.

II.   Minor details.

Although the whole expedient seems 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.

III.   Relations to Contemporary Theory.

Clumsy and impracticable as the whole scheme appears to modern eyes, it was quite in accord with medieval theory. The conception of a relation founded upon contract between lord and vassal lies at the root of feudalism. If either party glaringly broke the terms of the compact, the other was justified in repudiating the relationship, but he must observe due formalities. Diffidatio, intimated to his lord, must precede any attempt of the vassal to redress his wrongs by force. The barons at Runnymede, having complied with this preliminary, had for the moment ceased to owe fealty to John. In reserving power to appoint an Executive Committee (even if this be regarded as implying a right of legalized rebellion), as a condition precedent to a renewal of allegiance, they moved in the direction of legal restraint as opposed to revolutionary violence. The right here recognized by John, likely as it might be to lead to hostilities, was in theory and intention an honest effort to obviate war by recourse to the nearest approximation to constitutional action then available. It was, further, an attempt to substitute united action of the body of feudal tenants (communa totius terræ) for the individual vassal’s right of private judgment, claimed and sometimes exercised in that age, on the European continent, and actually confirmed in 1222 by Andreas II. of Hungary by his Bulla Aurea.1

The expedient contained in this chapter is a logical deduction from the vassal’s right of defiance as a prelude to private war against a lord who has wronged him. It was no innovation, but something found by the barons in feudal law.2 Foreign parallels have been found for it, not only in the more anarchic procedure of the Hungarian Bulla Aurea, but also in the institutions of Aragon and elsewhere.1 When the baronial leaders in 1263 performed diffidatio, they echoed the words of this chapter, “salva persona regis, reginae et liberorum suorum.”2

This chapter has been acclaimed as embodying for the first time the idea that formed “the true corner stone of the English Constitution,”3 namely, the right to compel an erring King to bow to a body of law that lies outside his will. There is much to be said for this view. It is quite consistent, however, to combine an appreciation of the value of this conception, with an admission of the defective and clumsy nature of the machinery by which a first attempt was made to realize it.4

IV.   Modern Criticism.

Until the last twenty–five years or so, commentators were wont to credit the framers of Magna Carta with anticipating most of the cardinal principles of the modern Constitution. In combating such exaggerations, it would not be unnatural to lay emphasis on the extent to which the machinery of this chapter is condemned by the standards of the nineteenth century. Yet it is well to steer a middle course, neither praising the men of 1215, nor blaming them for failing to achieve the impossible.

The faults of the scheme, whether viewed from the side of modern theory or of modern practice, are obvious. It was a violent 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.5 It is instructive to note a few of its other defects in detail.

(1) The scheme challenged hostility by its want of moderation. 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 before a tribunal in which his opponents sat as judges.1 The scheme was thus repugnant to loyal Englishmen, who cherished a respect for the monarchy. No King would submit tamely to remain a sovereign, whose “sovereignty” existed on sufferance of his enemies. The powers thus conferred 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 as “the Mad Parliament,” because of the violence of its measures.

(2) Rebellion, even where morally justified, is necessarily illegal; to attempt to map out for it a legitimate sphere of action is to attempt the logically impossible. The barons 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. The powers of the twenty–five, a body which received no proper organization, were those of aggression rather than of administration. Viewed in this modern light, the claims of the barons to constructive statesmanship rank 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, nervous under this sword of Damocles, would lose all power of initiative, while the committee, powerful to reduce him to impotence, would be powerless 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, the efficiency of the committee would have been neutralized in either of two contingencies: if the barons composing it disagreed among themselves, or, if the King refused to surrender. Not a step to restrain the King could legally be taken, until he had 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 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: the barons sought the best method of turning royal promises into laws which succeeding Kings must obey. In attempting this, Magna Carta moved along lines that were radically wrong;1 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” 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; but they met with no success. After half a century of unrest, a settlement seemed as far distant as before. The dangers of schemes like those of 1215, 1244, and 1258 are 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. The principle was slowly established that the sovereign could perform no single act of prerogative except through the agency of a particular officer or organ of the royal household; 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 credit of starting the constitution on its right line of development is in great measure due to Edward 1.2

V.   Failure of the Scheme.

Almost before John’s Charter had been engrossed and sealed, the futility of its “sanction” was recognized. Each side grew suspicious and demanded new “sanctions” not contained in the Charter.