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to supplement, the works of Coke and Richard Thomson, published respectively in 1642 and 1829, and now hopelessly out of date.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

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

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

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

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

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

Such shallow views of history unnecessarily belittle the magnitude and inevitable nature of the sequence of causes and effects upon which great issues really depend. The compelling logic of events forces a way for its own fulfilment, independent of the caprices, aims and ambitions of individual men. The incidents of John’s career are the occasions, not the causes, of the great national movement which laid the foundations of English liberties. The origin of Magna Carta lies too deep to be determined by any purely contingent or accidental phenomena. It is as unwise as it is unnecessary to suppose that the course of constitutional development in England was suddenly and violently 4wrested into a completely new channel, merely because of the incapacity or misdeeds of the temporary occupant of the throne. The source of the discontent fanned to flame by John’s oppressions must be sought in earlier reigns. The genesis of the Charter cannot be understood apart from its historical antecedents, and these are inextricably bound up with the whole story how England grew to be a nation.

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

These two problems, each forming the counterpart of the other, necessarily arise in the history of every nation, and in every age; the problem of order, or how to found a central government strong enough to suppress anarchy, and the 5problem of freedom, or how to set limits to an autocracy threatening to overshadow individual liberty. Neither of these problems can ever be ignored, not even in the twentieth century; although to-day the accumulated political experience of ages has enabled modern nations, such at least as are sufficiently educated in self-government, to thrust them into the background, out of view. Deep political insight may still be acknowledged in Æsop’s fable of Jupiter and the frogs. King Log proves as ineffective against foreign invasion as he is void of offence to domestic freedom; King Stork secures the triumph of his subjects in time of war, but devours them in time of peace. All nations in their early efforts to obtain an efficient government have to choose between these two types of ruler—between an executive, harmless but weak; and one powerful enough effectively to direct the business of government at home and abroad, but ready to turn the powers entrusted to him for the good of all, to his own selfish uses and the trampling out of his subjects’ liberties.

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

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

The main plot, then, of early English history, centres 6round the attempt to found a strong monarchy, and yet to set limits to its strength. With this main plot subordinate plots are interwoven. Chief among these must be reckoned the necessity of defining the relations of the central to the local government, and the need of an acknowledged frontier between the domains of Church and State. On the other hand, all that interesting group of problems connected with the ideal form of government, much discussed in the days of Aristotle as in our own, is notably absent, never having been forced by the logic of events upon the mind of medieval Europe. Monarchy was apparently assumed as the only possible scheme of government; while the relative merits of aristocracy and democracy, or of the much-vaunted constitution known as “mixed,” were not canvassed, since these forms of constitution were not within the sphere of practical politics.

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

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

The attention of the most casual student is arrested by the consideration of the difficulties which surrounded the English nation in its early struggles for bare existence. The great problem was, first, how to get itself into being, and thereafter how to guard against the forces of disintegration, which strove without rest to tear it to pieces again. The dawn of English history shows the beginning of that long slow process of consolidation in which unconscious reason played a deeper part than human will, whereby many discordant tribes and races, many independent provinces, were crushed together into something bearing a rude likeness to a united nation. Many forces converged in achieving this result. The coercion of strong tribes over their weaker neighbours, the pressure of outside foes, the growth of a body of law, and of public opinion, the influence of religion in the direction of peace, all 7helped to weld a chaos of incongruous and warring elements together.

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

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

Thereafter, the strength of its monarchy was what rendered England unique in medieval Europe. Three great kings in especial contributed, by their ability and indomitable power of will, to this result—William the Conqueror, Henry Beauclerk, and Henry Plantagenet. In a sense, the work of all three was the same, namely, to build up the central authority against the disintegrating effects of feudal anarchy; but the policy of each was 8necessarily modified by changing times and needs. The foundations of the whole were laid by the Conqueror, whose character and circumstances combined to afford him an opportunity unparalleled in history. The difficulties of his task, and the methods by which he carried it to a successful issue, are best understood in relation to the nature of the opposition he had to dread. Feudalism was the great current of the age—a tide formed by many converging streams, all flowing in the same direction, unreasoning like the blind powers of Nature, carrying away and submerging every obstacle in its path. In other parts of Europe—in Germany, France, and Italy, as in Scotland—the ablest monarchs found their thrones undermined by this feudal current. In England alone the monarchy made headway against the flood. William I. wisely refrained from any mad attempt to stay the torrent; but, while accepting it, he quietly subjected it to his own purposes. He carefully watched and modified the tendencies making for feudalism, which he found in England on his arrival, and he profoundly altered the feudal usages and rights which his followers transplanted from the Norman soil. The special expedients used by him for this purpose are well known, and are all closely connected with his crafty policy of balancing the Anglo-Saxon basis of his rule against the imported Norman superstructure, and of selecting at his own discretion such elements as suited him in either. He encouraged the adoption or intensification in England of feudalism, considered as a system of land tenure and as a system of social distinctions based on the possession of land; but he successfully endeavoured to check the evils of its unrestrained growth in its other equally important aspects, namely, as a system of local government seeking to be independent of the Crown, and as a system of jurisdiction. As a political system, it was always a subject of suspicion to William, for he viewed it in the light of his double experience in Normandy as feudal lord and feudal vassal.

9William’s policy was one of balancing. His whole career in England was characteristically inaugurated by his care to support his claim to the throne on a double basis. Not content to depend merely on the right of conquest, he insisted on having his title confirmed by a body claiming to represent the old Witenagemot of England, and he further alleged that he had been formally named as successor by his kinsman, Edward Confessor, a nomination strengthened by the renunciation of Harold in his favour. Thus, to his Norman followers claiming to have set him by force of arms on his throne, William might point to the form of election by the Witan, while for his English subjects, claiming to have elected him, the presence of the foreign troops was an even more effective argument. Throughout his reign, his plan was to balance the old English laws and institutions against the new Norman ones, with himself as umpire over all. Thus he retained whatever suited him in Anglo-Saxon customs. Roger of Hoveden tells us how, in the fourth year of his reign, twelve of the subject English from each county—noble, wise, and learned in the laws—were summoned to recite on oath the old customs of the land.^[1] He retained, too, the old popular moots or meetings of the shire and hundred as a counterpoise to the feudal jurisdictions; the fyrd or militia of all free men as a set-off to the feudal levy; and such of the incidents of the old Anglo-Saxon tenures of land as met his requirements.

Thus the subject English, with their customs and ancient institutions, were used as expedients for modifying the excesses of feudalism. William, however, did not shrink from innovations where these suited his purpose. The great earldoms into which England had been divided, even down to the Norman Conquest, were abolished. New earldoms were indeed created, but on an entirely different basis. Even the great officers, subsequently known as Earls Palatine, always few in number, never attained either to the extent of territory or to the independence 10of the Anglo-Saxon ealdormen. William was chary of creating even ordinary earls, and such as he did create soon became mere holders of empty titles of honour, while they found themselves ousted from all real power by the Norman vicecomites or sheriffs. No English earl was a “count” in the continental sense (that is, a real ruler of a “county”). Further, no earl was allowed to hold too large an estate within his titular shire; and William, while compelled to reward his followers’ services with great possessions, was careful that these should be split up in widely scattered districts of his Kingdom. Thus the great feudatories were prevented from consolidating their resources against the Crown.

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

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

During the reign of William II. (1087-1100) the constitution made no conspicuous advance. The foundations had been laid; but Rufus was more intent on his hunting and enjoyments, than on the deeper matters of statecraft. Some minor details of feudal organization were doubtless settled and defined in these thirteen years by the King’s Treasurer, Ralph Flambard; but the extent to which he 11innovated on the practice of the elder William is matter of dispute. On the whole, the reign must be considered as a time of rest between two periods of advance.

Henry I. (1100-35) took up, with far-seeing statesman’s eye and much vigour, the work of consolidation. His policy shows an advance upon that of his father. William had contented himself with controlling and curbing the main vices of feudalism, while he played off against it the English native institutions. Henry went further, and introduced within the Curia Regis itself a new class of men representing a new principle of government. The great offices of state, previously held by men of baronial rank, were now filled with creatures of Henry’s own, men of humble birth, whose merit had raised them to his favour, and whose only title to power lay in his goodwill. The employment of this strictly professional class of administrators was one of the chief contributions made by Henry to the growth of the constitution. His other great achievement was the organization of the Exchequer, primarily as a source of royal revenue, but soon found useful as a means of making his will felt in every corner of England. For this great work he was fortunate to secure in Roger, Bishop of Salisbury, the help of a man who combined genius with painstaking ability. At the Exchequer, as organized by the King and his minister, the sheriff of each county twice a year, at Easter and at Michaelmas, rendered account of every payment that had passed through his hands. His balance was adjusted before all the great officers of the King’s household, who subjected his accounts to close scrutiny and criticism. Official records were drawn up, one of which—the famous Pipe Roll of 1130,—is extant at the present day. As the sums received by the sheriff affected every class of society in town and country, these half-yearly audits enabled the King’s advisers to scrutinize the lives and conduct of every one of importance in the land. These half-yearly investigations were rendered more effective by the existence at the Exchequer of a great record of every landed estate in England. With this the sheriffs’ 12returns could be checked and compared. Henry’s Exchequer thus found one of its most powerful weapons in the great Domesday Survey, the most enduring proof of the statesmanship of the Conqueror, by whose orders and under whose direction it had been compiled.

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

Henry at his death in 1135 seemed to have carried nearly to completion his congenial task of building a strong monarchy on the foundations laid by William I. Much of his work was, however, for a time undone, while all of it seemed in imminent danger of perishing for ever, because he left no male heir of his body to succeed him on the throne. His daughter’s claims were set aside by Stephen, the son of the Conqueror’s daughter, and a cadet of the House of Blois, to whom Henry had played the indulgent uncle, and who repaid his benefactor’s generosity by constituting himself his heir. From the first moment of his reign, Stephen proved unequal to the task of preserving the monarchy intact from the wild forces that beat around the throne. His failure is attributed by some to his personal characteristics, and by others to the defective nature of his title, combined with the presence of a rival in the field in the person of his cousin, Henry’s daughter, the ex-Empress 13Matilda. The nineteen years of anarchy which nominally formed his reign did nothing—and worse than nothing—to continue the work of his great ancestors. The power of the Crown was humbled, and England was almost torn in fragments by the selfish claims of rival feudal magnates to local independence.

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

Of the numerous steps taken by Henry Plantagenet to complete the work of the earlier master-builders of the English monarchy, only a few need here be mentioned. Ascending the throne in early manhood, he brought with him a statesman’s instinct peculiar to himself, together with the unconquerable energy common to his race. He rapidly overhauled every existing institution and every branch of administration. The permanent Curia Regis was not only restored to efficient working order, but was improved in each one of its many aspects—as the King’s household, as a financial bureau, as the administrative centre of the entire kingdom, and as the special vehicle of royal justice. The Exchequer, which was indeed originally merely the Curia in its financial aspect, received the re-organization so urgently needed after the terrible strains to which it had been subjected amid the quarrels of Stephen and Matilda. The Pipe Rolls were revived and various minor reforms in financial matters effected. All local courts (both the old popular courts of hundred and county, and also the feudal jurisdictions) were brought under the more effective control of the central government by various expedients. Chief among these was the restoration of the system of Eyres with their travelling justices (a natural supplement to the restoration of the Exchequer), whose visits were now placed on a more regular and systematic basis. Equally important were the King’s personal care in the selection of fit men for the duties of sheriff, the frequent punishments and removal from office of offenders, and the rigid insistence upon efficient training and uprightness in all who enjoyed places of authority under the Crown. Henry was strong enough 14to employ more substantial men than the novi homines of his grandfather without suffering them to be less devoted to the interests of their Prince. Yet another expedient for controlling local courts was the calling up of cases to his own central feudal Curia, or before those benches of professional judges, the future King’s Bench and Common Pleas, forming as yet merely committees of the Curia as a whole.

Closely connected with the control thus established over the local courts was the new system of procedure instituted by Henry. The chief feature was that each litigation must commence with an appropriate royal writ issued from the Chancery. Soon for each class of action was devised a special writ appropriate to itself, and the entire procedure came to be known as "the writ process"—an important system to which English jurisprudence owes both its form and the direction of its growth. Many reforms which at first sight seem connected merely with minute points of legal procedure were really fraught with immense purport to the subsequent development of English law and English liberties. A great future was reserved for certain expedients adopted by Henry for the settlement of disputes as to the possession or ownership of land, and also for certain expedients for reforming criminal justice instituted or systematized by a great ordinance, issued in 1166, known as the Assize of Clarendon.^[2] A striking feature of Henry’s policy was the bold manner in which he threw open the doors of his royal Courts of Law to all-comers, and provided there—always in return for hard cash, be it said—a better article in name of justice than could be procured elsewhere in England, or for that matter, elsewhere in Europe. Thus, not only was the Exchequer filled with fines and fees, but, insidiously and without the danger involved in a frontal attack, Henry sapped the strength of the great feudal magnates, and 15diverted the stream of litigants from the manorial courts to his own. The same policy had still another result in facilitating the growth of a body of common law, uniform throughout the length and breadth of England, and opposed to the varying usages of localities or even of individual baronial courts.

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

By these expedients, along with many others, Henry raised the English monarchy, always in the ascendant since the Conquest, to the very zenith of its power, and left to his sons the entire machinery of government in perfect working order, combining high administrative efficiency with great strength. Full of bitter strifes and troubles as his reign of thirty-five years had been, nothing had interfered with the vigour and success of the policy whereby he tightened his hold on England. Neither the long bitter struggle with Becket and the Church, ending as it did in Henry’s personal humiliation, nor the unnatural warfare 16with his sons, which involved the depths of personal suffering to the King and hastened his death in 1189, was allowed to interfere with his projects of reform in England.

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

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

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

Every age has to face, in its own way, a group of difficulties essentially the same, although assuming such different names as Home Rule, Local Government, or Federation. Problems as to the proper nature of the local authority, the extent of the powers with which it may be safely entrusted, and its relation to the central government, require constantly to be solved. The difficulties involved, always great, were unspeakably greater in an age when practically no administrative machinery existed, and when rapid communication and serviceable roads were unknown. A lively sympathy is excited by a consideration of the almost insuperable difficulties that beset the path of King Edgar or King Ethelred, endeavouring 17to rule from Winchester the distant tribes of alien races inhabiting Northumbria, Mercia, and East Anglia. If such a king placed a weakling as ruler over any distant province, anarchy would result and his own authority might be endangered along with that of his inefficient representative. Yet, if he entrusted the rule of that province to too strong a man, he might find his suzerainty shaken off by a viceroy who had consolidated his position and then defied his king. Here, then, are the two horns of a dilemma, both of which are illustrated by the course of early English history. When Wessex had established some measure of authority over rival states, and was fast growing into England, the policy at first followed was simply to leave each province under its old native line of rulers, who now admitted a nominal dependence on the King who ruled at Winchester. The early West-Saxon Princes vacillated between two opposite lines of policy. Spasmodic attempts at centralization alternated with the reverse policy of local autonomy. In the days when Dunstan united the spiritual duties of the See of Canterbury to the temporal duties of chief adviser to King Edgar, the problem of local government became urgent. Dunstan’s scheme has sometimes been described as a federal or home-rule policy—as a frank surrender of the attempt to control exclusively from one centre the mixed populations of Northern and Midland England. His attempted solution was to loosen rather than to tighten further the bond; to entrust with wide powers and franchises the local viceroy or ealdorman in each district, and so to be content with a loose federal empire—a union of hearts rather than a centralized despotism founded on coercion. The dangers of such a system are the more obvious when it is remembered that each ealdorman commanded the troops of his own province.

Cnut’s policy has been the subject of much discussion, and has sometimes apparently been misunderstood. The better opinion is that, with his Danish troops behind 18him, he felt strong enough to reverse Dunstan’s tactics and to take a decisive step in the direction of centralization or unity. His provincial viceroys (jarls or earls, as they were now called, rather than by their old vague title of ealdormen), were appointed on an entirely new basis. England was to be mapped out into new administrative districts in the hope of obliterating the old tribal divisions. Each of these was to be placed under a viceroy having no hereditary or dynastic connection with the province he governed. In this way, Cnut sought to avert the process by which the country was slowly breaking up into a number of petty kingdoms.

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

Among the expedients adopted by the Norman Duke for reducing his feudatories in England into subjection to the Crown, one of the most important was the total abolition of the old provinces formerly governed by separate ealdormen or jarls. Leaving out of account the exceptional franchises, afterwards known as palatine earldoms, the real representative of the King in each group of counties was now the sheriff or vicecomes, not the earl. This Latin name of vicecomes is misleading, since the officer so-called in no sense represented the earl or comes, but acted as the direct agent of the Crown. The name, “viceroy,” more accurately describes his actual position and functions, since he was directly responsible to the Crown, and independent of the earl. The problem of local government, however, was not eradicated by the substitution of the sheriff for the earl as chief magistrate in the county; it only took a different form. The sheriffs 19themselves, when relieved from the earl’s rivalry and control, tended to become too powerful. If they never dreamed of openly defying the royal power, they at least thwarted its exercise indirectly, appropriated to their private uses items of revenue, pushed their own interests, and punished their own enemies, while acting in the name of the King. The office threatened to become territorial and hereditary,^[3] and its holders aimed at independence. New checks had to be devised to prevent this new local authority from again defying the central power. New safeguards were found, partly in the organization of the Exchequer and partly in the device of sending periodically on circuit itinerant justices, who took precedence of the sheriff, heard complaints against his misdeeds in his own county, and thus enabled the Crown to keep a watchful eye on its representatives. By such measures, Henry I. seemed almost to have solved these problems before his death; but his success was apparent rather than real.

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

With the accession of Henry II. the problem was, thanks to his energy and genius, more satisfactorily solved, or at least forced once more into the background. That great ruler was strong enough to prevent the growth of the hereditary principle as applied to offices either of the Household or of local magistrates. The sheriffs were frequently changed, not only by the drastic and unique measure known as the Inquest of Sheriffs, but systematically, and as a normal expedient of administration. For the time being, the local government was kept in proper subjection to the Crown; and gradually the problem solved itself. The power of the sheriffs tended in the 20thirteenth century to decrease, chiefly because they found important rivals not only in the itinerant judges, but also in two new officers first heard of in the reign of Richard I., the forerunners of the modern Coroner and Justice of the Peace respectively. All fear that the sheriffs as administrative heads of districts would assert practical independence of the Crown was thus at an end. Yet each of them still remained a petty tyrant over the inhabitants of his own bailiwick. While the Crown was able and willing to avenge any direct neglect of its own interests, it was not always sufficiently alert to avenge wrongs inflicted upon its humble subjects. The problem of local government, then, was fast losing its pressing importance as regards the Crown, and taking a new form, namely, the necessity of protecting the weak from unjust fines and oppressions inflicted on them by local magistrates. The sheriff’s local power was no longer a source of weakness to the monarch, but had become an effective part of the machinery which enabled the Crown to levy with impunity its always increasing taxation.

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

The national Church had been, from an early date, in tacit alliance with the Crown. The friendly aid of a long line of statesman-prelates from Dunstan downwards had given to the Anglo-Saxon monarchy much of the little strength it possessed. Before the Conquest the connection between Church and State had been exceedingly close, so much so that no one thought of drawing a sharp dividing line between. What afterwards became two separate entities, drifting more and more into active opposition, were at first merely two aspects of one whole—a whole which comprehended all classes of the people, considered both in their spiritual and their temporal relations. Change necessarily came with the Norman Conquest, when the English Church was brought into closer contact with Rome, and with the ecclesiastical ideals prevailing on the 21Continent. Yet no fundamental alteration resulted; the friendly relations which bound the English prelates to the English throne remained intact, while English churchmen continued to look to Canterbury, rather than to Rome, for guidance. The Church, in William the Conqueror’s new realm, retained more of a national character than could be found in any other nation of Europe.

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

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

Substantially friendly relations between their successors in the offices of King and Archbishop remained, notwithstanding Anselm’s condemnation of the evil deeds of Rufus. Anselm warmly supported that King’s authority over the Norman magnates, even while he resented his evil practices towards the Church. He contented himself with a dignified protest (made emphatic by a withdrawal of his presence from England) against the new exactions upon the English prelates, and against the long intervals during which vacancies remained unfilled. Returning at Rufus’s death from a sort of honourable banishment at Rome, to aid Henry in maintaining order and gaining peaceable accession to the throne, Anselm found himself compelled by his conscience and the recent decrees of a Lateran Council, to enter on the great struggle of the investitures. Church 22and State were gradually disentangling themselves from each other; but in many respects the spiritual and temporal powers were still indissolubly locked together. In particular, every bishop was a vassal of the king, holder of a Crown barony, as well as a prelate of Holy Church. By whom, then, should a bishop be appointed, by the spiritual or by the temporal power? Could he without sin perform homage for the estates of his See? Who ought to invest him with ring and crozier, the symbols of his office as a shepherd of souls? Anselm adopted one view, Henry the other. A happy compromise, suggested by the King’s statesmanship, healed the breach for the time being. The ring and crozier, as badges of spiritual authority, were to be conferred only by the Church, but each prelate must perform fealty to the King before receiving these symbols, and must do homage thereafter, but before he was actually anointed as bishop. Canonical election was nominally conceded by the King; but here again a practical check was devised for rendering this power innocuous. The members of the cathedral chapter were confirmed in the theoretic right to appoint whom they pleased, but such appointment must be made in the King’s Court or Chapel, thus affording the powerful monarch full knowledge of the proceedings, and an opportunity of being present and of practically forcing the selection of his own candidate.

The Church gained much in power during Stephen’s reign, and deserved the power it gained, since it remained the only stable centre of good government, while all other institutions crumbled around it. It was not unnatural that churchmen should advance new claims, and we find them adopting the watchword, afterwards so famous, “that the Church should be free,” a vague phrase doubtless, destined to be embodied in Magna Carta. The extent of immunity thus claimed was never clearly defined, and this vagueness was probably intentional, since an elastic phrase might be expanded to keep pace with the ever-growing pretensions of the Church. Churchmen made it clear, however, that they meant it to include at the least 23two principles—those rights afterwards known as “benefit of clergy,” and “canonical election” respectively.

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

IV. Richard I. and John.

Henry II. before his death had fulfilled the task of restoring order, to which destiny had called him. To effect this, he had brought to perfection machinery of government of rare excellence, and equally well adapted for purposes of taxation, of dispensing justice, and of general administration. Great as was the power for good of this new instrument in the hands of a wise and justice-loving king, it was equally powerful for evil in the hands of an arrogant and unjust, or even of a careless monarch. All the old enemies of the Crown had been crushed. 24Local government, as now systematized, formed a source of strength, not of weakness; while the Church, whose highest offices were now filled with officials trained in Henry’s own Household and Exchequer (ecclesiastics in name only, differing widely from saintly monks like Anselm), still remained the fast friend of the Crown. The monarchy was strong enough to defy any one section of the nation, and no inclination was yet apparent among the estates of the realm to make common cause against the throne.

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

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

25In his absence new methods of taxation were devised, and new classes of property subjected to it; in especial, personal effects—merchandise and other chattels—only once before (in 1187 for the Saladin tithe) placed under contribution, were now made a regular source of royal revenue. The isolated precedent of Henry’s reign was gladly followed when an extraordinarily heavy burden had to be borne by the nation to produce the ransom exacted for Richard’s release from prison. The very heartiness with which England made sacrifices to succour the Monarch in his hour of need, was turned against the tax-payers. Richard showed no gratitude; and, being devoid of all kindly interest in his subjects, he argued that what had been paid once might equally well be paid again. Thus he formed exaggerated notions of the revenue to be extracted from England. From abroad he sent demand after demand to his overworked justiciars for ever-increasing sums of money. The chief lessons of the reign are connected with this excessive taxation, and the consequent discontent which prepared the way for the new grouping of political forces under John.

Some minor lessons may be noted:

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

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

26(3) Richard is sometimes said to have inaugurated the golden age of municipalities. Undoubtedly many charters still extant bear witness to the lavish hand with which he granted, on paper at least, franchises and privileges to the nascent towns. John Richard Green finds the true interest of the reign not in the King’s Crusades and French wars, so much as in his fostering care over the growth of municipal enterprise. The importance of the consequences of such a policy is not diminished by the fact that Richard acted from sordid motives—selling privileges, too often of a purely nominal character, as he sold everything else which would fetch a price.

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

As is usual at the opening of a new reign, the discontented hoped that a change of sovereign would bring some relief. The excessive taxation of the late reign had been the result of exceptional circumstances. It was expected that the new King would revert to the less burdensome scale of his father’s financial measures. Such hopes were quickly disappointed. John’s needs proved as great as Richard’s, and the money he obtained was used for purposes that appealed to no one but himself. The excessive exactions demanded both in money and in service, coupled with the 27unpopular uses to which these were put, form the keynote of the whole reign. They form also the background of Magna Carta.

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

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

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

John failed, as usual, to recognize the merits of abler men, and saw in the death of his great Justiciar and Archbishop only the removal of an unwelcome restraint, and the opening to the Crown of a desirable piece of patronage. He prepared to strain to the utmost his rights 28in the election of a successor to the See of Canterbury, in favour of one of his own creatures, a certain John de Grey, already by royal influence Bishop of Norwich. Unexpected opposition to his will was offered by the canons of the Cathedral Church, who determined on a bold policy, namely, to turn their nominal right of canonical election into a reality, and to appoint their own nominee, without waiting either for the King’s approval or the co-operation of the suffragan bishops of the Province, who, during the last three vacancies, had put forth a claim to participate in the election, and had invariably used their influence on behalf of the King’s nominee. Reginald, the sub-prior, was secretly elected by the monks, and hurried abroad to obtain confirmation at Rome before the appointment was made public. Reginald’s vanity prevented his keeping his pledge of secrecy, and a rumour reached the ear of John, who brought pressure to bear on the monks, now frightened at their own temerity, and secured de Grey’s appointment in a second election. The Bishop of Norwich was actually enthroned at Canterbury, and invested by the King with the temporalities of the See. All parties now sent representatives to Rome. This somewhat petty squabble benefited none of the original disputants; for the astute Innocent III. was quick to see an opportunity for papal aggrandisement. Both elections were set aside by decree of the Papal Curia, and the emissaries of the various parties were coerced or persuaded to appoint there and then in the Pope’s presence the Pope’s own nominee, a certain Cardinal, English-born, but hitherto little known in England, Stephen Langton by name, destined to play an important part in the future history of the land of his birth.

John refused to view this triumph of papal arrogance in the light of a compromise—the view diplomatically suggested by Innocent. The King, with the hot blood common to his race, and the bad judgment peculiar to himself, rushed headlong into a quarrel with Rome which he was incapable of carrying to a successful issue. The 29details of the struggle, the interdicts and excommunications hurled by the Pope, and John’s measures of retaliation against the unfortunate English clergy, need not be discussed, since they do not directly affect the main plot which culminated at Runnymede.

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

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

Some incidents of the autumn of 1212 require brief notice, as well from their own inherent interest as because they find an echo in the words of Magna Carta. Serious trouble had arisen with Wales. Llywelyn (who had married John’s natural daughter Joan, and had consolidated his power under protection of the English King) now seized the occasion to cross the border, while John was preparing his schemes for a new continental expedition. 30The King changed his plans, and prepared to lead his troops to Wales instead of France. A muster was summoned for September at Nottingham, and John went thither to meet them. Before tasting meat, as we are told in Roger of Wendover’s graphic narrative, he hanged twenty-eight Welsh hostages, boys of noble family, whom he held as sureties that Llywelyn would keep the peace.^[5]

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

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

These events of September, 1212, rudely shook John out of the false sense of security in which he had wrapped himself a few months earlier. In the Spring of the same year, he had still seemed to enjoy the full tide of prosperity; and he must have been a bold prophet who dared to foretell, as Peter of Wakefield did foretell, the speedy 31downfall of the King—a prophecy the main purport of which (although not the details), was actually accomplished.^[8]

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

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

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

32John’s humiliation did not stop even here. Two days later he resigned the Crowns of England and Ireland, and received them again as the Pope’s feudatory, promising to perform personal homage should occasion allow. Such was the price which the King was now ready to pay for the Pope’s active alliance against his enemies at home and abroad, the former submission having merely bought off the excommunication. John hoped thus to disentangle himself from his growing difficulties, and so to be free to avenge himself on his baronial enemies. The surrender of the Crown was embodied in a formal legal document which bears to be made by John, “with the common council of our barons.” Were these merely words of form? They may have been so when first used; yet two years later the envoys of the insurgent barons claimed at Rome that the credit (so they now represented it) for the whole transaction lay with them. Perhaps the barons did consent to the surrender, thinking that to make the Pope lord paramount of England would protect the inhabitants from the irresponsible tyranny of John; while John hoped (with better reason as events proved) that the Pope’s friendship would increase his ability to work his evil will upon his enemies. In any case, no active opposition or protest seems to have been raised by any one at the time of the surrender. This step, so repugnant to later writers, seems not to have been regarded by contemporaries as a disgrace. Matthew Paris, indeed, writing in the next generation, describes it as “a thing to be detested for all time”; but then events had ripened in Matthew’s day, and he was a keen politician rather than an impartial onlooker.^[10]

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 33Gospels to cherish and defend Holy Church, to restore the good laws of Edward, and to render to all men their rights, repeating practically the words of the coronation oath. In addition, he promised to make reparation for all property taken from the Church or churchmen. This oath, with its accompanying promise, was the condition on which he was to be absolved, provisionally by Langton, and more formally by a legate, to be sent from Rome specially for that purpose.

V. The Years of Crisis, 1213–15.

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

His projected campaign in Poitou would require all the levies he could raise. More than once John demanded, and his barons refused, their feudal service. Many excuses were put forward. At first they declined to follow a King who had not yet been fully absolved. Yet when Archbishop Stephen, on 20th July, 1213, removed the papal censure from John at Winchester, after exacting 34promises of good government, the northern barons still refused. Their new plea was that the tenure on which they held their lands did not compel them to serve abroad. They added that they were already exhausted by expeditions within England.^[11]

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

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

On 25th August, after John had set out with his mercenaries to punish by force of arms the refusal of his northern magnates to follow him to the Continent, as he held them bound to do in terms of their feudal obligations, Stephen Langton held a meeting with the great men of the south. Many bishops, abbots, priors and deans, together with some lay magnates of the southern counties, met him at St. Paul’s, London. The ostensible object of this assembly was to determine 35what use the Archbishop should make of his power to grant partial relaxation of the interdict still casting its blight over England—which could not be finally lifted until the legate arrived with fuller powers. If we may believe Roger of Wendover, more important business was transacted in the King’s absence. Stephen reminded the magnates that John’s absolution had been conditional on a promise of good government, and as a standard to guide them in judging what such government implied, he produced a copy of Henry I.’s Charter of Liberties. All present swore to “fight for those liberties, if it were needful, even unto death.” The Archbishop promised his help, “and a confederacy being thus made between them, the conference was dissolved.”^[14]

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

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

John apparently continued his journey as far north as Durham, but returned to meet the new papal legate 36Nicholas, to whom he performed the promised homage and repeated the formal act of surrender in St. Paul’s on 3rd October.^[16] Having thus completed his alliance with the Pope, he was confident of worsting his enemies in France and England. As most, if not all, of the great magnates were against him, he saw that it would be well to strengthen his position by support of the class beneath them in the feudal scheme of society. Perhaps it was this that led John to broaden the basis of the national assembly. The great Council which met at Oxford on 15th November, 1213, was made notable by the presence, in addition to the Crown tenants, of representatives of the various counties. The sheriffs, in the words of the King’s writs, were to cause to assemble all knights already summoned (that is, the Crown tenants) and four discreet men of each county “ad loquendum nobiscum de negotiis regni nostri.” Miss Norgate^[17] lays stress on the fact that these writs were issued after the death of the great Justiciar Geoffrey Fitz-Peter, and before any successor had been appointed. John, she argues, acted on his own initiative, and is thus entitled to the credit of being the first statesman to introduce representatives of the counties into the national assembly. The importance of this precedent need not be obscured by the selfish nature of the motives to which it was due. Knights who were tenants of mesne lords (Miss Norgate says “yeomen”) were invited to act as a counterpoise to the barons. This innovation anticipated the line of progress afterwards followed by de Montfort and Edward I. Compared with it, the often-praised provisions of chapter 14 of Magna Carta must be regarded as antiquated and even reactionary.

In the early spring of 1214, John considered his home troubles ended, and that he was now free to use against France the coalition formed by his diplomacy. He went abroad early in February, leaving Peter des Roches, 37the unpopular Bishop of Winchester, to keep the peace as Justiciar, and to guard his interests, in concert with the papal legate. Although deserted by the northern barons, John relied partly on his mercenaries, but chiefly on the Emperor Otto and his other powerful allies. Fortune, always fickle, favoured him at first, only to ruin all his schemes more completely in the end. The crash came on Sunday, 27th July, 1214, when the King of France triumphed over the allies at the decisive battle of Bouvines. Three months later, John was compelled to sign a five years’ truce with Philip, abandoning all pretensions to recover his continental dominions.

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

Even while abroad, John had not relaxed his efforts to wring exactions from England. Without consent or warning, he had imposed a scutage at the unprecedented rate of three marks on the knight’s fee. Writs for its collection had been issued on 26th May, 1214, an exception being indeed allowed for tenants personally present in the King’s army in Poitou. The northern barons, who had already refused to serve in person, now refused likewise to pay the scutage. This repudiation 38was couched in words particularly bold and sweeping; they denied liability to follow the King not merely to Poitou, but to any part of the Continent.^[18]

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

It seems probable that, after John’s retiral, a conference of a more private nature was held at which, under cloak of attending the Abbey for prayer, a conspiracy against John was sworn. Roger of Wendover gives a graphic account of what happened. The magnates came together “as if for prayers; but there was something else in the matter, for after they had held much secret discourse, there was brought forth in their midst the charter of King Henry I., which the same barons had received in London ... from Archbishop Stephen of Canterbury.”^[20] A solemn oath was taken to withdraw their fealty (a threat actually carried into effect on 5th May of the following year), and to wage war on the King, unless he granted their liberties; and a date—soon after Christmas—was fixed for making their formal demands. Meanwhile they separated to prepare for war. The King also realized that a resort to arms was imminent. While 39endeavouring to collect mercenaries, he tried unsuccessfully to sow dissension among his opponents. In especial, he hoped to buy off the hostility of the Church by a separate charter which he issued on 21st November. This professes to be granted “of the common consent of our barons.” Its object was to gratify the Church by turning canonical election from a sham into a reality. The election of prelates, great and small, should henceforward be really free in all cathedral and conventual churches and monasteries, saving to the Crown the right of wardship during vacancies. John promised never to deny or delay his consent to an election, and conferred powers on the electors, if he should do so, to proceed without him. The King was bitterly disappointed in his hope that by this bribe he would bring over the national Church from the barons’ side to his own.

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

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

On 15th January, John re-issued the Charter to the Church, and demanded a renewal of homage from all his subjects. The sheriffs in each county were instructed to 40administer the oath in a specially stringent form; all Englishmen must now swear to “stand by him against all men.” Meanwhile emissaries were dispatched by both sides to Rome. Eustace de Vesci, as spokesman of the malcontents, asked Innocent, as overlord of England, to compel John to restore the ancient liberties, and claimed consideration on the ground that John’s surrender to the Pope had been made under pressure put on the King by them—all to no effect. John thought to propitiate the Pope by taking the cross, a politic measure (the date of which is given by one authority as 2nd February, and by another as 4th March), which would also serve to protect him against personal violence, and which afforded him, as is well illustrated by several chapters of Magna Carta, a fertile excuse for delay in remedying abuses. In April, the northern barons, convinced that the moment for action had arrived, met in arms at Stamford, and after Easter (when the truce had expired) marched southward to Brackley, in Northampton. There they were met, on 27th April, by the Archbishop and the Marshal, as emissaries from the King, who demanded what they wanted. They received in reply, and took back with them to John, a certain schedule, which consisted for the most part of ancient laws and customs of the realm, with an added threat that if the King did not immediately adhibit his seal the rebels would constrain him by seizing his castles, lands, and goods.^[21]

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

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 41with an oath that he would never grant them such liberties, whereby he would make himself a slave.^[23]

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

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

Apparently no price was paid for this charter; but John doubtless expected in return the grateful support of the Londoners, exactly as he had expected the support of churchmen when he twice granted a charter in their favour. In both instances he was disappointed. Next day he made, probably as a measure of delay, an offer of arbitration to the barons. In the full tide of military preparations, he issued a writ in these words: "Know that we have conceded to our barons who are against us that we shall not take or disseise them or their men, nor go against them per vim vel per arma, unless by the law of our land, or by the judgment of their peers in curia nostra, until consideration shall have been made by four whom we shall choose on our part and four whom they shall choose on their part, and the lord 42Pope who shall be oversman over them"—words worthy of careful comparison with those used in chapter 39 of Magna Carta. The offer could not be taken seriously, since it left the decision of every vital issue virtually to the Pope, whom the barons distrusted.^[26]

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

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

John found himself, for the moment, without power of effective resistance; and, probably with the view of gaining time rather than of committing himself irretrievably to any abatement of his prerogatives, agreed to meet his opponents. As a preliminary to this, on 8th June he issued a safe-conduct for the barons’ representatives to meet him at Staines within the three days following. This was apparently too short notice, as on 10th June, John, now at Windsor, granted an extension of the time and safe-conduct 43till Monday, 15th June. William the Marshal and other envoys were dispatched from Windsor to the barons in London with what was practically a message of surrender. The barons were told that John “would freely accede to the laws and liberties which they asked,” if they would appoint a place and day for a meeting. The intermediaries, in the words of Roger of Wendover,^[29] "without guile carried back to the barons the message which had been guilefully imposed on them"—implying that John meant to make no promises, except such as were insincere. Yet the barons, immenso fluctuantes gaudio, fixed as the time of meeting the last day of the extended truce, Monday, 15th June, at a certain meadow between Staines and Windsor, known as Runnymede.

VI. Runnymede, and after.

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

Dr. Stubbs,^[30] maintaining that the whole baronage of England was implicated in these stirring events, gives a masterly analysis of its more conspicuous members into four great groups: (1) the Northumbrani or Norenses of the chroniclers, names famous in the northern counties, who had been the first to raise the standard of open revolt, and retained the lead throughout; (2) the other nobles from all parts of England, who had shown themselves ready from an early date to co-operate with the Northerners—“the great baronial families that had been wise enough to cast away the feudal aspirations of their forefathers, and the rising houses which had sprung from the ministerial nobility”; (3) the moderate party 44who, ready to worship the rising sun, deserted John after London had joined the rebels, including even the King’s half-brother (the Earl of Salisbury), the loyal Marshal, Hubert de Burgh, and other ministers of the Crown, whose names may be read in the preamble to the Charter; and (4) the tools of John’s misgovernment, mostly men of foreign birth, tied to John by motives of interest as well as by personal loyalty, since their differences with the baronial leaders lay too deep for reconciliation, most of whom are branded by name in Magna Carta as for ever incapable of holding office in the realm. These men of desperate fortunes alone remained whole-hearted on John’s side when the crisis came.^[31]

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

Unfortunately, the vagueness of contemporary accounts prevents us from reproducing with certainty the progress of negotiations on that eventful 15th of June and the few days following. Some inferences, however, may be drawn from the words of the completed Charter itself and from those of several closely related documents. One of these, the Articles of the Barons,^[32] is sometimes supposed to be identical in its terms with the Schedule which had been already presented to the King’s emissaries, at Brackley, on the 27th of April.^[33] It is more probable, however, that during the seven eventful weeks which had since elapsed, the original demands had been somewhat modified. It is not unlikely that the interval had been employed in making the terms of the suggested agreement more full and specific. 45The Schedule of April was probably only a rough draft of the Articles as we know them, and these formed in their turn the new draft on which the completed Charter was based. Articles and Charter are alike authenticated with the impress of the King’s great seal, an indisputable proof that the terms of each of them actually received his official consent.

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

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

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

To justify these inferences, a more detailed examination of the evidence available will be necessary. The earliest 46meeting between John and the baronial leaders, all authorities are agreed, took place on Monday, 15th June, probably in the early morning. The barons undoubtedly came to the conference provided with an accurate list of those grievances which they were determined to have redressed. On the previous 27th of April the rebels had sent a written Schedule to the King, along with a demand that he should signify his acceptance by affixing his seal;^[35] they are not likely to have been less fully prepared on 15th June.

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

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

47Likely enough, it followed closely the words of the baronial Schedule; but it may have contained some slight modifications in favour of the Crown. One such, at least, was inserted, apparently as an afterthought (on the intervention of the King perhaps, or one of his friends); articles 45 and 46, as originally conceived, have been subsequently connected by a rude bracket, and a qualifying proviso added which practically bestowed on the Archbishop the powers of an arbitrator to determine whether both articles should be altered in favour of the Crown or no.^[37] The entire document is in a running hand, and appears to have been rapidly though carefully written. Its engrossment upon parchment with a quill pen must have occupied several hours; but a diligent copyist would not find it beyond his powers to complete the task in one day.

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

Blackstone^[39] thinks that the barons on that day renewed their oaths of fealty and homage. It is more probable that, until John had actually carried out the more pressing reforms promised in Magna Carta, they refused formally 48to swear allegiance, undertaking, however, in the hearing of the two archbishops and other prelates, that they would keep the peace and furnish security to that effect in any form that John might name, except only by delivery of their castles or of hostages.^[40]

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

It has been taken for granted by many historians that the peace was finally concluded, and the Great Charter actually sealed and issued on the 15th, not on the 19th.^[43] The fact that all four copies of Magna Carta still extant bear this date seems to have been regarded as absolutely conclusive on this point. Experts in diplomatics, however, have long been aware that elaborate charters and other documents, which occupied a considerable time in preparation, usually bore the date, not of their actual execution, but of the day on which were concluded the transactions of which they form the record. Legal instruments were thus commonly ante-dated (as it would be reckoned according to modern legal practice). Thus it is far from safe to infer from Magna Carta’s mention of 49its own date that the great seal was actually adhibited on the 15th June.

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

50A comparison between the two documents shows few changes of importance in the tenor.^[45]

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

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

The same Friday which thus saw the completion of negotiations saw also the issue of the first batch of letters of instructions to the various sheriffs, telling them that a firm peace had been concluded, by God’s grace, between John 51and the barons and freemen of the kingdom, as they might hear and see by the Charter which had been made, and which was to be published throughout the district, and firmly observed. Each sheriff was further commanded to cause all in his bailiwick to make oath according to the form of the Charter to the twenty-five barons or their attorneys, and further, to see to the appointment of twelve knights of the county in full County Court, in order that they might declare upon oath all evil customs requiring to be reformed, as well of sheriffs as of their servants, foresters, and others.^[49] This was held to apply chiefly to the redress of forest grievances.

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

Even after the settlement arrived at on Friday, some minor points of dispute remained. The barons refused to be satisfied without substantial security that the reforms and restorations agreed on would be carried out by the King; they demanded that both the city of London and the Tower of London should be left completely under their control as pledges of John’s good faith, until 15th August, or longer, if the reforms had not then been completed. John obtained a slight modification of these demands; he 52surrendered the city of London to his opponents, as they asked; but placed the Tower in the neutral custody of the Archbishop of Canterbury. These conditions were embodied in a supplementary treaty, which describes itself as Conventio facta inter Regem Angliae et barones ejusdem regni.^[50] If the barons distrusted John, he was equally distrustful of them, demanding the security they had promised for fulfilment of their part of the original compact. He now asked a formal charter in his favour that they would observe the peace and their oaths of homage, which they point-blank refused to grant. The King appealed to the prelates without effect. The archbishops, with several suffragans, however, put a formal protest on record of the barons’ promise and subsequent refusal to keep it.^[51]

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

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

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

If the rebel leaders expected to arrive at a permanent settlement of their disputes when they came to meet the King on the morning of the 15th day of June, it must have been evident to all before the 23rd, that John only made the bargain in order to gain time and strength to break it. Three weeks, indeed, before John granted Magna Carta, he had begun his preparations for its repudiation. In a letter of 29th May, addressed to the Pope, there may still be read his own explanation of the causes of 54quarrel, and how he urged, with the low cunning peculiar to him, that the hostility of the rebels prevented the fulfilment of his vow of crusade. In conclusion, he expressed his willingness to abide by the Pope’s decision on all matters at issue.

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

Langton and the bishops still struggled to restore harmony. The 16th July was fixed for a new conference. John did not attend; but it was probably at this Council that in his absence a papal bull was read conferring upon a commission of three—the Bishop of Winchester, the Abbot of Reading, and the legate Pandulf—full powers to excommunicate all “disturbers of the King and Kingdom.” No names were mentioned, but these powers might clearly be used against Langton and his friends. The execution of this sentence was delayed, in the groundless hope of a compromise, till the middle of September, when two of the commissioners, Pandulf and Peter of Winchester, demanded that the Archbishop should publish it; and, on his refusal, they forthwith, in terms of their papal authority, suspended him from his office. Stephen left for Rome, and his absence at a critical juncture proved a national 55misfortune. The insurgents lost in him, not only their bond of union, but also a wholesome restraint. His absence must be reckoned among the causes of the royalist reaction soon to take place. After his departure, a papal bull arrived (in the end of September) dated 24th August. This is an important document in which Innocent, in the plainest terms, annuls and abrogates the Charter, after adopting all the facts and reproducing all the arguments furnished by the King. Beginning with a full description of John’s wickedness and repentance, his surrender of England and Ireland, his acceptance of the Cross, his quarrel with the barons; it goes on to describe Magna Carta as the result of a conspiracy, and concludes, “We utterly reprobate and condemn any agreement of this kind, forbidding, under ban of our anathema, the aforesaid king to presume to observe it, and the barons and their accomplices to exact its performance, declaring void and entirely abolishing both the Charter itself and the obligations and safeguards made, either for its enforcement or in accordance with it, so that they shall have no validity at any time whatsoever.”^[57]

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

Meanwhile, the points in dispute had been submitted to the rude arbitrament of civil war, in which the first notable 56success fell to King John in the capture, by assault, of Rochester Castle on 30th November. The barons had already made overtures to Louis, the French King’s son, to whom they promised as a reward for his help, yet not perhaps with entire sincerity, the crown of England. Towards the end of November, some seven thousand French troops arrived in London, where they spent the winter—a winter consumed by John in marching from place to place meeting, on the whole, with success, especially in the east of England. John’s best ally was the Pope, who had no intention of allowing a French Prince to usurp the throne of one who was now his humble vassal. Gualo was dispatched from Rome to Philip, King of France, forbidding his son’s invasion, and asking rather protection and assistance for John as a papal vassal. Philip, anxious to meet the force of the Pope’s arguments with some title to intervene, of more weight than the invitation of a group of rebels, replied by an ingenious string of fictions. He endeavoured to find defects in John’s title as King of England, and to argue that therefore John was not in titulo to grant to the Pope the rights of an overlord. Among other arguments it was urged that John had been convicted of treason while Richard was King, and that this sentence involved forfeiture by the traitor of all rights of succession to the Crown. Thus the Pope’s claim of intervention was invalid, while Prince Louis justified his own interference by some imagined right which he ingeniously argued had passed to him through the mother of his wife.

John had not relied solely on papal protection. A great fleet, collected at Dover to block Louis with his smaller vessels in Calais harbour, was wrecked on 18th May, 1216. The channel thus cleared of English ships, the French Prince, setting sail on the night of the 20th May, landed next morning without opposition. John, reduced to dependence on mercenaries, did not dare oppose his landing. Gualo, now in England, on 28th May excommunicated Louis by name, and laid London under interdict. Such thunderbolts 57had now lost their blasting power by frequent repetition, and produced no effect whatever. On 2nd June, Louis entered London amid acclamations, and marched against John at Winchester, which he reached on 14th June, after John had fled. Ten days later, the ancient capital of Wessex with its castles surrendered. Next day, the French Prince attacked Dover, whose brave defender, Hubert de Burgh, after some months of stubborn resistance, obtained a truce, on 14th October, in order that the garrison might communicate with the King. Before Hubert’s messengers could reach him, John was dying. During these months, when the verdict of war was going against him in the south, he had been acting in the north strenuously, and not without success. The issue still trembled in the balance. A royalist reaction had begun. The insolence of the French troops caused desertions from the barons.

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

I. The Immediate Causes of the Crisis.

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

There is absolutely no necessity to seek in such trivial causes the explanation of a great movement, really inevitable, the antecedents of which were deeply 59rooted in the past. The very success of Henry Plantagenet in performing the great task of restoring order in England, for effecting which special powers had been allowed to him, made the continuance of these powers to his successors unnecessary. From the day of Henry’s death, if not earlier, forces were at work which only required to be combined in order to control the licence of the Crown. When the battle of order had been finally won—the complete overthrow of the rebellion of 1173 may be taken as a crucial date in this connection—the battle of liberty had, almost necessarily, to be begun. The clamant problem of the hour was no longer how to prop up the weakness of the Crown; but rather how to place restrictions on its unbridled strength.

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

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

The feudal grievances most bitterly resented may be ranged under one or other of two heads—increase 60in the weight of feudal obligations and infringement, of feudal jurisdictions. The Crown, while it exacted from its tenants the fullest measure of services legally exigible, interfered persistently at the same time with those rights and privileges which had originally balanced the obligations. The barons were compelled to give more, while they received less.

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

Each group of feudal grievances—those connected with the increase of feudal obligations, and those connected with the curtailment of feudal immunities—requires special and detailed treatment.^[62] To each class a double interest attaches, since the resentment aroused by both formed so vital an element in the spread of that spirit of determined resistance to King John, which led to the winning of Magna Carta, and since, further, an intimate knowledge 61of the exact nature of these grievances throws a flood of light on many otherwise obscure clauses of the Great Charter, and enables us to estimate how far the promised remedies were ultimately carried into practice in later reigns.

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

The lower orders were by no means exempt from the increased taxation which proved so galling to the feudal tenants. When John, during his quarrel with Rome, repaid each new anathema of the Pope by fresh acts of spoliation against the national Church, the sufferings of 62the clergy were shared by the poor. In confiscating the goods of the monasteries, he destroyed the chief provision for poor-relief known to the thirteenth century. The alienation of the affections of the great masses of lower-class Englishmen thus effected was never wholly undone, even by the reconciliation of John with the Pope. Notwithstanding the completeness and even abjectness of John’s surrender to Rome, he took no special pains to reinstate himself in the good graces of the Church at home. Innocent, secure at the Lateran, had issued his thunderbolts; and John’s counter-strokes had fallen, not on him, but on the English clergy—from the prelate to the parish priest, from the abbot to the humblest monk. The measures taken, in 1213 and afterwards, to make good to these victims some part of the heavy losses sustained, were quite inadequate. The interests of the Church universal were often widely different from those of the national Church, and such diversity was never more clearly marked than in the last years of the reign of John.

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

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

All things were thus ripe for rebellion, and even for united rebellion; an opportunity only was required. Such 63an opportunity came in a tempting form in 1214; for the King had then lost prestige and power by his failure in the wars with France. He had lost the confidence of his subjects by his quarrel with Rome, and he failed to regain it by his reconciliation. He had lost the friendship of the national Church. His unpopularity and vacillating nature had been thoroughly demonstrated. Finally he had himself, in 1191, when plotting against his absent brother Richard, successfully attacked and ousted the Regent Longchamp from office, thus furnishing an example of rebellion, and of successfully concerted action against the central government.

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

The progressive party consisted mainly of the heads of the more recently created baronial houses, men trained in the administrative methods of Henry II., who desired merely that the system of government they knew should be properly enforced and carried out to its logical conclusions. They demanded chiefly that the King should conduct the business of the Exchequer and Curia according to the rules laid down by Henry II. Routine and order under the new system were what this party desired, and not a return to the unruly days of Stephen. Many of the innovations of the great Angevin had now been loyally and finally accepted by all classes of the nation; and these accordingly found a permanent resting-place in the provisions of the Great Charter. In temporary co-operation with 64this party, the usually rival party of reaction was willing to act for the moment against the common enemy. There still existed in John’s reign magnates of the old feudal school, who hoped to wrest from the weakened hand of the King some measure of feudal independence. They had indeed accepted such reforms as suited them, but still bitterly opposed many others. In particular, they resisted the encroachments of the royal courts of law which were gradually superseding their private jurisdictions. For the moment, John’s crafty policy, so well devised to gain immediate ends, and so unwise in the light of subsequent history, combined these two streams, usually ready to thwart each other, into a united opposition to his throne. Attacked at the same moment by the votaries of traditional usage and by the votaries of reform, by the barons, the trading classes, and the clergy, no course was left him but to surrender at discretion. The movement which culminated at Runnymede may thus best be understood as the resultant of a number of different but converging forces, some of which were progressive and some reactionary.

II. The Crown and Feudal Obligations.

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

The precise relations of the Norman Conquest to the growth of feudalism in England are complicated, and have formed the subject of much controversy. The view now 65generally accepted, and with reason, is that the policy of William the Conqueror accelerated the process in one direction, but retarded it in another. Feudalism, regarded as a system of government, had its worst tendencies checked, if not eradicated, by the great upheaval that followed the coming of Duke William; feudalism, considered as a system of land tenure, and as a social system, was, on the contrary, formulated and developed. It is mainly as a system of land tenure that it falls here to be considered. Originally, the relationship between lord and tenant, dependent upon the double ownership of land (of which each was, in a different sense, the proprietor), implied obligations on both sides. The lord gave protection, while the tenant owed services of various sorts. It so happened, however, that, with the changes wrought by time, the legal obligations of the lord ceased to be of much importance, while those of the vassal became more and more burdensome. The tenant’s obligations varied in kind and in extent with the nature of the tenure. It is difficult to frame an exact list of the various tenures formerly recognized as distinct in English law: partly because the classical authors of different epochs, from Bracton to Blackstone, contradict each other; and partly because of the obscurity of the process by which these tenures were gradually differentiated. The word “tenure” originally meant “a holding” of any sort. Sir William Blackstone,^[64] after explaining the dependent nature of all real property in England, thus proceeds: “The thing holden is therefore styled a tenement, the possessors thereof tenants, and the manner of their possession a tenure.” Tenure thus comes to mean the conditions on which a tenant holds real estate under his lord, and the number of tenures varies with the number of accepted types.

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.leasehold. The two last-mentioned 66may be rapidly dismissed, as they were of little importance in the eyes of Littleton, or of Coke: leasehold embraces only temporary interests, such as those of a tenant-at-will or for a limited term of years; while copyhold is the modern form of tenure into which the old unfree villeinage has slowly ripened. The ancient writers were, on the contrary, chiefly concerned with holdings both permanent and free (as opposed to leaseholds on the one hand and villeinage on the other). Of such free tenures seven at least may be distinguished in the thirteenth century, all of which have now come to be represented by the same one of the three recognized modern tenures, namely, freehold or socage. The free holdings existing in medieval England may be ranged under the following heads, viz.: knight’s service, free socage, fee-farm, frankalmoin, grand serjeanty, petty serjeanty, and burgage.

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

(2) Free Socage. The early history of socage, with its division into ordinary and privileged, is involved in obscurities which do not require to be unravelled for the purpose at present on hand. The services which had to be returned for both varieties were not military but agricultural, and their exact nature, and amount varied considerably. Although not so honourable as chivalry, free 67socage was less burdensome in respect that two of the most irksome of the feudal incidents, wardship and marriage, did not apply. When knight’s service was abolished those who had previously held their lands by it, whether under the Crown or under a mesne lord, were henceforward to hold in free socage, which thus came to be the normal holding throughout England after the Restoration.^[66]

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

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

(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 68office in the field, such as carrying the King’s banner or lance, or else acted as his constable or marshal or other household officer in the palace, or performed some important service at the coronation.^[70]

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

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

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

The grant of lands on such privileged tenures was frequently made in early days on account of the special favour entertained by the King for the original grantee, due, it might be, to the memory of some great service rendered at a critical juncture to the King’s person or interests. A few illustrative examples may be cited from the spirited description of a scholar whose accuracy can be relied upon. Serjeanties, as Miss Bateson 69tells us, "were neither always military nor always agricultural, but might approach very closely the service of knights or the service of farmers.... The serjeanty of holding the King’s head when he made a rough passage across the Channel, of pulling a rope when his vessel landed, of counting his chessmen on Christmas Day, of bringing fuel to his castle, of doing his carpentry, of finding his potherbs, of forging his irons for his ploughs, of tending his garden, of nursing the hounds gored and injured in the hunt, of serving as veterinary to his sick falcons, such and many other might be the ceremonial or menial services due from a given serjeanty."^[74]

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

(7) Burgage, confined exclusively to lands within free boroughs, is mentioned as a separate tenure by Littleton,^[76] and his authority receives support from the words of chapter 37 of Magna Carta. Our highest modern authorities,^[77] however, consider that it never acquired sufficiently distinct characteristics to warrant its acknowledgment as such. They treat it rather as a special variety of socage, 70used where the tenants were the members of a corporation. If their opinion must be accepted for England, it follows that, from common antecedents, entirely different results have developed in Scotland and in England respectively. While, north of the Tweed, several of the well-established English tenures have failed to make good their right to separate recognition, burgage has established itself beyond a doubt. Even the levelling process consummated by the Conveyancing (Scotland) Act of 1874 has not entirely abolished its separate existence.

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

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

71The interest of historians naturally centres round tenure by knight’s service, which is the very kernel of the feudal system. Lack of definition in the middle ages was a fruitful source of quarrel. For a century and more after the Norman Conquest, the exact amount and nature of the military services due by a tenant to his lord were left vague and undetermined. The early Norman Kings had gradually superseded the old Anglo-Saxon Crown tenants by new ones of Norman or French extraction, without formulating any code of regulations for the future. The whole of England had thus been carved into a number of estates—the larger known as honours or baronies, and the smaller as manors. Each Crown tenant (with two exceptions, of which the Conqueror’s favourite foundation of Battle Abbey was one) held his lands on condition of furnishing a certain number of fully armed and mounted soldiers, always ready to obey the King’s summons in the event of war. High authorities differ as to when and by whom the amount of each vassal’s service was fixed. The common view (promulgated by Prof. Freeman^[81] with his usual vehemence), attributes the allocation of specific service to Ranulf Flambard, the unscrupulous tool of William Rufus. Mr. J. H. Round^[82] has recently urged convincing reasons in support of the older view which attributes it to William I. Two facts, apparently, are certain: that within half a century from the Conquest each military tenant was burdened with a definite amount of knight’s service; and, further, that no formal record of the amount of such service was made at the time. There were, as yet, no written charters, and thus the possibility of disputes remained. Probably such grants would be made in full Curia, and the only record of the conditions would lie in the memory of the Court itself.

72Long before the date of Magna Carta, the various obligations had been grouped into three classes, which may be arranged according to their relative importance, as services, incidents, and aids. Under each of these three heads, disputes continually arose between the lord who exacted and the vassal who rendered them.^[83]

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

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

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

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

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

(b) Escheat, it has been said, "signifies the return of an estate to a lord, either on failure of issue from the tenant or upon account of such tenant’s felony."^[87] This lucid description conveys a good general conception of escheat; but it is inaccurate in at least two respects. It does not exhaust the occasions on which escheat occurs, and it errs in speaking of “the return” of an estate to a lord, when, more accurately, that estate had never left 74him, but always remained his property, subject only to a burden, which was now removed. In theory, the feudal grant of lands was always conditional; and when the condition was broken, the grant fell, and the lord found himself, automatically as it were, once more the absolute unburdened proprietor, as he had been before the grant was made. Thereafter, he held the land in demesne, unless he chose to make a new grant to another tenant. The word “escheat” was applied indifferently to the lord’s right to such reversions, and to the actual lands which had thus reverted. In warlike and unsettled times the right was a valuable one, for whole families might become rapidly extinct. When the last tenant left no heir, it was obvious that the original grant had exhausted itself. Similarly, when a landholder was convicted of felony, his blood became, in the phrase of a later day, attainted, and no one could succeed to any estate through him. If a man failed in the ordeal of water provided by the Assize of Clarendon in 1166 for those accused of heinous crimes, his estates also escheated to his lord. It is true that a complication arose when it was of treason that the tenant had been convicted. In that case the king, as the injured party, had prior rights which excluded those of the lord. The lands of traitors were forfeited to the Crown. Even in the case of felony the king had a limited right to the lands during a period which was strictly defined by Magna Carta.^[88]

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

Escheat was thus a peculiarly valuable right both to the Crown and to mesne lords. Its effect was simply 75this: one link in the feudal chain was struck out, and the links on either side were fitted together. If the defaulter was a Crown tenant, all his former sub-tenants, whether freeholders or villeins, moved up one rung in the feudal ladder and held henceforward directly of the king, who enjoyed the entire complexus of legal rights previously enjoyed by the defaulter in addition to those previously enjoyed by himself: rents, crops, timber, casual profits, and advowsons of churches falling vacant; jurisdictions and the profits of jurisdictions; services of villeins; reliefs, wardships, and marriages of freeholders as these became exigible.

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

(c) Wardships are described in the Dialogus de Scaccario as “escheats along with the heir” (escaeta cum herede).^[92] This expression does not occur elsewhere, but it would be impossible to find any description of wardship which throws more light on its nature and consequences. When the heir of a deceased tenant was unfitted to bear arms by reason of his tender years, the lands were practically, during his minority, without an effective owner. The lord accordingly treated them as temporarily escheated. During the interval of nonage, the lord entered into possession, drew the revenues, and applied them to his own purposes, subject only to the obligation of maintaining and training the heir in a manner suited to his station in life. Frequently, considerable sums were thus spent. The Pipe Roll of the seventeenth year of Henry II. shows how out of a total revenue of £50 6s. 8d. from the Honour of “Belveeir,” £18 5s. had been expended on the children of the late tenant.^[93] 76Wardship came to an end with the full age of the ward, that is, in the case of a military tenant, on the completion of his twenty-first year, “in that of a holder in socage on the completion of the fifteenth, and in the case of a burgess when the boy can count money, measure cloth, and so forth.”^[94] Wardship of females normally ended at the age of fourteen, "because that a woman of such age may have a husband able to do knight’s service."^[95]

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

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

77This right was carefully reserved to the Crown, even in the very comprehensive charter in which John granted freedom of election, dated 21st November, 1214.^[98]

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

This right seems, at some uncertain date, to have been extended from females to males, and instances of sums thus paid occur in the Pipe Rolls. It is difficult at first sight to imagine how the Crown found a market for such wares as male wards; but probably wealthy fathers were ready to purchase desirable husbands for their daughters. Thus in 1206 a certain Henry of Redeman paid forty marks for the hand and lands of the heir of Roger of Hedon, “ad opus filiae suae,”^[99] while Thomas Basset secured a prize 78in the person of the young heir of Walerand, Earl of Warwick, to the use of any one of his daughters.^[100] This extension to male heirs is usually explained to have been founded on a strained construction of chapter 6 of Magna Carta, but the beginnings of the practice can be traced much earlier than 1215.^[101] The lords’ right to sell their wards was recognized and defined by the Statute of Merton, chapter 6. The attempts made to remedy some of the most serious abuses of the practice may be read in Magna Carta.^[102]

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

(e) Primer Seisin, which is usually regarded as a separate incident, and figures as such in Blackstone’s list, is perhaps better understood, not as an incident at all, but rather as a special procedure—effective and summary—whereby the Crown could enforce the four incidents already described. It was an exclusive prerogative of the Crown, denied to mesne lords.^[105] When a Crown tenant died, the King’s officers had the right to enter upon immediate possession, and to exclude the heir, who could not touch his father’s lands without specific permission from the Crown. He had first to prove his title by inquest, to give security for any balance of relief and other debts unpaid, and to perform homage.^[106] It will be readily seen what a strong strategic position all this assured to the 79King in any disputes with the heir of a dead vassal. If the Exchequer had doubtful claims against the deceased, its officials could satisfy themselves before admitting the heir to possession. If the heir showed any tendency to evade payment of feudal incidents, the Crown could checkmate his moves. If the succession was disputed, the King might favour the claimant who pleased or paid him most; or, under colour of the dispute, refuse to disgorge the estate altogether—holding it in custody analogous to wardship, and meanwhile drawing the profits. If the son and heir happened to be from home when his father died, he would probably experience great difficulty, when he returned, in forcing the Crown to restore the estates. Such was the experience of William Fitz-Odo on returning from Scotland in 1201 to claim his father’s carucate of land in Bamborough.^[107] Primer seisin was thus not so much a separate incident, as a right peculiar to the Crown to take summary measures for the satisfaction of all incidents or other claims against a deceased tenant or his heir. Magna Carta admitted this prerogative whilst guarding against its abuse.^[108]

(f) Fines for alienation occupy a place by themselves. Unlike other incidents already discussed, they became exigible not on the tenant’s death, but on his wishing to part with his estate to another during his own lifetime, either as a gift or in return for a price. How far could he effect this without consent of his lord? This was, for many centuries, a subject of frequent and heated disputes, often settled by compromises, in which the tenant 80paid a fine to the lord for permission to sell. Such fines are payable at the present day in Scotland (under the name of “compositions”) from feus granted prior to 1874; and, where no sum has been mentioned in the Feu Charter, the law of Scotland defines the amount exigible as one year’s rent. John’s Magna Carta contains no provisions on this subject. Disputes, long and bitter, took place later in the thirteenth century; but their history is irrelevant to the present inquiry.^[109]

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

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

81This plainly became, however, a legal fiction, as regarded the aids acknowledged by customary law; the tenant dared not refuse to pay the recognized three. As regarded any further payments, it was by no means a fiction. When the Crown desired to exact contributions for any other reason, it required to obtain the consent of the commune concilium. This, for example, was done by Henry III. before taking an aid on the marriage of his eldest sister. The importance of the necessity for such consent can hardly be exaggerated in its bearing on the origin of the rights of Parliament.

The Great Charter, while confirming the tacit compromise arrived at by custom, whereby only the three aids might be taken without consent of the baronage, left the amount of such aids undefined, contenting itself with the extremely vague provision that they should be “reasonable.” Examples of such payments, both before and after the Charter, are readily found in the Exchequer Rolls. Thus, in the fourteenth year of Henry II., that king took one mark per knight’s fee on marrying his daughter Maud to the Duke of Saxony. Henry III. took 20s. and Edward I. 40s. for a similar purpose. For Richard’s ransom, 20s. had been exacted from each knight’s fee (save those owned by men actually serving in the field); and Henry III. took 40s. in his thirty-eighth year at the knighting of his son. Probably there existed, at an early date, some understanding as to the limits within which “reasonableness” should be reckoned, but the amount was never stated in black and white before the third year of Edward I. The Statute of Westminster I.^[113] fixed the “reasonable” aid payable, not to the Crown but, to mesne lords at 20s. per knight’s fee, and 20s. for every estate in socage of £20 annual value. This rate, it will be observed, is one-fifth of the knight’s relief.^[114] The Crown, in thus enforcing “reason” on mesne lords, seems never to have intended that the same limit should hamper its 82own dealings with Crown tenants, but continued to exact larger sums whenever it thought fit.^[115]

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

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

It was far otherwise with the duties of military service, which were rendered every year more unwillingly, partly because of the increased frequency of warlike expeditions, partly because of the greater cost of campaigning in distant lands like Poitou, partly because the English barons were 83completely out of sympathy with John’s foreign policy and with him. We have seen that the want of definition and looseness of practice in the reign of William the Conqueror left to future ages a legacy fertile in disputes. William I. and his barons lived in the present; and the present did not urgently call for definition. Therefore, the exact duration of the military service to be rendered, and the exact conditions (if any) on which exemption could be claimed, were left originally quite vague. Such carelessness is easily explained. Both Crown and barons hoped that by leaving matters undefined, they would be able to alter them to their own advantage. This policy was sure to lead to bitter quarrels in the future, but circumstances delayed their outbreak. The magnates at first readily followed William to the field wherever he went, since their interests were identical with his, while warfare was their normal occupation.

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

84Such difficulties were increased, as time went on, rather than removed. The Conqueror’s followers had possessed, like their lord, estates on both sides of the Channel: his wars were theirs. Before John’s reign, these simple relations had become complicated by two considerations. By forfeitures and the division of inheritances between sons of one father, holders of English fiefs and holders of Norman fiefs had become distinct; the English barons had in 1213 nothing at stake in the Crown’s selfish schemes of aggrandisement or defence. The England of John Lackland, like the England of William of Orange, objected to be entangled in foreign wars in the interests of foreign possessions of the King. On the other hand, the gradual expansion of the dominions of the wearers of the English Crown increased the number of their wars with the number of their interests, and increased, too, the trouble and expense of each expedition. The small wars with Wales and Scotland formed a sufficient drain on the resources of English magnates without their being summoned in intermediate years to fight in Maine or Gascony. The greater number of campaigns might well be reckoned a breach of the spirit of the original agreement.

Were the barons bound to follow John in a forlorn attempt, of which they disapproved, to recover his lost fiefs from the French Crown? Or were they bound to support him only in his legitimate schemes as King of England? Or were they, by way of compromise, liable for services in the identical possessions held by William the Conqueror at the date when their ancestors first got their fiefs—that is, for wars in England and Normandy alone? Tenderness for legal subtleties or strict logic could hardly be expected from the malcontents of the northern counties, smarting under a dumb sense of wrong. Despising 85all nice definition, they declared roundly in 1213 that they owed no service whatsoever out of England.^[119] This extreme claim put them clearly in the wrong, since John had many precedents to the contrary ready to lay before them. When the King, on his return from his unfortunate expedition in 1214, demanded a scutage from all who had not followed him to Poitou, the malcontents declared that they had no obligation either to follow him out of the kingdom, or to pay a scutage in lieu thereof.^[120] Pope Innocent was probably correct in condemning this contention as founded neither on English law nor on feudal custom.^[121] There is some ground for believing that a compromise was mooted on the basis that the barons should agree to serve in Normandy and Brittany, as well as in England, on being exempted from fighting elsewhere abroad.^[122]

A definite understanding on this vital question was never arrived at—not even on paper, since chapter 16 of Magna Carta contented itself with the bald provision that existing services were not to be increased (without defining what these were). This was merely to shelve the difficulty: the dispute went on under varying forms and led to a violent clashing of wills in the unseemly wrangle between Edward I. and his Constable and Marshal, dramatized in a classic passage by Walter of Hemingburgh.^[123] Strangely enough, the Confirmatio Cartarum of 1297, which was, in part, the outcome of this later quarrel, omits (like Magna Carta itself)^[124] all reference 86to foreign service. The total omission from both charters of all mention of the chief cause of dispute is noteworthy. It must be remembered, however, that the question of liability to serve abroad had practically resolved itself into that of liability to scutage, and that chapters 12 and 14 of the Charter of 1215 provided an adequate check on the levy of all scutages; but this is a subject of crucial importance, which requires separate and detailed treatment.

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

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

“Scutagium,” or “shield-money,” often means, it is true, a specific sum of so much per knight’s fee (normally twenty shillings) accepted by the King in lieu of the personal service in his army due by his tenants in capite. Thus it is, as Dr. Stubbs explains, “an honourable commutation for personal service”;^[125] but it is also loosely used^[126] to denote any exaction whatsoever assessed on a feudal basis (that is, taken exclusively from holders of fiefs) irrespective of the 87occasion of its levy. Thus, money taken in name of one of the three feudal aids is sometimes described as a scutage; and other instances might be cited.

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

(a) The option to convert service into scutage lay with the Crown, and not with the tenants, either individually or as a body. When the King summoned his feudal army no baron could (as Professor Freeman would have us believe) simply stay away under obligation of paying a small fixed sum to the Exchequer. On the contrary, Henry and his sons jealously preserved the right to insist 88on personal service whenever it suited them; even efficient substitutes were not always accepted, much less money payments.

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

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

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

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

Henry II. seems to have levied money in name of scutage only when actually at war—on seven occasions in all during a reign of thirty-five years; and only once at a rate exceeding 20s., if we may trust Mr. Round,^[131] and 89that when he was putting forth a special effort against Toulouse. Richard I., with all his rapaciousness, levied, apparently, only four scutages during ten years, and the rate of 20s. was never exceeded even in the King’s hour of urgent need,—in 1194, when the arrears of his ransom had to be paid and preparations simultaneously made for war in Normandy.

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

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

It is here maintained that John did make changes in all three directions; and, further, that the incidence of this increase in feudal burdens was rendered even more unendurable by two considerations:—because at his accession there remained unpaid (particularly from the fiefs of the northern knights) large arrears of the scutages imposed in his brother’s reign,^[132] and because in June, 1212, John drew the feudal chain tight by a drastic and galling measure. In that month he instituted a strict inquest into the amount of feudal service exigible from every estate in 90England, to prevent any dues escaping his wide net, and to revive all services and payments that had lapsed or were in danger of lapsing.

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

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

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

Fines, in addition to this scutage of two marks, were 91apparently exacted from those who had not made the necessary compromise for personal service in due time.^[134]

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

During the two financial years immediately following (Michaelmas, 1211, to Michaelmas, 1213) no scutage was imposed. John, however, although he thus a second time relaxed the tension, had no intention to do so for long. On the contrary, he determined to ascertain if scutages could not be made to yield more in the future. By writs, dated 1st June, 1212, he instituted a great Inquest throughout 92the land. Commissioners were appointed to take sworn verdicts of local juries as to the amount of liability due by each Crown vassal. Mr. Round^[136] considers that previous writers have unaccountably ignored the importance of this measure, “an Inquest worthy to be named in future by historians in conjunction with those of 1086 and 1166,”^[137] and describes it as an effort “to revive rights of the Crown alleged to have lapsed.” It is possible that John, by this Inquest of 1212, sought also (unsuccessfully, as the sequel proved) to do what Henry had done successfully in 1166—that is, to increase the amount of knights’ fees on which each Crown tenant’s scutage was assessed by adding to the previous total the number of knights recently enfeoffed.

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

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

93Thus gradually and insidiously throughout the entire reign of John, the stream of feudal obligations by many different channels steadily rose until the barons feared that nothing of their property would be saved from the torrent. The normal rate of scutage had been raised, the frequency of its imposition had been increased, the conditions of foreign service had become more burdensome, and the objects of foreign expeditions more unpopular; while attempts were sometimes made to exact both service and scutage in the same year. The limit of the barons’ endurance was reached when, on 26th May, 1214, John, already discredited by his unsuccessful expeditions in Poitou, soon to be followed by the utter overthrow of his allies at Bouvines, issued writs for a scutage at the unheard-of rate of three marks, grounded doubtless on the inquest of 1212 and unusually far-reaching in the subjects which it embraced.^[139]

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

III. Royal Justice and Feudal Justice.

A well-known aphorism of legal text-books, couched in language unusually figurative, declares the King to be “the sole fountain of justice.” Correct as it is to apply this metaphor to the present state of the constitution, it would be an anachronism and a blunder to transport it into the thirteenth century. In John’s reign there still were—as there had been for centuries—not one, but many competing jurisdictions. It was by no means a foregone conclusion that the King’s Courts were the proper tribunals to which a wronged individual must repair to seek redress. On the contrary, the great bulk of the rural population, the villeins, had no locus standi except in the court of the manor to which they belonged; while the doors of the royal Courts had been closed against the ordinary freeman previous to the reign of 94Henry II. Royal justice was still the exception, not the rule. Each man must seek redress, in the ordinary case, in his own locality. To dispense justice to the nation at large was no part of the normal business of a medieval King.

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

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

The theory generally received is that all freemen were originally suitors in the courts of the shire and the hundred, and that the whole body of those present, the ordinary peasant (“ceorl”) equally with the man of noble blood (“eorl”), took an active part in the proceedings, pronouncing (or, at least, concurring in) the judgments or dooms there declared; but that, as time progressed, the majority of the Anglo-Saxon ceorls sank to the half-servile position of villeins—men tied for life to the soil of the manor, and 95passing, like property, from father to son. These villeins, although still subjected to the burden of attendance, and to some of the other duties of their former free estate, were deprived of all those rights which had once formed the counterpart of the obligations. Another school of historians, it is true, denies that the mass of the population, even in very early times, ever enjoyed the right to any active share in the dispensation of justice. It is unnecessary here to attempt a solution of these and many other intricate problems surrounding the composition and functions of the courts of shire and hundred; or to discuss the still more vexed question how far the small assembly of the villagers of each township is worthy to be reckoned a formal court of law. It is sufficient to emphasize the importance of the existence from early times of a complete network of courts, each dispensing justice for the people of its own district.

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

Practically every holder of land in England came to be also the holder of a court for the inhabitants of that land. The double meaning of the word “dominus” illustrates the double position of the man who was thus both owner and lord.^[141] In the struggle between two schemes of justice, the 96tribunals of the feudal magnates easily triumphed, but never absolutely abolished their rivals. The earlier popular courts still lived on; but the system of district justice which had once embraced the whole of England was completely honeycombed by the growth of the feudal courts. As each once-free village passed under the domination of a lord, and gradually became a manor or embryo-manor, the village-moot (with such rudimentary authority as it may originally have possessed) gave way before a new manorial court endowed with much wider powers and with more effective sanction for enforcing them. Further, as complete hundreds fell under the control of specially powerful magnates, the entire courts of these hundreds were replaced by or transformed into feudal courts; franchises thus took the place of many of the old popular moots. Still, the older system retained possession of part of the disputed ground, thanks to the protection given it in its hour of need by the Crown. A great majority of the hundreds never bowed to the exclusive domination of any one lord, and the courts of the shires were jealously guarded by the Norman Kings against the encroachment of even the most powerful of barons. It is true that they only escaped subjection to a local landowner in order to fall under the more powerful domination of the Crown. Yet the mere fact that they continued in existence acted at least as a check on the growth of the rival system of seignorial tribunals.

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

In later days (but not till long after Magna Carta) each 97manorial tribunal split into three distinct courts, according to the class of pleas it was called upon to try. Later writers distinguish absolutely from each other, the Court Baron, settling civil disputes between the freeholders of the manor; the Court Customary, deciding non-criminal cases among the villeins; and the Court Leet, a petty criminal court enforcing order and punishing small offences. The powers of these courts might vary, and in many districts the jurisdiction over misdemeanours belonged not to the steward of the lord of the manor, but to the sheriff in his half-yearly Circuits or “Tourns” through the county. In the imperfectly feudalized districts the Tourn of the sheriff, as the representative of the Crown, performed the same functions as the Court Leet performed within the territories of a franchise.

(3) Royal Courts. Originally, the King’s Court had been merely one feudal court among other feudal courts—differing in degree rather than in kind from those of the great earls or barons. The King, as a feudal lord, dispensed justice among his feudal tenants (whether barons and freemen or only servile dependents), just as any baron or freeman dispensed justice among his tenants, bond or free. No one dreamed, in the time of the Norman Kings, that the Curia Regis would or could undertake the enormous labour of dispensing justice for the whole nation (or even of supervising the courts which did dispense it). Each individual must, on the contrary, look for the redress of wrongs either to the court of the people of his own district, or to the court of his lord. Royal justice for all (in the modern sense) was simply impossible. The monarchy had no machinery at command for effecting this. The task was a gigantic one, which no Anglo-Saxon King, which not even William I., could possibly have undertaken. No attempt in this direction was made by the Crown until the reign of Henry II., who was placed in a position of unprecedented power, partly by circumstances, but chiefly by his great abilities. Even he, born reformer as he was, would never have increased 98so greatly the labours of government, if he had not clearly seen how enormously the change would enhance both the security of his throne and the revenue of his exchequer.

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

Thus the three great systems of jurisdiction, popular justice, feudal justice, and royal justice (each depending on a different principle) succeeded each other, on the whole, in the order in which they are here named. Yet the sequence is in some ways logical rather than chronological. No absolute line can be drawn, showing where 99the supremacy of one principle ended and that of the next began. For centuries, all three co-existed, and struggled for the mastery. The germs of manorial jurisdiction may have been present from an early date. Shire-courts and hundred courts alike were continually in danger of falling under the domination of powerful local magnates. Yet the shire-courts were successful in maintaining till the last (thanks to royal favour) their independence of the manorial jurisdictions and their lords; while only a proportion of the hundred courts fell into bondage.

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

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

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

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

(1) On the complaint of the party aggrieved—the plaintiff—a summons, or writ, is issued by an officer of 100the court. Proceedings are opened by the command addressed to the defendant to appear in court and answer what is alleged against him.

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

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

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

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

A trial in Anglo-Saxon and early Norman times stands in notable contrast to all this in almost every essential of its stages and procedure, and even more radically in the spirit which pervades the whole. Thus, the proceedings, from first to last, were purely oral, there being no original writ or summons, no written pleadings, and no record kept of the decision except in the memories 101of those present. The functions of “the judges” were entirely different, and demanded no previous professional or legal training, since they were not required either to weigh a mass of evidence or to determine the bearing of subtle legal arguments, but merely to see fairplay, and to decide, according to simple rules, well established by centuries of custom, by what test the allegations of plaintiff and defendant were respectively to stand or fall. Finally, the arrangement of the stages of the litigation was entirely different. It is with something of a shock that the modern lawyer learns that in civil and criminal causes alike “judgment” invariably preceded “trial.” Reflection will soon convince him that each of these words had in the Middle Ages a meaning different from what it bears to-day. These ancient meanings can be best understood by following the stages of the old procedure.

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

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

(3) Before the plaintiff could put the defendant finally on his defence, he required to show some preliminary presumption of the probability or bona fides of his case. This he usually did by producing two friends ready to substantiate his claim, known sometimes as his “suit” (Latin secta), or his “fore-witnesses.” Their evidence was not weighed against the “proof” afterwards led by the 102defendant; its object was merely to warrant the Court in demanding “proof” from the latter at all.^[143]

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

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

103It will be apparent that to pronounce a “judgment” in this sense was a simple affair, a mere formality in the ordinary case, where room for dubiety could hardly be admitted; and thus it was possible for “judgment” to be delivered by all the members of a feudal court, or even by all the suitors present at a meeting of the hundred or shire-moot.

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

The battle was fought out before the “judges,” who, in the case of an earl or baron, were the other earls and barons assembled as his peers in the King’s court; and, in the 104case of the tenant of a mesne lord, were the other freeholders of the same manor.

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

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

In one sense, the final (as opposed to the medial) “judgment” was determined by the parties themselves, or by one of them; in another and higher sense the facts at issue were left to Providence; a miracle, if necessary, would attest the just claim of the innocent man. Those 105who delivered the final doom, had a purely formal task to perform, and had little in common with the “judges” of a modern court.^[149]

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

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

This procedure was known as inquisitio (or the seeking of information) when regarded from the point of view of the government making the inquiry, and as recognitio (or the giving of information) from the point of view of those supplying it. This extremely simple and practical device was flexible and capable of extension to endless new uses in 106the deft hands of the Norman Kings in England. William the Conqueror employed it in collecting the laws and customs of the conquered people, and, later on, in compiling Domesday Book; while his successors made it the instrument of various experiments in the science of taxation. It has a double claim to the interest of the constitutional historian, because it was one of the influences which helped to mould our Parliamentary institutions; and because several of the new uses to which it came to be put had a close connection with the origin of trial by jury. The recognitors, indeed, were simply local jurors in a rude or elementary form.^[150]

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

In brief, then, Henry’s policy was twofold: to convert the County Courts practically into Royal Courts, since in them royal officials now dispensed royal justice according to the same rules as prevailed at the King’s own Curia; and to reduce all manorial or private courts to insignificance by diverting pleas to his own Curia, and leaving the rival tribunals to die gradually from inanition. Both branches of this policy met ultimately with complete success, although the event hung in the balance until long after his death. The barons, though partially deceived by the gradual and insidious nature of 107Henry’s reforms, did what they could to thwart him; but the current of events was against them and with the Crown. Royal justice steadily encroached upon feudal justice. One of the last stands made by the barons has left its traces plainly written in several chapters of Magna Carta.^[151]

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

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

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

(b) Henry’s usual good sense, in this matter stimulated by some notable miscarriages of justice, led him to 108question the equity of the procedure usually adopted in criminal pleas, namely, by “appeal” or formal accusation by the injured party, or his nearest surviving relative. He substituted, whenever possible, communal accusation for individual accusation; that is, the duty of proclaiming (or indicting) the suspected criminals of each district before the King’s Justices was no longer left to private initiative, but was laid on a body of neighbours specially selected for that purpose—the predecessors of the Grand Jury of later days. This new procedure, it is true, supplemented rather than superseded the older procedure; yet it marked a distinct advance. Appeals were discouraged and exact rules laid down restricting the right of accusation to certain cases and individuals.^[153]

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

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

(a) An unflinching rule was established that no case could be brought before the royal court until a writ had been obtained from chancery. This had to be paid for, sometimes at a fixed rate, and sometimes at whatever sum the Crown demanded. The whole procedure in the royal courts, which followed the issuing of such a writ, came to be known as “the writ process.” Once it was issued, all proceedings in other courts must stop. One special form of writ (known as praecipe), in particular, became a royal instrument for removing before the King’s own Curia cases pending in the manorial courts of mesne lords. To do this was to enrich the King at the expense 109of some baron or other freeman, by bringing to the Exchequer fees which otherwise would be paid to the owner of the private court. This was plainly "to cause a freeman to lose his court"—an abuse specially struck at by chapter 34 of the Great Charter.

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

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

These were the chief innovations which enabled Henry, while instituting many reforms urgently required and 110gladly welcomed by the mass of his subjects, at the same time to effect a revolution in the relations of royal justice to feudal justice. As time went on, new royal writs and remedies were being continually devised to meet new types of cases; and litigants flocked more and more readily to the King’s Courts, leaving the seignorial courts empty of business and of fees. Nor was this the only grievance of the barons. When one of their own number was amerced or accused of any offence involving loss of liberty or lands, he might be compelled by the Crown, under Henry and his sons, to submit to have the amercement assessed or the criminal proceedings conducted by one of the new Benches (by a tribunal composed of some four or five of the King’s officials), in place of the time-honoured judgment of his peers assembled in the Commune Concilium (the predecessor of the modern Parliament).

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

The cause for wonder rather is that their demands in this respect were not more sweeping and more drastic. It was one thing for their fathers to have endured the encroachments of so strong a King as Henry II.—far too wise a statesman to show clearly whither his innovations were ultimately tending, and (some lapses notwithstanding) a just ruler on the whole, using his increased prerogatives with moderation and for national ends. It was quite another thing to endure the same encroachments 111(or worse) from an unpopular King like John, discredited and in their power, who had neither disguised his arrogance nor made good use of his prerogatives. Royal justice, as dispensed by John, was in every way inferior to royal justice as dispensed under his father’s vigilant eye. Yet the exasperated barons, in the hour of their triumph, actually accepted, and accepted cordially, one half of royal justice; while they sought to abolish only the other half. The chapters bearing on the question of jurisdiction may thus be arranged in two groups, some reactionary, and some favourable to Henry’s reforms. On the one hand, no lord of a manor shall be robbed of his court by the King evoking before the royal courts pleas between two freeholders of the lord’s manor;^[159] no freeman shall be judged or condemned by the King’s officials, but only before the full body of his peers (that is, of his fellow earls and barons, if he be an earl or baron, and of his fellow tenants of the manor, if he holds of a mesne lord);^[160] earls and barons must be amerced only by their equals.^[161] On the other hand, in prescribing remedies for various abuses connected with numerous branches of legal procedure recently introduced into the royal courts, the barons accepted by implication this new procedure itself and the royal encroachments implied therein. For example, the Crown’s right to hold “Common Pleas” was impliedly admitted, when the barons asked and obtained a promise that these should be tried in some certain place (that is, at Westminster).^[162] Yet these very pleas, ordinary ones in which the Crown had no special interest, as opposed to Pleas of the Crown in which it had, must have included many cases which, prior to Henry II.’s reforms, would not have been tried in a royal court. Again, in regulating the various Petty Assizes, chapters 18 and 19 admit the Crown’s right to hold them. Such Assizes must be taken henceforth four times a year. Here, as in chapter 40, the ground of complaint is not that there is too much of royal justice, but rather that there is too little of it; it is henceforth to be neither 112delayed nor denied. Further, the encroachments made by Henry II. in 1166 on the rights of private franchises in the matter of criminal jurisdiction are homologated by acquiescence in the King’s definition of “Pleas of the Crown” implied in chapter 24.

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

I. Its Prototypes: Earlier Charters.

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

The ties which thus connect King John’s promises of good government with the promises to the same effect made at their coronation by the princes of the old dynasty of Wessex are by no means of an accidental nature. Not only is identity of substance, in part at least, maintained throughout; but the promises were the outcome of an essential feature of the old English constitution—a feature so deeply rooted that it survived the shock of the Norman Conquest. This feature, so fundamental and so productive of great issues, was the elective or quasi-elective nature of the monarchy. During the Anglo-Saxon era, two rival principles, the elective and the hereditary, struggled for the mastery in determining the succession to the Crown. In an unsettled state of society, nations cannot allow the 114sceptre to pass into the hands of an infant or a weakling. When a king died, leaving a son of tender age, and survived by a brother of acknowledged ability and mature powers, it was only natural that the latter should, in the interests of peace and order, be preferred to the throne. In such cases, the strict principle of primogeniture was not followed. The magnates of the kingdom, the so-called Witan, claimed the right to choose a fitting successor; yet in so doing they usually paid as great regard to the claims of kindred as circumstances permitted. The exact relations between the elective and the hereditary principles were never laid down with absolute precision. Indeed, the want of definition in all constitutional questions was characteristic of the age—a truth not sufficiently apprehended by writers of the school of Kemble and Freeman. The practice usually followed by the Witenagemot was to select as the new ruler some kinsman of the late king standing in close relationship to him, and at the same time competent for the high post. The king-elect thus appointed had, before his title was complete, to undergo a further ceremony: he required to be solemnly anointed by the representative of the spiritual power, and this gave to the Church an important share in deciding who should be king. At an early date—exactly how early is not known, but certainly not later than the days of Edgar—it became the invariable practice for the officiating archbishop to exact an oath of good government from the king-elect before his final coronation. The precise terms of this oath became stereotyped; and, as administered by Dunstan to King Ethelred, they are still extant.^[163]

115It may be briefly analyzed into three promises—peace to God’s Church and people; repression of violence in men of every rank; justice and mercy in all judgments. Such was the famous tripartite oath taken, after celebration of mass, over the most sacred relics laid on the high altar, in presence of Church and people, by the kings of the old Anglo-Saxon race. When William I., anxious in all things to fortify the legality of his title, took the oath in this solemn form, he created a precedent of tremendous importance, although he may have regarded it at the moment as an empty formality.^[164]

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

This was of vital moment, because limits were thereby placed, in theory at least, on prerogatives that threatened in practice to become absolute. Undoubtedly the power of the Norman kings was very great, and might almost be described as irresponsible despotism, tempered by the fear of rebellion. Three forces indeed acted as curbs: the practical necessity for consulting the Curia Regis (or assembly of crown vassals) before any vital step was taken; the 116restraining influence of the national Church, backed by the spiritual powers of Rome; and the growth, in a vague form, it is true, of a body of public opinion confined as yet to the upper classes.

All these elements counted for something, but failed to restrain sufficiently even an average king; while they were powerless against a strong ruler like William I. The only moment at which the Crown might be taken at a clear disadvantage was during the interregnum which followed the death of the last occupant of the throne. Two or more rival heirs might aspire to the high position, and would be eager to make promises in return for support. Thus, William Rufus, at his father’s death, anxious to prevent his elder brother, Duke Robert, from making good his claim to the English throne, succeeded chiefly through the friendship of Lanfranc. To gain this, he was compelled to make promises of good government, and to follow his father’s precedent by taking the oath in the ancient form, in which it had been administered by Dunstan to Ethelred. In the same reign began the practice of supplementing verbal promises by sealed charters, which in some respects must be regarded simply as the old coronation oath confirmed, expanded, and reduced to writing. No such charter was indeed issued either by Rufus or by his father when they were crowned; but the younger William, at a critical period later in his reign, seems to have granted a short Charter of Liberties, the exact contents of which have not come down to us. At the death of Rufus, his younger brother, Henry I., found himself hard pressed in the competition for the English Crown by Duke Robert (the Conqueror’s eldest son). By a treaty made at Caen in 1091, Duke Robert and Rufus had agreed that each should constitute the other his heir. Thus Henry was, in a sense, a usurper, and this circumstance made it necessary for him to bid high for influential support.^[165] It is to this doubtful title, coupled with the knowledge of widespread disaffection, that Englishmen owe the 117origin of the first Charter of Liberties that has come down to us.^[166]

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

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

It is true that the mass of the people may have indirectly benefited by many of these provisions; but 118when we look for measures of a directly popular character, only three can be found, namely, promises to enforce peace in the land, to take away evil customs, and to observe the laws of Edward Confessor as amended by William I. This is too slender a basis on which to found a claim to take rank as a “national king,” even if Henry had any intention of keeping his promises. It is now notorious that not a single promise remained unbroken.^[170]

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

If all efforts made to defeat Henry’s succession failed, the succession of his daughter Matilda was disputed triumphantly. Stephen, taking advantage of his cousin’s absence and of her personal unpopularity, made a rapid descent on England with the spasmodic energy which characterized him, and successfully snatched the Crown. Trained in English ways on English soil, he was quickly on the spot and very popular. These features in his favour, however, did not render his position entirely secure as against the daughter and heiress of so strong a King as Henry I., to whom, indeed, Stephen himself, with all the magnates of England, had already thrice sworn allegiance. He was only one of two competitors for the Crown, with chances nearly equal. From the moment of the old King’s death, “the Norman barons treated the succession as an open question.” In these words of Bishop Stubbs,^[171] Mr. 119J. H. Round finds^[172] the keynote of the reign. Stephen was never secure on his throne, and had to make indiscriminate promises first to obtain, and afterwards to retain, his position. He was thus prepared to bid much higher for support than Henry had felt compelled to do. Adherents had to be gained painfully, one by one, by the grant of special favours to every individual whose support was worth the buying.

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

Even this important ceremony, however, left Stephen’s throne a tottering one; he was compelled to buy the adherence of powerful magnates by lavish concessions of land and franchises; and various charters in favour of individual nobles still exist as witnesses to such bribes. The process by which he built up a title to the Crown seems to have culminated in the Easter of 1136, when he secured the support of Matilda’s half-brother Robert, Earl of Gloucester, 120whose lead was quickly followed by other influential nobles. All of these new adherents, however, performed homage to the King under an important reservation, namely, that their future loyalty would be strictly conditional on the treatment extended to them by Stephen. That unfortunate monarch accordingly, by tolerating such conditional allegiance, was compelled to acknowledge the inherent weakness of his position even in the moment of his nominal triumph.^[174]

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

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

Perhaps its chief provisions are those in favour of the Church, supplementing a vague declaration that the Church should be “free” by specific promises that the bishops should have exclusive jurisdiction and power over churchmen 121and their goods, along with the sole right to superintend their distribution after death. Here was a clear confirmation of the right of the Courts Christian to a monopoly of all pleas affecting the clergy or their property. It is the first distinct enunciation in England of the principle afterwards known as "benefit of clergy"—and that, too, in a form more sweeping than was ever afterwards repeated. Stephen also explicitly renounced all rights inherent in the Crown to wardship over Church lands during vacancies—a surrender never dreamed of by either Henry I. or Henry II.

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

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

It is instructive to compare these wide promises of Stephen with the meagre words of the charter granted by Henry of Anjou at or soon after his Coronation.^[178] 122Henry II. carefully omits all mention of Stephen and his charters, not, as is sometimes supposed, because he did not wish to acknowledge the existence of a usurper, but because of that usurper’s lavish grants to the Church. Henry had no intention either to confirm “benefit of clergy” in so sweeping a form as Stephen had done, or to renounce wardship over the lands of vacant sees.

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

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

123Nor was this all; from a meeting held at St. Albans on 4th August, 1213, writs were issued in the King’s name to the various sheriffs, bidding them observe the laws of Henry I. and abstain from unjust exactions.^[180] Three weeks later (on 25th August), the production of a stray copy of Henry’s charter is said, by Roger of Wendover, to have made a startling impression on all present,^[181] and the same charter was a second time produced at Bury St. Edmunds, on 4th November, 1214, and was accepted by the malcontents as a model which, modified and enlarged, might serve as a basis for the redress of the grievances of the reign.^[182]

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

II. Magna Carta: its Form and Juridical Nature.

Much ingenuity has been expended, without adequate return, in the effort to discover which particular category of modern jurisprudence most exactly describes the Great 124Charter of John. Is it an enacted law, or a treaty; the royal answer to a petition; or a declaration of rights? Is it a simple pact, bargain, or agreement between contracting parties? Or is it a combination of two or more of these? Something has been said in favour of almost every possible view, perhaps more to the bewilderment than to the enlightenment of students of history uninterested in legal subtleties.

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

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

On the other hand, it may be argued that Magna Carta, while something less than a law, is also something more. A law made by the king in one national assembly might be repealed by the king in another; whereas the Great Charter was intended by the barons to be unchangeable. It was granted to them and their heirs for ever; and, in return, a price had been paid, namely, the renewal of their 125allegiance—a fundamental condition of John’s continued possession of the throne.^[183]

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

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

Interesting questions might also be raised as to how far it is correct to extend to treaties the legal rule which declares void or voidable all compacts and agreements induced by force or fear. In a sense, every treaty which ends a great war would fall under such condemnation, since the vanquished nation always bows to force majeure. Such claims 126as the Great Charter may have to rank as a treaty are not, therefore, necessarily weakened by John’s subsequent contention that when granting it he was not a free agent.

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

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

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

Other theories also are possible; as, for example, that the Great Charter is of the nature of a Declaration of Rights, such as have played so prominent a part in the political history of France and of the United States; while a recent American writer on English constitutional development seems almost to regard it as a code, creating a formal constitution for England—in a rude and embryonic form, 127it is true. “If a constitution has for its chief object the prevention of encroachments and the harmonizing of governmental institutions, Magna Carta answers to that description, at least in part.”^[188]

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

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

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

John grants to the freemen of England and their 128heirs certain specified rights and liberties, as though these were merely so many hides or acres of land. Concessimus etiam omnibus liberis hominibus regni nostri, pro nobis et haeredibus nostris in perpetuum, omnes libertates subscriptas, habendas et tenendas, eis et haeredibus suis, de nobis et haeredibus nostris.^[191] The legal effect of such a grant is hard to determine; and insuperable difficulties beset any attempt to expound its legal consequences in terms of modern law.^[192] In truth, the form and substance of Magna Carta are badly mated. Its substance consists of a number of legal enactments and political and civil rights; its form is borrowed from the feudal lawyer’s book of styles for conferring a title to landed estate.^[193]

129The results of this inquiry seem then to be completely negative. It is useless to describe phenomena of the thirteenth century in modern phraseology which would have been unintelligible to contemporaries. Medieval lawyers experienced great difficulties in trying to express the actual facts of their day in terms of such categories of the Roman jurisprudence as had survived the fall of Rome and Roman civilization. There is no one of the ancient or modern categories which can be applied with confidence to the Great Charter or to the transaction of which it is the record. Magna Carta may perhaps be described as a treaty or a contract which enacts or proclaims a number of rules and customs as binding in England, and reduces them to writing in the unsuitable form of a feudal charter granted by King John to the freemen of England and their heirs.

III. Magna Carta: its Contents and Characteristics.

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

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

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

Dr. Gneist^[194] adopts this principle of division, and arranges the chapters of Magna Carta into five groups 130according as they place legal limitations (1) on the feudal military power of the Crown, (2) on its judicial power, (3) on its police power, (4) on its financial power, or (5) furnish a legal sanction for the enforcement of the whole. In spite of Dr. Gneist’s high authority, it is doubtful whether an analysis of Magna Carta upon these somewhat arbitrary lines throws much light on its main objects or results. Such a division, if convenient for some purposes, seems artificial and unreal, since it is founded on distinctions which were not clearly formulated in the thirteenth century. The adoption of such a principle of classification with reference to a period when the various functions of the executive were still blended together indiscriminately is somewhat of an anachronism.^[195]

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

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

The view generally entertained is that the provisions of Magna Carta are chiefly, if not exclusively, of a declaratory nature. The Great Charter has for many centuries been described as an attempt to confirm and define existing customs rather than to change them. In the words of Blackstone,^[196] writing in 1759, “It is agreed by all our historians that the Great Charter of King John was for the most part compiled from the ancient customs of the realm, or the laws of King Edward the Confessor, by which they usually mean the common law, which was established under our Saxon princes, before the rigours 131of feudal tenures and other hardships were imported from the continent.” Substantially the same doctrine has been enunciated only the other day, by our highest authority. "On the whole, the charter contains little that is absolutely new. It is restorative. John in these last years has been breaking the law; therefore the law must be defined and set in writing.^[197] This view seems, on the whole, a correct one; the insurgents in 1215 professed to be demanding nothing new, but merely a return to the good laws of Edward Confessor, as supplemented by the promises contained in the charter of Henry I. An unbroken thread runs back from Magna Carta to the laws and customs of Anglo-Saxon England and the old coronation oaths of Ethelred and Edgar. Yet the Great Charter contained much that was unknown to the days of the Confessor and had no place in the promises of Henry I. In many points of detail the Charter must look for its antecedents rather to the administrative changes introduced by Henry II. than to the old customary law that prevailed before the Conquest.

Thus it is not sufficient to describe Magna Carta merely as a declaratory enactment; it is necessary to distinguish between the different sources of what it declared. A fourfold division may be suggested. (1) Magna Carta embodied and handed down to future ages some of the usages of the old customary law of Anglo-Saxon England, unchanged by the Conqueror or his successors, now confirmed and purified from abuses. (2) In defining feudal incidents and services, it confirmed many rules of the feudal law brought into England by the Normans subsequently to 1066. (3) It also embodied many provisions of which William I. and even Henry I. knew no more than did the Anglo-Saxon kings—innovations introduced for his own purposes by Henry of Anjou, but, after half a century of experience, now accepted loyally even by the most bitter opponents of the Crown. In the words of Mr. Prothero, “We find ... the judicial and 132administrative system established by Henry II. preserved almost intact in Magna Carta, though its abuse was carefully guarded against.”^[198] Finally, (4) in some few points, the Charter actually aimed at going farther than Henry II., great reformer as he was, had intended to go. Thus, to mention only two particulars, the Petty Assizes are to be taken in every county four times a year, while sheriffs and other local magistrates are entirely prohibited from holding pleas of the Crown.

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

Further, it is of vital importance to bear in mind the exact nature of the provisions confirmed or declared. A re-statement of some of the more recent reforms of Henry II. (or of those of Archbishop Hubert Walter, following in his footsteps) leads logically to progress rather than to mere stability; while the professed confirmation of Anglo-Saxon usages or of ancient feudal customs, fast disappearing under the new régime, implies retrogression rather than standing still. Chapters 34 and 39 of Magna Carta, for example, are of this latter kind. They really demand a return to 133the system in vogue prior to the innovations of Henry II. when they declare in favour of feudal jurisdictions. Thus, some of the provisions of the Great Charter which, at a casual glance, appear to be correctly described as declaratory, are, in reality, innovations; while others tend towards reaction.

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

This third principle of arrangement would stand condemned as completely misleading, if it were necessary to accept as true, in any literal sense, the assertions so frequently made concerning the absolute equality of all classes and interests before the law—as that law was embodied in Magna Carta. Here, then, we are face to face with a fundamental question of immense importance: Does the Great Charter really, as the orthodox traditional view so vehemently asserts, protect the rights of the whole mass of humble Englishmen equally with those of the proudest noble? Is it really a great bulwark of the constitutional liberties of the nation, considered as a nation, in any broad sense of that word? Or is it rather, in the main, a series of concessions to feudal selfishness wrung from the King by a handful of powerful aristocrats? On such questions, learned opinion is sharply divided, although an overwhelming majority of authorities range themselves on the popular side, from Coke (who assumes in every page of his Second Institute that the rights won in 1215 were as valuable for the villein as for the baron) down to writers of the present day. Lord Chatham in one of his great orations^[199] insisted that the barons who wrested the Charter from John established claims to the gratitude of posterity because they “did not confine it to themselves alone, but delivered it as a common blessing to the whole people”; and Sir Edward Creasy,^[200] in citing Chatham’s words with approval, caps them with more ecstatic words of his own, declaring that one effect of the Charter was “to give and 134to guarantee full protection for property and person to every human being that breathes English air.” Lord Chatham indeed spoke with the unrestrained enthusiasm of an orator; yet staid lawyers and historians like Blackstone and Hallam seem to vie with him in similar expressions. “An equal distribution of civil rights to all classes of freemen forms the peculiar beauty of the charter”; so we are told by Hallam.^[201] Bishop Stubbs unequivocally enunciated the same doctrine. “Clause by clause the rights of the commons are provided for as well as the rights of the nobles.... This proves, if any proof were wanted, that the demands of the barons were no selfish exactions of privilege for themselves.”^[202]

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

“The rights which the barons claimed for themselves,” says John Richard Green,^[204] before proceeding to enumerate them, “they claimed for the nation at large.” The testimony of a very recent writer, Dr. Hannis Taylor,^[205] may close this series. “As all three orders participated equally in its fruits, the great act at Runnymede was in the fullest sense of the term a national act, and not a mere act of the baronage on behalf of their own special privileges.” It would be easy to add to this “cloud of witnesses,” but enough has been said to prove that it has been a common boast of Englishmen, for many centuries, that the provisions of the Great Charter were 135intended to secure, and did secure, the liberties of every class and individual of the nation, not merely those of the feudal magnates on whose initiative the quarrel was raised.

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

Two different parts of the Charter have a bearing on this question; namely, chapter 1, which explains to whom the rights were granted, and chapter 61, which declares by whom they were to be enforced. John’s words clearly tell us that the liberties were confirmed “to all freemen of my kingdom and their heirs for ever.” This opens up the crucial question—who were freemen in 1215?

The enthusiasm, natural and even laudable in its proper place, although fatal to historical accuracy in its results, which seeks to enhance the merits of Magna Carta by exalting its provisions and extending their scope as widely as possible, has led commentators to stretch the meaning of “freeman” to its utmost limits. The word has even been treated as embracing the entire population of 136England, including not only churchmen, merchants, and yeomen, but even villeins as well. There are reasons, however, for believing that it should be understood in a sense much more restricted, although the subject is darkened by the vagueness of the word, and by the difficulty of determining whether it bears any technical signification or not. “Homo,” in medieval law-Latin, has a peculiar meaning, and was originally used as synonymous with "baro"—all feudal vassals, whether of the Crown or of mesne lords, being described as “men” or “barons.” The word was sometimes indeed more loosely used, as may have been the case in chapter 1. Yet Magna Carta is a feudal charter, and the presumption is in favour of the technical feudal meaning of the word—a presumption certainly not weakened by the addition of an adjective confining it to the “free.” This qualifying word certainly excluded villeins, and possibly also the great burgess class, or many of them. There is a passage in the Dialogus de Scaccario (dating from the close of the reign of Henry II.), in which Richard Fitz-Nigel reckons even the richest burgesses and traders as not fully free. He discusses the legal position of any knight (miles) or other freeman (liber homo) losing his status by engaging in commerce in order to make money.^[207] This does not prove that rich townsmen were ranked with the villani of the rural districts; but it does raise a serious doubt whether in the strict legal language of feudal charters the words liberi homines would be interpreted by contemporary lawyers as including the trading classes. Such doubts are strengthened by a narrow scrutiny of those passages of the Charter in which the term occurs. In chapter 34 the liber homo is, apparently, assumed to be a landowner with a private manorial jurisdiction of which he may be deprived. In other words, he is the holder of a freehold estate of some extent—a great barony or, at the least, a manor. In this part of the Charter the “freeman” is clearly a county gentleman.

137Is the “freeman” of chapter 1 something different? The question must be considered an open one; but much might be said in favour of the opinion that “freeman” as used in the Charter is synonymous with “freeholder”; and that therefore only a limited class could, as grantees or the heirs of such, make good a legal claim to share in the liberties secured by Magna Carta.^[208]

To the question, who had authority to enforce its provisions, the Great Charter has likewise a clear answer, namely, a select band or quasi-committee of twenty-five barons. Although the Mayor of London was chosen among their number, it is clear that no strong support for any democratic interpretation of Magna Carta can be founded on the choice of executors; since these formed a distinctly aristocratic body. Yet this tendency to vest power exclusively in an oligarchy composed of the heads of great families may have been counteracted, so it is possible to contend, by the invitation extended by the same chapter to the communa totius terrae to assist the twenty-five Executors against the King in the event of his breaking faith. Unfortunately, the extreme vagueness of the phrase makes it rash in a high degree to build conclusions on such foundations. It is possible to interpret the words communa totius terrae as applying merely to “the community of freeholders of the land,” or even to 138“the community of barons of the land,” as well as to “the community of all the estates (including churchmen, merchants, and commons) of the land,” as is usually done on no authority save conjecture. Every body of men was known in the thirteenth century as a communa; a word of exceedingly loose connotation.

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

(1) The Feudal Aristocracy. Even a casual glance at the clauses of the Great Charter shows how prominently abuses of feudal rights and obligations bulked in the eyes of its promoters. Provisions of this type must be considered chiefly as concessions to the feudal aristocracy—although 139it is true that the relief primarily intended for them indirectly benefited other classes as well.

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

(3) Tenants of Mesne Lords. When raising troops with the object of compelling John to grant Magna Carta by parade of armed might, the barons were perforce obliged to rely on the loyal support of their own freeholders. It was essential that the knights and others who held under them should be ready to fight for their mesne lords rather than for the King their lord paramount. It was thus absolutely necessary that these under-tenants should receive some recognition of their claims in the provisions of the final settlement. Concessions conceived in their favour are contained in two clauses (couched apparently in no specially generous spirit), namely, chapters 15 and 60. The former limits the number of occasions on which aids might be extorted from sub-tenants by their mesne lords to the same three as were recognized in the case of the Crown. Less than this the barons could scarcely have granted. Chapter 60 provides generally, in vague words, that all the customs and liberties which John agrees to observe towards his vassals shall be also observed by mesne lords, whether prelates or laymen, towards their sub-vassals. This provision has met with a chorus of applause from modern writers. Prof. Prothero declares^[210] that “the sub-tenant was in all cases as scrupulously protected as the 140tenant-in-chief.” Dr. Hannis Taylor^[211] is even more enthusiastic. “Animated by a broad spirit of generous patriotism, the barons stipulated in the treaty that every limitation imposed for their protection upon the feudal rights of the king should also be imposed upon their rights as mesne lords in favour of the under-tenants who held of them.”^[212] It must, however, be remembered that a vague general clause affords less protection than a definite specific privilege; and that in a rude age such a general declaration of principle might readily be infringed when occasion arose. The barons were compelled to do something, or to pretend to do something, for their under-tenants. Apparently they did as little as they, with safety or decency, could.

(4) Something was also done for the merchant and trading classes, but, when we subtract what has been read into the Charter by democratic enthusiasts of later ages, not so much as might reasonably be expected in a truly national document. The existing privileges of the great city of London were confirmed, without specification, in the Articles of the Barons; and some slight reforms in favour of its citizens (not too definitely worded) were then added. An attentive examination seems to suggest, however, that these privileges were carefully refined away when the Articles were reduced to their final form in Magna Carta. The right to tallage London and other towns was carefully reserved to the Crown, while the rights of free trading granted to foreigners were clearly inconsistent with the policy of monopoly and protection dear to the hearts of the Londoners. A mere confirmation to the citizens of existing customs, already bought and paid for at a great price, seems but a poor return for the support given by them to the movement of insurrection at a critical moment 141when John was bidding high on the opposite side, and when their adherence was sufficient to turn the scale. The marvel is that so little was done for them.^[213]

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

Even if we exclude the villein from the general benefits of the grant, it may be, and has been, maintained that some few privileges were insured to him in his own name. One clause at least is specially framed for his protection. The villein, so it is provided in chapter 21, must not be so cruelly amerced as to leave him utterly destitute; his plough and its equipment must be saved to him. Such concessions, however, are quite consistent with a denial of all political rights, and even of all civil rights, as these are understood in a modern age. The Crown and the magnates, so it may be urged, were only consulting their own interests when they left the villein the means to carry on his farming operations, and so to pay off the balance of his debts in the future. The closeness 142of his bond to the lord of his manor made it impossible to crush the one without slightly injuring the other. The villein was protected, not as the acknowledged subject of legal rights, but because he formed a valuable asset of his lord. This attitude is illustrated by a somewhat peculiar expression used in chapter 4, which prohibited injury to the estate of a ward by “waste of men or things.” For a guardian to raise a villein to the status of a freeman was to benefit the enfranchised peasant at the expense of his young master.^[215]

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

143Even if it were possible to neglect the significance of any one of these somewhat trivial points, when all of them are placed side by side their meaning is clear. If the bulk of the English peasantry were protected at all by Magna Carta that was merely because they formed valuable assets of their lords. The Charter viewed them as "villeins regardant"—as chattels attached to a manor, not as members of an English commonwealth.^[219]

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

Yet, when all deductions have been made (and it has seemed necessary to do this with emphasis in order to redress the false balance created by the exaggerations of enthusiasts), the Great Charter still stands out as a prominent landmark in the sequence of events which have led, in an unbroken chain, to the consolidation of the English nation, and to the establishment of a free and constitutional form of polity upon a basis so enduring that, 144after more than eight centuries of growth, it still retains the vigour and the buoyancy of youth.

IV. Magna Carta: an Estimate of its Value.

No evidence survives to show that the men of John’s reign placed any excessive or exaggerated importance on the Great Charter; but, without a break since then, the estimate of its worth steadily increased until it came to be regarded almost as a fetish among English lawyers and historians. No estimate of its value can be too high, and no words too emphatic or glowing to satisfy its votaries. In many a time of national crisis, Magna Carta has been confidently appealed to as a fundamental law too sacred to be altered—as a talisman containing some magic spell, capable of averting national calamity.

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

The numerous factors which contributed towards the worth of Magna Carta may be distinguished as of two kinds, intrinsic and extrinsic. (1) Its intrinsic value depends on the nature of its own provisions. The reforms demanded by the barons and granted by this Charter were just and moderate. The avoidance of all extremes tended towards a permanent settlement, since moderation both gains and keeps adherents. Its aims were practical as well as moderate; the language in which they were framed, clear and straightforward. A high authority has described the Charter as “an intensely practical document.”^[220] This practicality is an essentially English characteristic, and strikes the key-note of almost every great movement for reform which has held a permanent place in English history. Closely connected with this feature is another—the essentially legal nature of the whole. As Magna Carta was rarely absent from the minds of subsequent opponents of despotism, a practical 145and legal direction was thus given to the efforts of Englishmen in many ages.^[221] Therein lies another English characteristic. While democratic enthusiasts in France and America have often sought to found their rights and liberties on a lofty but unstable basis of philosophical theory embodied in Declarations of Rights; Englishmen have occupied lower but surer ground, aiming at practical remedies for actual wrongs, rather than enunciating theoretical platitudes with no realities to correspond.

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

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

(2) Part of the value of Magna Carta may be traced to extrinsic causes; to the circumstances which gave it birth—to its vivid historical setting. The importance of each 146one of its provisions is emphasized by the object-lessons which accompanied its inauguration. The whole of Christendom was amazed by the spectacle of the King of a great nation obliged to surrender at discretion to his own subjects, and that, too, after he had scornfully rejected all suggestions of a compromise. The fact that John was compelled to accept the Charter meant a loss of royal prestige, and also great encouragement to future rebels. What once had happened, might happen again; and the humiliation of the King was stamped as a powerful image on the minds of future generations.

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

When all this has been said, it may still be doubted whether the belief of enthusiasts in the excessive importance of Magna Carta has been fully justified. Many other triumphs, almost equally important, have been won in the cause of liberty, and under circumstances almost equally notable; and many statutes have been passed embodying these. Why then should Magna Carta be invariably extolled as the palladium of English liberties? Is not, when all is said, the extreme merit attributed to it mainly of a sentimental or imaginative nature? Such questions must be answered partly in the affirmative. Much of its value does depend on sentiment. Yet all government is, in a sense, founded upon sentiment—sometimes affection, sometimes fear. Psychological considerations are all-powerful in the practical affairs of life. Intangible and even unreal phenomena have played an important part in the history of every nation. The tie that binds the British colonies at the 147present day to the Mother Country is largely one of sentiment; yet the troopers from Canada and New Zealand who responded to the call of Britain in her hour of need produced practical results of an obvious nature. The element of sentiment in politics can never be ignored.

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

Thus Magna Carta, in addition to its legal value, has a political value of an equally emphatic kind. Apart from 148and beyond the salutary effect of the many useful laws it contained, its moral influence has contributed to a marked advance of the national spirit, and therefore of the national liberties. A few of the aspects of this advance deserve to be emphasized. The King, by granting the Charter in solemn form, admitted that he was not an absolute ruler—admitted that he had a master over him in the laws which he had often violated, but which he now swore to obey. Magna Carta has thus been truly said to enunciate and inaugurate “the reign of law” or “the rule of law” in the phrase made famous by Professor Dicey.^[222]

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

The possibility of the existence of such an alliance, even on a temporary basis, involved the adoption by its chief members of a new baronial policy. Hitherto each great baron had aimed at his own independence or aggrandisement, striving on the one hand to gain new franchises for himself, or to widen the scope of those he already had, and on the other to weaken the king and to keep him outside these franchises. This policy, which succeeded both in France and in Scotland, had before John’s reign already failed signally in England, and the English barons now, on the whole, came to admit the hopelessness of renewing the 149struggle for feudal independence. They substituted for this ideal of an earlier age a more progressive policy. The king, whose interference they could no longer hope completely to shake off, must at least be taught to interfere justly and according to rule; he must walk only by law and custom, not by the caprices of his evil heart. The barons sought henceforward, to control the royal power they could not exclude; they desired some determining share in the national councils, if they could no longer hope to create little nations of their own within the four corners of their fiefs. Magna Carta was the fruit of this new policy.

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

A united English nation, whether conscious or unconsciousunconscious of its identity, cannot be said to have existed in 1215, except under several qualifications. The conception of “nationality,” in the modern sense, is of comparatively recent origin, and requires that the lower as well as the higher classes should be comprehended within its bounds. Further, the coalition which wrested the Charter from the royal tyrant was essentially of a temporary nature, and quickly fell to pieces again. Even while the alliance continued, the interests of the various classes, as has been 150already shown, were far from identical. Political rights were treated as the monopoly of the few (as is evidenced by the retrograde provisions of chapter 14 for the composition of the Commune concilium); and civil rights were far from universally distributed. The leaders of the “national” movement certainly gave no political rights to the despised villeins, who comprised more than three quarters of the entire population of England; while their civil rights were almost completely ignored in the provisions of the Charter.

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

V. Magna Carta. Its defects.

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

This is the chief defect, but not the only one. Many minor faults and omissions may be traced to a similar root. All the great constitutional principles are in reality conspicuously absent. The importance of a council or embryo parliament, constituted on truly national lines (of which some glimmerings can be traced in 1213); the right of such a body to influence the King’s policy in normal times as well as in times of crisis; the doctrine of ministerial responsibility (already dimly foreshadowed in the reign of Richard); the need of distinguishing the various functions 151of government, legislative, judicial, and administrative—all these cardinal principles are completely ignored by the Charter. Not one of its many clauses affords evidence that the statesmen of the day had any conception, even of a rudimentary nature, of the principles of political science.

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

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

If the framers of John’s Magna Carta had possessed any grasp of constitutional principles, they would gladly have seized the opportunity afforded them by the mention, however incidentally, of the Common Council, in chapters 12 and 14, in order to define most carefully the powers which they claimed for it. On the contrary, no list of its functions is drawn up; nor do the words of the Charter contain anything to suggest that it exercised any powers other than that of consenting to scutages and aids. Not a word is said of any right inherent in the Council to a share in legislation, to control or even to advise the Executive, or to concur in choosing the great ministers of the Crown. Neither deliberative, administrative, nor legislative powers 152are secured to it, while its control over taxation is strictly limited to the right to veto scutages and aids—that is say, it only extends over that very narrow class of exactions which affected the military tenants of the Crown. It is true that chapters 21 and 39 may possibly be read confirming the judicial power of the Council in a certain limited group of cases. Earls and barons are not to be amerced except by their peers (per pares suos), and the natural place for these “equals” of a Crown vassal to assemble for this purpose would be the Commune Concilium. This, however, is merely matter of inference; chapter 21 makes no mention of the Council; and it is equally possible that its requirements would be met by the presence among the officials of the Exchequer of a few Crown tenants.^[224] Similar reasoning applies to the provisions of chapter 39 (protecting the persons and property of freemen, by insisting on the necessity of a “trial by peers”) so far as they affect earls and barons.

It is clear that the leaders of the opposition in 1215 did not consider the constitutional powers of a national Parliament the best safeguard of the rights and liberties theoretically guaranteed by the Charter. Only one practical or constitutional expedient seems to have occurred to them, namely, that embodied in chapter 61. Twenty-five barons were to be appointed by their fellow-barons to act as Executors of the Charter; but their functions were apparently only to be called into play in the event of King John or his officers breaking any of the provisions of the Charter. If this occurred, intimation might be made to a smaller sub-committee of four, chosen from the twenty-five, and these four would straightway ask the King to redress the grievance complained of. If this was not done within forty days, John granted to the Committee of twenty-five, assisted by “the whole community of the realm,” the right practically to make war upon him. He conferred on them in the most explicit terms full power “to distrain and distress us in all possible ways, by seizing 153our castles, lands, possessions, and in any other way they can, until the grievances are redressed according to their pleasure.”

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

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

Thoughtful and statesmanlike as were the provisions of Magna Carta, and wide as was the ground they covered, 154many important omissions can be pointed out. Some crucial questions seem not to have been foreseen, and others, for example the liability to foreign service, were deliberately shelved^[227]—thus leaving room for future misunderstandings. The praise, justly earned, by its framers for the care and precision with which they defined a long list of the more crying abuses, must be qualified in view of the failure to provide procedure to prevent their recurrence. Men had not yet learned the force of the maxim, so closely identified with all later reform movements in England, that a right is valueless without an appropriate remedy to enforce it.^[228]

VI. Magna Carta: Value of Traditional Interpretations.

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

The uses to which it has been put, and the interpretations which have been read into it, are so numerous and so varied, that they would require a separate treatise to do them justice. Not only was Magna Carta, as will be shown in some detail in a later section, frequently reissued and confirmed, but its provisions have been asserted and re-asserted time after time, in Parliament, in the courts of justice, and in institutional works on jurisprudence. Its influence has thus been threefold; and any attempt to explain its bearing on the subsequent history of English liberties would require to distinguish between 155these three separate and equally important aspects. (1) It has supplied a powerful instrument in the hands of politicians, especially of the leaders of the House of Commons in the seventeenth century, when waging the battle of constitutional freedom against the Stewart dynasty. (2) Its legal aspect has been as important as its political one, since it has been cited in innumerable litigations before the various courts of law. In the course of legal debate and of judicial opinions, it has been the subject of many and conflicting interpretations, some of them accurate and some erroneous. (3) Finally, it has been discussed in many commentaries either exclusively devoted to its elucidation or else treating of it incidentally in the course of general expositions of the law of England.

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

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

156Nor has this tendency to unthinking adulation been entirely confined to popular writers; judges and institutional authors, even Sir Edward Coke himself, have too often lost the faculty of critical and exact scholarship when confronted with the virtues of the Great Charter. There is scarcely one great principle of the English constitution of the present day, or indeed of any constitution in any day, calculated to secure national liberties, or otherwise to win the esteem of mankind, which has not been read by commentators into the provisions of Magna Carta. In particular, the political leaders of the seventeenth and eighteenth centuries discovered among its chapters every important reform which they desired to introduce into England, thereby disguising the revolutionary nature of many of their projects by dressing them in the garb of the past.

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

157If these tendencies to excessive and sometimes ignorant praise have been unfortunate from one point of view, they have been most fortunate from another. The legal and political aspects must be sharply contrasted. On the one hand, the vague and inaccurate words used in speaking of the Charter even by great lawyers, such as Coke (not necessarily equally great as historians, living as they did in an age when the science of history was unknown), have not only obscured the bearing of many chapters, but have done a distinct injury to the study of the development of English law. On the other hand, as the mistakes made in commenting on the Charter have been almost entirely due to a laudable desire to extend as widely as possible its provisions in favour of individual and national liberties, and to magnify generally its importance; the service these very errors have done to the cause of constitutional progress is measureless. If political bias has coloured the interpretation placed on many of the most famous clauses, the ensuing benefit has accrued not to any one narrow party or faction, not to any separate class or interest, but rather to the entire body politic and to the cause of national progress in its widest and best developments.

Thus the historian of Magna Carta, while bound to correct estimates now seen to be erroneous in the light of modern research, cannot afford to despise or under-estimate the value of traditional interpretations. The meanings which have been read into it by the learned men of later ages, and which have been acquiesced in by public opinion of the day, have had an equally potent effect whether they were historically well founded or ill founded. The stigma of being banned by the Great Charter was usually too great a burden for any institution or line 158of policy to bear. If the belief prevailed that an abuse complained of was really prohibited by Magna Carta, the most arbitrary king had difficulty in finding judges who would declare it legal, or trustworthy ministers who would persevere in enforcing it. The prevalence of such a belief was the main point; whether it was well or ill founded was, for political purposes, quite immaterial. The greatness of Magna Carta lies not so much in what it was to its framers in 1215, as in what it afterwards became to the political leaders, to the judges and lawyers, and to the entire mass of the men of England in later ages.

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

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

Magna Carta, embodying as it does many of the innovations of Henry of Anjou, necessarily contains indications of the existence of these tendencies. Yet, as these occur incidentally in various provisions of unconnected chapters, and as they cannot readily be recognized, on account of the technical language in which they are usually couched and the apparently trivial points of legal procedure to which they relate, it seems well to preface the separate consideration 159of each of them under its appropriate chapter, by a short account of their mutual relations. This will conduce to a clear understanding alike of trial by jury and of the Great Charter itself.

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

The old English institution of the frithborh—the practice of binding together little groups of neighbours for preservation of the peace—and the custom of sending representatives of the villages to the Hundred Courts, had alike accustomed the natives to corporate action and formed in some sort precedents for what their Norman masters compelled them to do, namely, to give their evidence on local matters jointly and on oath. Further, one form of the jury—the jury of accusation—is clearly foreshadowed (in spite of the complete breach of continuity in the intervening period) by the directions given to the twelve senior 160thegns of each Wapentake by a well-known law of Ethelred. Yet the credit of establishing the jury system as a fundamental institution in England is undoubtedly due to the Norman and Angevin kings, although they acted in their own interests and not in those of their oppressed subjects, and although they had no clear vision of the ultimate consequences of what they did. The uses to which the Inquisitio was put by William and his sons in framing Domesday Book, collecting information about existing laws, and dispensing justice, have already been discussed.^[233]

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

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

161(2) By insisting that the ordeal was the only adequate test of an accused man’s guilt or innocence, Henry unconsciously prepared the way for a second form of jury. When the fourth Lateran Council in the very year of Magna Carta forbade priests to countenance ordeal by their presence or blessing, a death-blow was really dealt to that form of procedure or “test,” since it depended for its authority on superstition. A canon of the Church had thus suddenly struck away the pivot on which Henry had made his entire criminal system to revolve. Some substitute required urgently to be devised. It was to supply this that the petty jury (or its rude antecedent) came into existence. The man who had been publicly accused as presumably guilty by the voice of his neighbours, was asked if he was willing to stand or fall by a further and final reference to the oath of a second jury of neighbours. This second verdict, then, was the new “test” or “law” substituted, if the accused man agreed, for his old right of proving himself innocent by the ordeal. By obscure steps, on which those best entitled to speak with authority are not yet agreed, this jury, giving a second and final verdict, gradually developed into the criminal jury of twelve, the petty jury of to-day, the characteristics of which are well known and which has had so important an influence on the development of constitutional liberties in England, and even, it is said, on the national character.

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

(3) The Civil Jury owes its origin to quite a different set of reforms, though inaugurated by the same reformer. 162Among the evil legacies left to Henry II. from Stephen’s reign, not the least troublesome were the numerous claims advanced by rival magnates to the various estates and franchises which had been bestowed with equally lavish hands, but on different persons, by Matilda and Stephen. Henry realized the urgent need of giving his realm rest by protecting vested interests and by introducing a more rational expedient than trial by combat for deciding between rival claimants to landed estates. Here again he had recourse to a new development of “inquisition.” In such cases an option was given to the defendant (the man in possession, the man with a vested interest which deserved protection), to refer the question at issue to the verdict of local recognitors, twelve knights or freeholders in this case, and therefore men of some position. The name “Assize” was, for reasons to be immediately explained, applied alike to the procedure itself and to the twelve neighbours who gave the verdict.

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

In these cases, the defendant could escape “battle” and compel the plaintiff, even against his will, to submit his claim to the verdict of the recognitors. This new-fangled privilege of the defendant had no basis in the ancient custom of the land, but depended solely on royal prerogative. The king, by a high-handed act of power, thus favoured the defendant, by depriving the claimant 163of that remedy which was his right by feudal law, namely, the resort to the legal duel. It was because the new procedure was thus founded on a royal Ordinance, that the name “Assize” was applied to it. The assisa was a remedy strictly confined to four groups of pleas.

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

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

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

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

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

165The Charter in its new form was really a manifesto issued by the moderate men who rallied round the throne of the young King; it may be viewed in two aspects, as a declaration by the Regent and his co-adjutors of the policy on which they accepted office, and as a bid for the support of the barons who still adhered to the faction of the French prince. Its issue was, indeed, dictated by the crucial situation created by the presence in England of Prince Louis of France supported by a foreign army and by a large faction of the English barons who had sworn homage to him as their king. It was, therefore, framed in terms likely to conciliate such of the opposition as were still open to conciliation. Yet the new Charter could not be a verbatim re-issue of the old one. Vital alterations were required by the altered circumstances.^[239] It was no longer the expression of a reluctant consent by the government of the day to the demands of its enemies, but rather a set of rules deliberately accepted by that government for its own guidance. The chief tyrant against whom the original provisions had been directed was now dead, and certain forms of tyranny, it was confidently hoped, had died with him. Restraints now placed on the Crown’s prerogatives would only hamper the free action of the men who framed them, not of their political opponents. The new beneficent government must not suffer for the sins of the old evil one. The Regent, while willing to do much for the cause of conciliation, could not afford to paralyze his own efficiency at a time when foreign invaders were in possession of one-half of England, from which it would require a supreme effort to dislodge them. In especial, the Crown, in its urgent need for money wherewith to pay the wages of its mercenaries, must suffer no unnecessary restraints upon its powers of taxation. The existing civil war made 166it imperative that the government should retain a free hand in exacting feudal services and in levying scutages. Moderate-minded men would readily acquiesce in the wisdom of this policy; while it was useless to modify it in the hope of conciliating the extreme party who had thrown in their lot irretrievably with Prince Louis.

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

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

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

(4) A number of minor omissions of a miscellaneous nature may be grouped together; for example, chapter 27, providing that the chattels of every freeman who died intestate should be divided under the supervision of the Church; chapter 41, granting freedom to leave the 167kingdom, and return, without the king’s consent; chapter 45, by which the Crown restricted itself in the choice of justiciars and other officers; and the latter half of chapter 47, relating to the banks of rivers and their guardians.^[241]

(5) These various alterations implied, incidentally rather than deliberately, the omission of all mention of such constitutional machinery as had found a place in the words of John’s Great Charter. The twenty-five Executors fell with the other temporary provisions; while chapter 14, which defined the composition and mode of summons of the Commune Concilium, was omitted as a matter of course, along with chapter 12, to which it had merely formed a supplement. It was apparently thought unnecessary to make any mention of the Council, and this attitude may be explained partly on the ground that the framers of the new deed took for granted its continued existence in the future as in the past, and partly by the consideration that its vital importance as a constitutional safeguard had not yet been realized. Chapter 14 of 1215, to which much importance is invariably attached by modern writers, probably held quite a subordinate place in the minds of its framers 168and was abandoned altogether in 1216, never to be replaced.^[242]

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

The importance of the omissions is considerably minimized, however, by two considerations. (a) Many of the original provisions were merely declaratory, and their omission in 1216 by no means implied that they were then abolished. The common law remained what it had been previously, although it was not considered necessary to specify those particular parts of it in black and white. In particular, throughout the entire reign of Henry, the Commune Concilium frequently met, and was always, in practice, consulted before a levy was made of any scutage or aid. (b) It is clearly stated in the new charter that the advisability of replacing these omitted clauses was reserved for further consideration at some more opportune occasion. In the so-called “respiting clause” (chapter 42) 169six topics were specially named as thus reserved because of their “grave and doubtful” import: the levying of scutages and aids, the debts of the Jews, the liberty of going from and returning to England, the forest laws, the “farms” of counties, and the customs relating to banks of rivers and their guardians. This respiting clause amounts to a definite engagement by the King to take into serious consideration at some future time (probably as soon as peace had been restored) how far it would be possible to re-insert the omitted provisions in a new charter. This promise was partially fulfilled a year later.^[243]

A practical difficulty confronted the advisers of the young King as to the execution of the Charter. No instance of a Regency had occurred since seals came into general use; and, therefore, neither law nor custom afforded precedents for the execution of documents during a king’s minority. The seal of a king, like that of any ordinary magnate, was personal to him, and not available for his heir. The custom indeed was to destroy the matrix when a death occurred, and thus to prevent its being put to improper uses. John’s great seal could no longer be used,^[244] and the advisers of Henry III. shrank from the responsibility of making a new one for the infant monarch. Yet no charter would be binding unless executed with all the recognized formalities. In these circumstances it was resolved to authenticate the new Charter by impressing on it the seals of the papal legate and of the Regent. 170Henry 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.”

The issue of the new Charter was not immediately successful in bringing the civil war to an end; but a stream of waverers flowed from Louis to Henry, influenced partly by the success of the national faction in the field and partly by the moderate policy of the government typified by the re-issue of the Charter. On 19th May, 1217, the royalists gained a decisive victory at the battle known as the “Fair of Lincoln”; and, on 24th August following, Hubert de Burgh, the Justiciar, destroyed the fleet on which Louis depended. The French prince was compelled to sue for peace. Although negotiations were somewhat protracted, the resulting Treaty of Lambeth bears date the 11th September, 1217, the day on which they opened.^[245] Several interviews took place at Lambeth between 11th and 13th September, and these were followed by a general conference at Merton, commencing on the 23rd, at which Gualo, Louis, the Regent, and many English nobles were present.^[246] Some difference of opinion exists as to the exact stages of these negotiations,^[247] and it seems best to treat as one whole the settlement ultimately arranged. “The treaty of Lambeth is, in practical importance, scarcely inferior to the charter itself.”^[248] It marked the final acceptance by the advisers of the Crown of the substance of Magna Carta as the permanent basis of government for England in time of peace, not merely as a provisional expedient in time of war. Its terms were equally honourable to both parties: to the Regent and his supporters, because of the moderation they displayed; and to Louis who, while renouncing all claim to the English Crown, did so only on condition of a full pardon 171to his allies, combined with the guarantee of their cause, so far at least as that was embodied in the Charter. Ten thousand marks were paid to Louis, nominally as indemnity for his expenses; but he had in return to restore the Exchequer Rolls, the charters of the Jews (that is the rolls on which copies of their starrs or mortgages had been registered),^[249] the Charters of Liberties granted by John at Runnymede, and all other national archives in his possession. Sir William Blackstone thinks it probable that, under this clause of the treaty, the original of the Articles of the Barons was handed over, and deposited among the other archives of the Archbishop of Canterbury at Lambeth Palace where it remained until the middle of the seventeenth century.^[250] One condition of this general pacification was of supreme importance—the promise given by the Regent and the papal legate to grant a new and revised Charter. This promise was fulfilled some six weeks later, a Charter of Liberties and a separate Forest Charter being issued on the 6th November, 1217.^[251]

The issue of these two Charters put the copestone to the general pacification of the kingdom. After the wide-spread 172havoc wrought by two years of civil war, the moment had come for a definite and final declaration by the Regent of his policy for ruling an England once more at peace. Not only was he bound in honour to this course by the Treaty of Lambeth, but the opportunity was a good one for fulfilling the promise made in chapter 42 of the Charter of 1216. Accordingly the respiting clause of that document now disappeared altogether, and some new clauses took its place. The matters reserved for further discussion as “gravia et dubitabilia” had now been reconsidered and were either finally abandoned, or else accepted with more or less radical alterations. The results of these deliberations are to be found in a number of additions to the Charter of Liberties of 1217, the most important of which are chapters 44 and 46, and in the terms of a Forest Charter now granted for the first time.

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

Chapter 44 directed that scutages should be taken in the future as they had been wont to be taken in the time of Henry II. Now, the rates of scutage and the procedure for levying it in that reign had been quite specific, and could still be read among the Rolls of the Exchequer recently recovered from Prince Louis. It was thus easy to define the various innovations of John’s reign, those well-hated additional burdens which had furnished the chief motive for the civil war, and which Henry III. was now made to promise should be utterly swept away. This general condemnation probably included the increased frequency of John’s exactions, the assessment of scutages on the new basis provided by the Inquest of 1212, the levy of both scutage and service cumulatively, and, above all, the exaction of the high rate of three marks per knight’s 173fee. The essence of the demands pressed on the government by the baronial leaders in 1217 must undoubtedly have been the return to the normal maximum rate of 20s. per knight’s fee. Henry II., we have seen, sometimes took less, but only on one occasion took more.^[252] This provision, it should be needless to say, did not preclude the barons individually or collectively from volunteering to contribute at a higher rate; and the necessity of such abnormal contributions would naturally be determined at meetings of the Commune Concilium.

The substitution of this definite stipulation of a return to the well-known usage of Henry II. in place of the discarded chapters 12 and 14 of John’s Charter (which made “common consent” necessary for all scutages, whatever the rate) was a natural compromise; and the barons in agreeing to it were probably quite justified in thinking, from their own medieval point of view, that they were neither submitting to any unfair abridgments of their rights, nor yet countenancing any reactionary measures hurtful to the growth of constitutional liberty.^[253] Yet when this alteration is viewed by modern eyes in the light cast by the intervening centuries of constitutional progress, and when it is remembered that the new clause formed the chief part of the concessions made in 1217 to baronial claims, the conclusion inevitably suggests itself that the new agreement is the proof of retrograde tendencies successfully at work. All mention of the Commune Concilium—that predecessor of the modern Parliament, 174that germ of all that has made England famous in the realm of constitutional laws and liberties—disappears, apparently without protest or regret. If the control of taxation by a national assembly, if the conception of representation, if the indissoluble connection of these two principles with each other, ever really found a place in Magna Carta, they were contemptuously ejected from it in 1216, and failed to find a champion in 1217 to demand their restoration.

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

Such considerations, however, must not be pressed too far. It should not be forgotten that no one seriously thought in 1217, any more than in 1216, of dispensing with future meetings of the feudal tenants in Commune Concilium. Great Councils indeed continued to meet with increasing frequency throughout the reign of Henry III., and the consent of the magnates therein assembled was habitually asked to scutages even at a lower rate than that which had been normal in Henry II.’s reign. Sometimes such consent was given unconditionally; sometimes 175in return for a new confirmation of the cherished Charters; sometimes, even, it was met by an absolute refusal—the first distinct instance of which seems to have occurred in January, 1242.^[254]

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

So far the Charter of 1217, with its restorations and additions, may be regarded as a politic effort to secure the support of the barons by satisfying their reasonable demands; but it may also be viewed in three other aspects: (1) as containing provisions for suppressing the anarchy still prevalent in several districts, a legacy from the civil war; (2) as amending some few details of the original grant which the experience of two years had shown to be defective or objectionable; and (3) as making a first attempt to solve certain problems of government which had come quite recently to the foreground, but which were not successfully grappled with until three-quarters of a century 176later, when the legislative genius of Edward Plantagenet was brought to bear upon them.

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

The re-issue of 1217 may also be regarded as bearing some analogy to a modern amending Statute. Experience, for example, had suggested the desirability of several alterations in the procedure for holding petty assizes. Many objections had been taken to the dispatch of Justices, with commissions to hold assizes in the various counties, so frequently as four times every year. It was now agreed to reduce these circuits from once a quarter to once a year—a concession to those who felt the burden of too frequent attendance.^[259] Although the king’s Justices were still to enjoy the co-operation of knights from each county, it was no longer specially mentioned that these knights should be elected. All pleas of darrein presentment were removed from the jurisdiction of the Justices on circuit, and reserved 177for the consideration of “the Bench,” presumably now settled at Westminster.^[260] The two other assizes (novel disseisin and mort d’ancestor) were still left to the king’s Justices in the respective counties where the lands lay, but difficult points of law were reserved for “the Bench.”^[261] The inferiority of the Justices of Assize to the Courts at Westminster was thus made clear.

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

Two questions, destined to become of supreme importance in the future, have also left traces on this re-issue of the Charter:—on chapters 39 and 43 respectively. The former treats of the vexed question of a feudal tenant’s right to dispose of parts of his holding by gift or sale. There were two different methods of effecting this—by way of subinfeudation or by way of substitution: the tenant 178might create a new link in the feudal chain by granting part of his lands to a third party, who became his vassal as a result of the new grant; or he might endeavour to make the donee the direct vassal of his overlord, quoad the land he had newly acquired. There was here a direct conflict of interest between overlord and tenant, which extended to both ways of conveying land. Freedom to sell it or give it away was clearly an advantage to the tenant; while the lord objected to a transaction which might thrust on him new vassals he did not desire, or might divide between two or more vassals the obligations formerly incumbent on one, making the incidence of feudal burdens uncertain and their enforcement more difficult. Chapter 39 contained a compromise. The tenant might part with a portion of his holding, provided the balance he reserved was sufficient to ensure full performance by himself of the obligations due to the lord. The original vassal thus remained primarily liable for the whole of the feudal obligations (whatever right of relief he might have against his donees or sub-tenants), and must reserve in his own hands sufficient lands out of the proceeds of which to fulfil them. The final solution of the problem, here temporarily disposed of, was contained in the Statute commonly known as Quia Emptores,^[264] which allowed the tenant to dispose of parts of his estate by way of substitution, while forbidding subinfeudation entirely.

Chapter 43 marks the growing hostility against the accumulation by the monasteries of wealth in the form of landed estates, and begins the series of legislative measures which culminated in the Statute of Mortmain.^[265] The times were not ripe in 1217 for a final solution of this problem, and the charter of that year contented itself with an attempt to remedy one of the subsidiary abuses of the system merely, and not to abolish the main evil. An ingenious expedient had been devised by lawyers to enable tenants to cheat their lords out of some of the 179lawful feudal incidents. Religious houses formed one species of corporation, and all corporations made bad tenants, since, as they never died, the lord of the fief was deprived of the possibility of a wardship, relief, or escheat falling to him. This was a hardship; but it was not unfair, provided that the transaction which made the abbey or monastery owner of the subjects was a bona fide one. Sometimes, however, more or less collusive agreements were made between a lay free-holder and a religious house whereby a new link was inserted in the feudal chain to the prejudice of the freeholder’s lord. The freeholder bestowed his lands on a particular house, which took his place as the new tenant of the lord and then subinfeudated the same subjects to the original tenant, who thus got his lands back again, but now became tenant of the church, not of his former lord. The lord was thus left with a corporation for his tenant and lost all the profitable incidents, which would, under the new arrangement, accrue to the church when the freeholder died. Such expedients were prohibited, under pain of forfeiture, by chapter 43 of the re-issue of 1217; and this prohibition was interpreted very liberally by the lords in their own favour.^[266]

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

180The Regent and the ministers of the Crown seem to have felt increasingly the inconvenience of conducting the government without a great seal of the King. There was a natural reluctance to accept grants authenticated merely by substitutes for it, since these might not be treated as binding on the monarch when he came of age. The Regent at last agreed to the engraving of a great seal for Henry, but not without misgivings. To prevent it being used by unscrupulous ministers to validate lavish grants to their own favourites to the impoverishment of the Crown, the Council, on the advice of the Regent, issued a proclamation that no charter or other deed implying perpetuity should be granted under the new seal during the King’s minority—a saving clause of which Henry was destined to make a startling use. This proclamation was probably issued soon after Michaelmas 1218.^[270]

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

The terms of this papal letter may have suggested to some of Henry’s councillors the possibility of renouncing 181the Charters on the ground that they had been granted to the prejudice of the King before he had been declared of full age. One of his flatterers, William Briwere by name, at a “colloquium” held in January, 1223, advised him to repudiate the two Charters when requested by Stephen Langton to confirm them. Briwere’s bold words are reported by Matthew Paris.^[273] “Libertates quas petitis, quia violenter extortae fuerunt, non debent de jure observari.” This doctrine of repudiation moved the primate to anger, and Henry, still accustomed to leading-strings, gave way, swearing to observe the terms of both charters. An element of truth, however, underlay Briwere’s advice, and the whole incident probably showed to the more far-seeing friends of liberty the necessity of a new and voluntary confirmation of the Charters by the King. An opportunity for securing this occurred next year, when Henry at Christmas, 1224, demanded one-fifteenth of all his subjects’ moveables. He was met by a firm request that he should, in return for so large a grant, renew Magna Carta. The result was the re-issue on 11th February, 1225, of both Charters each of which was, as a matter of course, fortified by the impression of the great seal recently made. The importance of the whole transaction was enhanced by the declaration made by Honorius III. only two years previously, that Henry was of full age to act for himself. The new forest Charter was practically identical with that issued in 1217; while the only alterations in the tenor of the Charter of Liberties were the result of a laudable determination to place on record the circumstances in which it had been granted. In the new preamble Henry stated that he conceded it “spontanea et bona voluntate nostra” and all reference to the consent of his magnates was omitted, although a great number of names appear as witnesses at the close of the Charter. These alterations were intended to emphasize the fact that no pressure had been brought to bear on him, and thus to meet future objections such as William Briwere 182had suggested in 1223, namely, that the confirmation of the Charter had been extorted by force.^[274]

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

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

One original copy of this third re-issue of the Great Charter is preserved at Durham with the great seal in green wax still perfect, though the parchment has been 183“defaced and obliterated by the unfortunate accident of overturning a bottle of ink.”^[276] A second is to be found at Lacock Abbey, in Wiltshire. The accompanying Forest Charter is also preserved at Durham.^[277]

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

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

The young King, in spite of the Pope’s bull declaring him of full age in 1223, had in reality only passed from one set of guardians to another; he had long chafed under the domination of the able but unscrupulous Peter des Roches, Bishop of Winchester, when in the beginning of 1227 he suddenly rebelled. Acting probably under the advice of Hubert de Burgh, who wished to return to power, Henry determined to shake off the control of Bishop Peter. At a Council held at Oxford in January, 1227, Henry, though not yet twenty, declared himself of full age;^[279] and soon thereafter showed what use he intended to make of his newly acquired freedom. Making an unexpected application of the proclamation issued by the Regent, 184William Marshal, in 1218, that the great seal should not, during the minority, be used to authenticate any grants in perpetuity of royal demesne lands or other rights of the Crown, Henry now interpreted this to imply the nullity of all charters whatsoever which had been issued under the great seal since his accession. He even tentatively applied this startling doctrine to the Forest Charter.

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

Fears, apparently unfounded, that the Great Charter was in danger, seem to have been rife. If Henry really entertained any intention of setting aside Magna Carta, it is fortunate that the attack upon it, suggested to the King by William Briwere in January, 1223, was not seriously attempted until four years later. The delay was of supreme importance, since there had intervened the third re-issue of the Charter containing the declaration that the King had acted voluntarily, and fortified by the facts that Honorius had previously declared him of full age for such purposes, and that he had accepted a price for the confirmation of the Charter. Henry could not now repudiate the papal dispensation which he had gladly accepted and acted upon four years earlier. In this way the re-issue of both charters in 1225 had gone far to secure the national liberties. Henry shrank from any open infringement of the Great 185Charter; and, although he was partially successful in restoring the forests to their old wider boundaries, thus undoing many reforms of his minority, he proceeded without violating the letter of the Forest Charter. Henceforward, Henry’s attitude towards the charters was a settled one, and easily understood. He confirmed them with a light heart whenever he could obtain money in return, and thereafter acted as though they did not exist.

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

A Statute of 1369 (42 Edward III. c. 1), requires special notice, since it commands that “the Great Charter and the Charter of the Forest be holden and kept in all points, and if any statute be made to the contrary that shall be holden for none.” Parliament in 1369 thus sought to deprive future Parliaments of the power to effect any alterations upon the terms of Magna Carta. Yet, if Parliament in that year had the power to add anything by a new legislative enactment to the ancient binding force of the Great Charter, it follows that succeeding Parliaments, in possession of equal powers, might readily undo by a second statute what the earlier statute had sought to 186effect. If Parliament had power to alter the sacred terms of Magna Carta itself, it had equal power to alter the less sacred statute of 1369 which declared it unalterable. The terms of that statute, however, are interesting as perhaps the earliest example on record of the illogical theory (frequently reiterated in later years) that the English Parliament might use its present legislative supremacy in such a manner as to limit the legislative supremacy of other Parliaments in the future.

II. Magna Carta and the Reforms of Edward I.

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

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

187At the same time, the attitude even of Henry III. towards Magna Carta indicates a distinct advance upon that of his father. It was much that the advisers of John’s infant heir solemnly accepted, on behalf of the Crown, the provisions of the Charter, and strove to enforce them during the minority; and it was even more that Henry, on attaining majority, confirmed the arrangement thus arrived at, freely and on his own initiative, and found himself thereafter unable openly to repudiate the bargain he had made. Yet the settlement of the dissensions between Crown and baronage was still nominal rather than real. In the absence of proper constitutional machinery, the king was merely bound by bonds of parchment which he could break at pleasure. The victory of the friends of liberty proved a hollow one, since unsupported promises count for little in the great struggles fought for national liberties. Even the crude constitutional devices of the Charter of 1215 entirely disappeared from its confirmations; and, in the absence of all sanctions for its enforcement, the Charter became an empty expression of good intentions. If a quarrel arose, no constitutional expedient existed to reconcile the disputants—nothing to obviate a final recourse to the arbitrament of civil war. Thus, part of the blame for the recurring and devastating struggles of the reign of Henry III. must be attributed to the defects of the Great Charter.

The whole interest of the reign indeed lies in the various attempts made to evolve adequate machinery for enforcing the liberties contained in Magna Carta. Experiments of many kinds were tried in the hope of turning theory into practice. The system of government outlined in the Provisions of Oxford of 1258, for example, reproduced the defects of the crude scheme contained in chapter 61 of the Great Charter, and added new defects of its own. It sought to keep the king in the paths of good government by the coercion of a body of his enemies. This baronial committee was not designed to enter into friendly co-operation with Henry in the normal work of 188government, but rather to supersede entirely his right to exercise certain of the royal prerogatives. No glimmering was yet apparent of the true solution afterwards adopted with success. It was not yet realized that the best way to control the Crown was through the agency of its own ministers, and not by means of a hostile opposition organized for rebellion—that the correct policy was to make it difficult for the king to rule except through regular ministers, and to secure that all such ministers should be men in whom the Commune Concilium reposed confidence and over whom it exercised control.

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

The personal humiliation of Simon de Montfort, however, 189in reality assured the ultimate triumph of the cause he had made his own. Prince Edward, from the moment of his brilliant victory at Evesham, was not only supreme over his father’s enemies, but henceforth he was supreme also within his father’s councils. He found himself in a position at once to realize some of his most important political ideals; and from the very moment of his victory, he adopted as his own, with some modification, it is true, the main constitutional conceptions of his uncle Earl Simon, who had been his friend and teacher before he became his deadliest enemy.

Edward Plantagenet, alike when acting as the chief adviser of his aged father and after he had succeeded him on the throne, not only accepted the main provisions of the Great Charter,^[283] but adopted also, along with them, a new scheme of government which formed their necessary counterpart. To Edward is due the first dim conception of “parliamentary government,” to this extent at least, that the king, as head of the executive government, should take a national council into partnership with him in the work of national administration. His political ideals were the natural result of the experience obtained during the later years of his father’s reign; and he endeavoured to embody in his scheme of government the best parts of the various experiments in which that reign abounded. His policy, although founded on that of his uncle Simon de Montfort, was profoundly modified by his own individual genius. The very fact of the adoption of Earl Simon’s ideals by the heir to the throne entirely altered their chances of success. All such schemes had been foredoomed to failure so long as they merely emanated from an opposition leader however powerful; but their triumph was speedily assured now that they were accepted as a programme of reform by the monarch himself. Henceforth the new political ideals, summed up in the conception of a national Parliament, 190were to be fostered by the Crown’s active support, not merely thrust upon the monarchy from without.

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

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

The powers of this assembly also widened almost automatically, with the widening of its composition. Taxation 191was its original function, since that was the primary purpose (so the best authorities maintain in spite of some adverse criticism) for which the representatives of the counties and the boroughs had been called to it. Legislation, or the right to veto legislation, was soon added—although at first the new-comers had only a humble share in this. The functions of hearing grievances and of proffering advice had, even in the days of the Conqueror, belonged to such of the great magnates as were able to make their voices heard in the Curia Regis; and similar rights were gradually extended to the humbler members of the augmented assembly. The representatives of counties and of towns retained rights of free discussion even after Parliament had split into two separate Houses. These rights, fortified by command of the purse strings, tended to increase, until they secured for the Commons some measure of control over the executive functions of the king. This parliamentary control varied in extent and effectiveness with the weakness of the king, with his need of money, and with the political situation of the hour.

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

The Council thus became neutral ground on which the conflicting interests of king and baronage might be discussed and compromised. Wild schemes like that of chapter 61 of Magna Carta or like that typified in the 192Committee appointed by the Mad Parliament in 1258, were now unnecessary. The king’s own ministers, backed by Parliament, became an adequate means of enforcing the constitutional restraints embodied in royal Charters. The problem was thus, for the time being, solved. A proper sanction had been devised, fit to change royal promises into realities.

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

This temporary solution, during the reign of Edward I., of an ever-recurring problem of government has been viewed in two different aspects. It is sometimes regarded simply as the result of the pressure of events—as a natural phenomenon evolved, subject to natural laws, to meet the needs of the age. By other writers it is attributed to the wisdom and conscious action of King Edward. The two views are perhaps not so inconsistent as they at first sight seem, since great men work in harmony with the spirit of their times, and appear to control events which they only interpret and express. The bargain made at Runnymede between the English monarch and the English 193nation found its necessary counterpart and sanction, before the close of the thirteenth century, in the conception of a king ruling through responsible ministers and in harmony with a national Parliament. Edward Plantagenet was merely the instrument by whose agency the new conception was for a time partially realized. Yet, he merits the gratitude of posterity for his share in the elaboration of a working scheme of government, which took the place of the clumsy expedients designed as constitutional sanctions by the barons in 1215. He supplied the logical complement of the theories vainly enunciated in John’s Great Charter, thus changing empty expressions of good intentions into accomplished facts. The ultimate triumph of the principles underlying Magna Carta was assured through the constitutional machinery devised by Edward Plantagenet.

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

I. Manuscripts of Magna Carta and Relative Documents.

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

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

(1) The British Museum Magna Carta, number one—formally cited as “Cotton, Charters XIII. 31A.” The recent history of this document is well known. It was found among the archives of Dover Castle in the seventeenth century; and not improbably it may have lain there for centuries before, possibly from a date not much 195later than that of its original execution; for the castle of Dover, like the Tower of London, was a natural place for the preservation of documents of national value. There it was discovered by Sir Edward Dering while warden of the castle, and by him it was presented to Sir Robert Cotton, accompanied by a letter dated 10th May, 1630.^[285] It still forms an item in the collection preserved in the British Museum, which bears the name of the famous antiquary.

In the great fire of 23rd October, 1731, which attacked the Cottonian Library, this valuable Charter was seriously damaged and rendered in parts illegible, while the yellow wax of the seal was partially melted. It is possible that this accident has added somewhat to the prestige of this particular copy of Magna Carta, which, like the three others still extant, is written continuously, though with many contractions, in a neat, running, Norman hand. A special characteristic of this version is that some omissions seem to have been made in the body of the deed and to have been supplied at the foot of the parchment. These are five in number.^[286] It is possible to regard them as corrections of clerical omissions due to carelessness or hurry in engrossing the deed; but the fact that one of the additions is distinctly in the King’s favour raises a strong presumption that they embodied additions made as afterthoughts to what had been originally dictated to the engrossing clerk, 196and that they were inserted at the King’s suggestion before he would adhibit the great seal.

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

(2) The British Museum Magna Carta, number two—formally cited as “Cotton, Augustus, II. 106.” The early history of this document is unknown, but sometime in the seventeenth century it came into the possession of Mr. Humphrey Wyems, and by him it was presented to Sir Robert Cotton on 1st January, 1628–9. Unlike the other Cottonian copy, this one is happily in an excellent state of preservation; but there is no trace left of any seal.^[287] Three of the five addenda inserted at the foot of the copy previously described are found in a similar position here; but the substance of the two others is included in the body of the deed. On the left-hand margin, titles intended to be descriptive of several chapters occur in a later hand.^[288] Thus for the preservation of two original copies of the national charter of liberties the nation is indebted to Sir Robert Cotton, but for whose antiquarian zeal they might both have been lost. Apparently, however, a story told by several authors^[289] as to the humiliating 197fate which threatened the original Magna Carta must be rejected. Sir Robert, it is said, discovered “the palladium of English liberties” in the hands of his tailor at the critical moment when the scissors were about to transform it into shapes for a suit of clothes. This is undoubtedly a fable, since both manuscripts of Magna Carta in the Cottonian collection are otherwise accounted for.

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

(4) The Salisbury Magna Carta—preserved in the archives of the Cathedral there. The early history of this manuscript has not been traced, but its existence was known at the close of the seventeenth century.^[291] Sir William Blackstone, in April, 1759,^[292] instituted a search for it, but without success—his inquiries being met with the statement that it had been lost some thirty years before, during the execution of repairs in the Cathedral library. As its 198disappearance had really taken place during the tenure of the see by Gilbert Burnet, whose antiquarian interests were well known, his political adversaries accused him of appropriating it—an undoubted calumny, yet one to which some colour was lent by facts to be hereafter explained. The document had not been re-discovered in 1800 when the royal commission published its report of the result of its inquiries for national records.^[293] Two sub-commissioners visited Salisbury in 1806 in search of it, but obtained no satisfaction. It seems, however, to have been re-discovered within the next few years, since it is mentioned in a book published in 1814,^[294] and it is now exhibited to the public by order of the Dean and Chapter of Salisbury Cathedral. It resembles the Lincoln copy both in its beautiful leisurely writing and also in the absence of additions at the bottom of the parchment.^[295]

II. Comparison of the Originals. Prior to the publication of Sir William Blackstone’s great work, extraordinary confusion seems to have prevailed concerning the various Charters of Liberties. Not only was John’s Magna Carta confused with the various re-issues by Henry; but these latter were known only from an official copy of the Charter of 1225 contained in the confirming statute of the twenty-eighth year of the reign of Edward I., known as an “Inspeximus,” because of the opening word of the King’s declaration that he had seen the document of which he gave 199a copy. Neither Madox^[296] nor Brady^[297] was aware of the existence of any one of the four originals; and no mention is made of them in the first edition of Rymer’s Foedera, which appeared in 1704. Mr. Tyrrell indeed seems to have known of the second original copy in the British Museum and also of the Salisbury version.^[298] Mr. Care^[299] showed no clear knowledge of the various manuscripts, though he mentioned the existence of several. Even Sir William Blackstone in 1759 collated only the two Cottonian copies, since he failed to find that of Salisbury, and was unaware of the existence of the Lincoln manuscript.^[300]

As these four versions are practically identical in their substance—the variations being merely in the use of contractions or in other verbal changes of a trivial character—no important question seems to be involved in the discussion as to whether any one of them has greater value than the others. The Record Commissioners considered that the Lincoln copy was the first to be completed (and therefore 200that it possessed special authority), because, unlike the two Cottonian copies, it contained no insertions at the foot of the instrument. Yet it seems more plausible to argue that this very immunity from clerical errors, or from additions made after engrossment, proves that it was of later and less hurried execution than the others, and therefore of less authority, if any distinction is permissible. Mr. Thomson has much ground for his contention in speaking of the fire-marked version in the British Museum that “the same circumstances may probably be a proof of its superior antiquity, as having been the first which was actually drawn into form and sealed on Runnymede, the original whence all the most perfect copies were taken.”^[301]

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

III. The Articles of the Barons. Of hardly inferior historical interest to these four original copies of the Great Charter is the parchment which contains the heads of the agreement made between John and the rebels on 15th June, 1215, from which the Charter was afterwards expanded. The parchment containing these heads, known as the Articles of the Barons, is now in the British Museum, cited officially as “Donation MSS. 4838.” The seven centuries which have passed over it have left surprisingly few traces; it is quite legible throughout, and still bears the impression of John’s great seal in brown wax. It is probable that this document may have passed with other English records into the hands of Prince Louis during the civil war which followed close on the transaction at 201Runnymede; that it was handed over to the Regent William Marshal in terms of the Treaty of Lambeth concluded in September, 1217; and that thereafter it was deposited in Lambeth Palace, where it remained until the middle of the seventeenth century. Archbishop Laud seems to have been aware of its historical interest, as he placed it among the more precious documents in his keeping. When threatened with impeachment by the Long Parliament, he thought it prudent to set his papers in order; and on 18th December, 1640, he dispatched for that purpose to his episcopal palace, his friend Dr. John Warner, Bishop of Rochester.

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

Bishop Burnet left it as a legacy to his son Sir Thomas Burnet; and on his death it passed to his executor David Mitchell, whose permission to print it Blackstone obtained 202in 1759. Shortly thereafter it was purchased from Mr. Mitchell’s daughter by another great historian, Philip, second Earl of Stanhope, and by him it was presented to the British Museum in 1769. It is now exhibited to the public along with the two Cottonian copies of Magna Carta. The Record Commissioners have reproduced it in facsimile in Statutes of the Realm in 1810, and also in the New Rymer in 1816.^[302]

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

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

IV. The so-called “unknown Charter of Liberties.” Among the French archives there is preserved the copy of what purports to be a charter granted by King John, but irregular in its form. This document is preserved among the Archives du Royaume in the Section Historique and numbered J. 655.^[304] A copy of this copy was discovered at the Record Office in London by Mr. J. Horace Round in 2031893, previous to which date it seems to have been practically unknown to English historians, although it had been printed by a French writer thirty years earlier.^[305] Mr. Round communicated his discovery of this “unknown charter of liberties” to the English Historical Review, in the pages of which there ensued a discussion as to its nature and validity, inaugurated by him. Three theories were suggested: (a) Mr. Round maintained that the document was a copy, in a mangled form perhaps, of a charter actually granted in the year 1213 by King John to the northern barons, containing concessions which they had agreed to accept in satisfaction of their claims.^[306] (b) Mr. Prothero preferred to view it, not as an actually executed charter, given and accepted in settlement of the various claims in dispute, but rather as an abortive proposal made by the King early in 1215 and rejected by the barons.^[307] (c) Mr. Hubert Hall dismissed the document as a forgery, and described it as "a coronation charter attributed to John by a French scribe in the second decade of the thirteenth century"—probably between November, 1216, and March, 1217, when King Philip desired to prove that John had committed perjury by breaking his promises, and had thereby forfeited his right to the Crown of England.^[308]

Mr. Hall describes the method of procedure adopted by the compiler of this supposed forgery. Placing in front of him copies of Henry I.’s Charter of Liberties and of Henry III.’s charters issued in 1216-17, he proceeded to select from these sources whatever suited his purpose, and thereafter “either by design or carelessness, or ignorance of English forms, he altered the wording of both his originals so as to produce the effect of a paraphrase interspersed with archaisms.” This extremely ingenious theory is not entirely convincing. Not to insist on the number of unproved inferences on which it is based, it seems to have 204one grave defect—it ignores the absurdity of attempting to obtain credence for such a clumsy composition, especially when it was well known that John had never granted a coronation charter at all. Even if a skilful forger could have utilized the document as the basis for a completed charter, this would still have required the impress of John’s great seal to give it validity. Such an imposture could not be seriously intended to impose on any one.

A fourth theory may be suggested very tentatively, namely, that the document in question is a copy of the actual schedule drawn up by the barons previous to 27th April, 1215. That such a schedule existed we know from the express declaration of Roger of Wendover,^[309] who informs us that it was sent to the King with the demand that his seal should be forthwith placed to it, under threat of civil war. From this, it is safe to infer that the schedule, as it left the barons’ hands, was ready for execution; but lack of experience in drawing up Crown charters would prevent them from producing an entirely regular instrument. They would assuredly take as their model the charter of Henry I., which had helped to give definiteness of aim to all their efforts. It would be necessary, however, to bring this up to date, by additions which we might a priori expect to resemble the provisions afterwards adopted with more elaboration in the agreement made at Runnymede. This schedule, then, rapidly thrown together, would be likely to contain many of the characteristics actually discovered by Mr. Hall in the document under discussion. Such an identification of the “unknown Charter of Liberties” with the schedule of 27th April, 1215, would explain all the features emphasized by Mr. Hall—the archaisms, the erroneous style, and the employment, first of the third person singular, and then of the first person singular, instead of using throughout the first person plural invariably used by John. It would also explain why the first half of the parchment on which the “unknown charter” is written, contains a 205copy of Henry I.’s charter, and why the two possess so many features in common.

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

II. Previous Editions and Commentaries.

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

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

The early historians were content to rely either on this version or on that contained in the Inspeximus of Edward I. Thus, in all early printed collections of statutes, the text which professes to represent the original Charter follows in 206reality the words of Henry’s third re-issue. The very earliest printed edition of Magna Carta seems to have been that published on 9th October, 1499, by Richard Pynson, the King’s printer,^[311] and a contemporary of Wynkyn de Worde. This was not, of course, John’s Charter, but followed Edward’s Inspeximus of Henry’s Charter of 1225.

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

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

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

(3) A carefully revised text, Magna Carta regis Johannis, was published by Dr. Stubbs in 1868; and the various charters are also to be found, arranged in chronological order, in his well-known volume, first published in 1870, entitled Select Charters and other illustrations of 207English Constitutional History, a convenient collection easily accessible to all students of law and history.

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

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

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

208(2) Dismissing the Mirror, then, as a dangerous and possibly disingenuous guide, the earliest serious commentary known to exist is that of Sir Edward Coke, formerly Lord Chief Justice. This elaborate treatise, forming the second of Coke’s four Institutes, was published in 1642 under direction of the Long Parliament, the House of Commons having given the order on 12th May, 1641.^[315]

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

(3) In 1680 Mr. Edward Cooke, barrister, published 209a small volume entitled Magna Charta made in the ninth year of King Henry III. and confirmed by King Edward I. in the twenty-eighth year of his reign. This contained a translation of Henry’s Magna Carta with short explanatory notes founded mainly on the commentary of Sir Edward Coke. In his Preface, Mr. Cooke declared that his object was to make the Great Charter more accessible to the public at large, since, as he said, “I am confident, scarce one of a hundred of the common people, know what it is.”

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

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

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

(7) Mr. John Reeves’ invaluable History of English Law, the first edition of which appeared in 1783-84, marked the commencement of a new epoch in the scientific study 210of the genesis of English law. Treating incidentally of Magna Carta, he shows wonderful insight into the real purport of many of its provisions, but the state of historical knowledge when he wrote rendered many serious errors inevitable.

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

(9) In many respects, the most valuable contribution yet made to the elucidation of the Great Charter is that contained in M. Charles Bémont’s preface to his Chartes des Libertés Anglaises, published in 1892. Although he has subjected himself to the severe restraints imposed by the slender size of his volume and by a rigid desire to state only facts of an undisputed nature, leaving theories strictly alone; he has, nevertheless, done much to help forward the study of the charters. In particular he has performed an important service by insisting upon the close mutual connection between the various Charters of Liberties, from that of Henry I. down to the confirmations of Edward I., and of subsequent kings. It is doubtful, however, whether by this very insistence upon the gradual process of development which may be traced in this long series, he does not lay himself open to the misconception that he takes too narrow a view of the scope and relations of the Charter. Magna Carta’s points of contact with the past and future history of English liberties and English laws and institutions must not be narrowed down to those occurring in one straight line. Its antecedents must not be looked for exclusively among documents couched in the form of charters, nor its results merely in their subsequent confirmations. It is impossible to understand it aright, except in close relation to all the varied aspects of the 211national life and the national development. Every Act appearing on the Statute Rolls is, in a sense, an Act amending Magna Carta; while such enactments as the Statute of Marlborough and the Statute of Westminster I. have as intimate a connection with John’s Great Charter as the Confirmatio Cartarum or the Articuli super Cartas have. This is a truth which M. Bémont undoubtedly recognizes, though the scheme of his book led him rather to emphasize another and, at first sight, contradictory aspect of his subject. His object was not to explain the numerous ways in which the Charters of Liberties are entwined with the whole of English history, but merely to furnish a basis for the accurate study of one of their most important features. His book is indispensable, but is not intended to form, in any sense, a commentary on Magna Carta.

It would thus appear that only two serious attempts have been made to produce treatises forming, explicitly and exclusively, commentaries on the Great Charter, namely the Second Institute of Coke and the laborious and useful work of Mr. Richard Thomson. Since Mr. Thomson’s Magna Charta appeared, three-quarters of a century have passed, marking an enormous advance in historical and legal science; yet the results of modern research, so capable of throwing light on the subject-matter of the Great Charter, have never been systematically brought to bear upon it. Dr. Stubbs, from whom such a work would have been especially welcome, contented himself with giving a paraphrase or abstract of the Charter, rendering into English equivalents as literally as possible the actual words of his Latin text—a cautious course, which cannot lead his disciples astray, but leaves them to the guidance of their own ignorance rather than of his knowledge. The reason given by Dr. Stubbs for keeping silence is rather the excess than the absence of information. “The whole of the constitutional history of England,” he tells us, “is little more than a commentary on Magna Carta.”^[318] It 212is for this reason, presumably, that he refrains from all explanations and confines himself to an abstract of its main provisions. While thus many invaluable hints may be obtained from the pages of the three volumes of his history, and from his other works, Dr. Stubbs has not in any of his published writings contributed anything of the nature of a direct commentary upon John’s Great Charter. In this policy, he has been followed by the members of the great modern school of English historians of which he is the founder.^[319]

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

PREAMBLE.^[322]

Johannes Dei gratia rex Anglie, dominus Hibernie, dux Normannie et Aquitannie, et comes Andegavie, archiepiscopis, episcopis, abbatibus, comitibus, baronibus, justiciariis, forestariis, vicecomitibus, prepositis, ministris et omnibus ballivis et fidelibus suis salutem. Sciatis nos intuitu Dei et pro salute anime nostre et omnium antecessorum et heredum nostrorum, ad honorem Dei et exaltationem sancte Ecclesie, et emendacionem regni nostri, per consilium venerabilium patrum nostrorum, Stephani Cantuariensis archiepiscopi tocius Anglie primatis et sancte Romane ecclesie cardinalis, Henrici Dublinensis archiepiscopi, Willelmi Londoniensis, Petri Wintoniensis, Joscelini Bathoniensis et Glastoniensis, Hugonis Lincolniensis, Walteri Wygorniensis, Willelmi Coventriensis, et Benedicti Roffensis episcoporum; magistri Pandulfi domini pape subdiaconi et familiaris, fratris Aymerici magistri milicie Templi in Anglia; et nobilium virorum Willelmi Mariscalli comitis Penbrocie, Willelmi comitis Sarresburie, Willelmi comitis Warennie, Willelmi 216comitis Arundellie, Alani de Galeweya constabularii Scocie, Warini filii Geroldi, Petri filii Hereberti, Huberti de Burgo senescalli Pictavie, Hugonis de Nevilla, Mathei filii Hereberti, Thome Basset, Alani Basset, Philippi de Albiniaco, Roberti de Roppeleia, Johannis Mariscalli, Johannis filii Hugonis et aliorum fidelium nostrorum.

The Great Charter of John opens, in the form common to all royal charters of the period, with a greeting from the sovereign to his magnates, his officials, and his faithful subjects, and announces, in the pious legal formula 217used by impious and pious kings alike, that he had made certain grants by the advice of those counsellors whom he names. Three features of this preamble call for comment.

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

John began his reign in 1199 as ruler over the undivided possessions of the House of Anjou at their widest stretch, extending without a break, other than the waters of the Channel, from the Cheviots to the Pyrenees. These lands were held by John, as by his father, under a variety of titles and conditions. Anjou, the original home and fief of the hot-blooded Plantagenet race, still carried with it only the modest rank of count. In addition to 218this paternal title, Henry II. had, at an early age, become duke of Normandy in his mother’s right, and thereafter duke of Aquitaine by marriage with Eleanor, its heiress. These three great fiefs were held by Henry and his sons under the king of France as their lord paramount. Long before 1215, John’s bad fortune or incompetence had lost to him these wide continental dominions except the most distant of them all, his mother’s dowry of Aquitaine. His ancestral domains of Anjou and Normandy had been irretrievably lost, but he still retained their empty titles; and in this his son Henry III. followed him, grasping the shadow long after the substance had fled. Entries relating to Gascony frequently appear on the Rolls of Parliament of Edward I.; and the kings of England were styled dukes of Aquitaine, dukes of Guienne, or dukes of Gascony (the three descriptions being used indifferently) until Edward III. merged all these titles in a wider one, when he claimed the throne of France.

England alone, of John’s possessions, real and nominal, was held by the higher style of “Rex,” implying strictly sovereign rule, independent of any overlord, and retained by John in 1215 in spite of his recent acceptance of Innocent III. as feudal overlord. Of Ireland, John was still content to describe himself, as formerly, “lord,” not king. The exact meaning of the word “Dominus” in medieval charters, particularly in those of Stephen, has been made the subject of much learned controversy; which has not yet resulted in a consensus of opinion as to the technical meaning, if any, borne by the word.^[326] “Dominus,” indeed, seems to have been loosely used wherever something of substance or of ceremonial was lacking from the full sovereignty implied in the more specific name of king. In this connection much stress was laid on the solemn sacrament of coronation, implying 219among other things formal consecration by the church.^[327]

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

Thus Henry I. and Stephen each laid stress on the strong points of his title and ignored its defects. These two claims of kingship express, in a crude form, two rival theories of the title to the English Crown—(1) hereditary succession, and (2) election. Neither of these is an accurate reflection of the full theory and practice of the twelfth century, which blended both principles in proportions not easy to define with accuracy. Professor Freeman has pushed to excess the supposed right of the Witenagemot to elect the king, and has transferred wholesale to the Norman Curia (which, in 220some respects, took its place) all the powers enjoyed by its forerunner. A recent German writer, Dr. Oskar Rössler,^[331] has gone equally far in the opposite direction, flatly denying that the Normans ever admitted the elective element at all. The theory now usually held is a mean between these extremes, namely that the Norman Curia (or the chief magnates who usually composed it) had a limited right of selecting among the sons, brothers, or near relations of the last king, the individual best suited to succeed him. Such a right, never authoritatively enunciated, gradually sank to an empty formality. Its place was taken, to some extent, by the successful assertion by the spiritual power (usually represented by the archbishop of Canterbury), of a claim to give or withhold the consecrating oil which accompanied the church’s blessing. Without this no dominus could be recognized as rex. On this theory the descriptions of their own titles given by Henry I. and Stephen were alike incomplete: each ignored the facts which did not suit him. John, on the contrary, secure in possession, condescends on no particulars, but contents himself with the terse assertion of the fact of his kingship: “Johannes, dei gratia, Rex Anglie.”

II. The Names of the Consenting Nobles. It was natural that the Charter should place formally on record the assent of those counsellors who attended John when he made terms with his enemies, of those magnates who remained in at least nominal allegiance, and were therefore capable of acting as the mediators by whose good offices peace was for a time restored.^[332] The leading men in England during this crisis 221may be arranged in three groups: (1) the leaders of the great host openly opposed to John at Runnymede; (2) the agents of John’s oppressions, extreme men, mostly aliens, many of whom were in command of royal castles or of mercenary levies ready to take the field; and (3) moderate men, mostly churchmen or John’s ministers or relations, who, whatever their sympathies might be, remained in allegiance to the king and helped to arrange terms of peace—a comparatively small band, as the paucity of names recited in Magna Carta testifies.^[333] The men, here made consenters to John’s grant of Magna Carta, are again referred to, though not by name, in chapter 63, in the character of witnesses.

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

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

223This first of the sixty-three chapters of Magna Carta here places side by side, bracketed equal as it were, (a) a general confirmation of the privileges of the English national church, and (b) a declaration that the various civil rights to be afterwards specified in detail were granted “to all freemen” of the kingdom and to their heirs for ever. The manner of this juxtaposition of the church’s rights with the lay rights of freemen, suggests an intention to make it clear that neither group was to be treated as of more importance than the other. If the civil and political rights of the nation at large occupy the bulk of the Charter, and are defined in their minutest details, the church’s rights, of which no mention whatever had been made in the Articles of the Barons, receive here a prior place.^[337] A twofold division thus suggests itself.

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

224Henry II. was careful to avoid making any such promises: his whole reign was an effort, not unsuccessful in spite of the terrible disadvantage at which he was placed by the murder of Becket, to deprive the church of what her leaders considered her legitimate “freedom.” John in 1215, however, receded from the ground occupied by his father, confirming by the Great Charter the promise given by the weakest of his Norman predecessors, in a phrase repeated in all subsequent confirmations.

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

“Freedom of the church” had thus come in 1136 to include “benefit of clergy” in a specially sweeping form, and much besides.^[342] It is easy to understand why churchmen 225cherished an elastic phrase which, wide as were the privileges it already covered, might readily be stretched wider. Laymen, on the contrary, contended for a more restrictive meaning; and the Constitutions of Clarendon must be viewed primarily as an attempt to arrive at definite conclusions on disputed points of interpretation. Henry II. substantially held his ground, in spite of his nominal surrender after Becket’s murder. Thanks to his firmness, "the church’s freedom" shrank to more reasonable proportions, so that the well-known formula, when repeated by John, was emptied of much of the content found in it by Stephen’s bishops. If it still implied “benefit of clergy” that phrase was now read in a more restricted sense, while wardship over vacant sees was expressly reserved to the Crown by John. Chapter 18 of Magna Carta accepted, apparently with the approval of all classes, the principle that questions of church patronage (assizes of darrein presentment)^[343] should be settled before the King’s Justices, a concession to the civil power inconsistent with the more extreme interpretations formerly put by churchmen on the phrase.^[344]

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

226(2) Canonical election. A separate charter to the national church had been granted on 21st November, 1214, and re-issued on 15th January, 1215.^[346] Its tenor may be given in three words, “freedom of election.” In all cathedral and conventual churches and monasteries, the appointment of prelates was to be free from royal intervention for the future, provided always that licence to fill the vacancy had first been asked of the king. Now, in words, this was no new concession, but merely a confirmation of the Concordat arrived at long before between Henry I. and archbishop Anselm as a solution of the rival claims of Church and State in the election of bishops and abbots.^[347] The essence of that arrangement had been to vest solely in the canons of the chapter of the vacant diocese the nominal right to appoint the new bishop, subject, however, to the actual election taking place in the royal court or chapel—so that the king, being present, might endeavour to prevent the appointment of any churchman he objected to. The result had not been what Anselm and the papal court expected; Henry I. and his successors strenuously used or abused the influence thus reserved to them: none but royal favourites were ever appointed, and the nominally free canonical election became a sham. Churchmen had long desired to remedy this: Langton saw his opportunity, and on 21st November, 1214, secured from King John, so far as mere words could secure anything, that the right of election by the canons of the chapter should henceforth be transformed from a pretence into a reality. The bishops present at 227Runnymede used their influence to have a distinct confirmation of this recent concession inserted in the very forefront of Magna Carta.

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

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

An interesting, if purely academic, question might be raised as to how far the rights guaranteed by Magna Carta to the English church were meant to imply freedom from papal as well as from royal interference. It is clear that the movement which culminated in the charter of 21st November, 1214, originated in England, not at Rome; and apparently Nicholas, the papal legate at that date, opposed the endeavours of Stephen Langton to obtain it. The archbishop indeed looked upon the legate as the chief obstacle to the reform by the king of the grievances of the national 228church.^[349] In spite of Magna Carta, then, the independence of the national church retrograded, rather than advanced, during the long alliance between Henry III. and the successive occupants of the papal throne.^[350]

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

Another interesting point, though of minor importance, calls for separate treatment. John does not state that his grants of civil and political rights had been made spontaneously. Whether deliberately or not, there is here a marked distinction between the phraseology applied to secular and to ecclesiastical rights respectively. While the concessions to churchmen are said to have been granted “mera et spontanea voluntate,” no such statement is made about the concessions to the freemen. John may have favoured this omission as strengthening his contention that the Great Charter had been sealed by him under compulsion. In the third re-issue of Henry III. (1225) this defect was remedied—the words “spontanea et bona voluntate nostra” 229being used in its preamble.^[352] Some importance seems to have been attributed to this addition, which formed the essence of a concession bought by the surrender of one-fifteenth of the moveable property of all estates of the realm.

CHAPTER TWO.

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

All preliminaries concluded, the Charter at once attacked what was, in the barons’ eyes, the chief of John’s abuses, his arbitrary increase of feudal obligations. The Articles of the Barons, indeed, had plunged at once into this most 230crucial question without a word by way of pious phrases or legal formulae, such as were necessary in a regular Charter.

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

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

231Every year, however, made for definition; and custom pointed with increasing authority towards 100s. per knight’s fee, and £100 for a barony. Two entries on the Pipe Roll of 10 Richard I. amusingly illustrate the unsettled practice. A sum of £100 is described as a “reasonable relief” for a barony, and immediately this entry is stultified by a second entry of a considerable additional payment by way of “fine” to induce the king to accept the sum his own roll had just declared “reasonable.”^[355] John was 232more openly regardless of reason. The Pipe Roll of 1202 shows how an unfortunate heir failed to get his heritage until he paid 300 marks, with the promise of an annual “acceptable present” to the king.^[356]

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

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

233The Charter deals only with tenure by knight’s service; nothing is said of other tenures. The explanation of the omission may possibly be different in the cases of socage and of serjeanty respectively.^[361] (a) Socage. The barons were not so vitally interested in socage, that being, in the normal case, the tenure of humbler men.^[362] In later reigns the king, like an ordinary mesne lord, contented himself with one year’s rent of socage lands in name of relief. (b) Serjeanty. The barons cannot have been indifferent to the fate of serjeanties, since many of them held great estates by such tenures. Possibly they assumed that the rules applied to knights’ fees and baronies would apply to serjeanties as well. The Crown, however, acted on a different view; large sums were frequently extorted by Henry III. By the reign of Edward I., however, the practice of the exchequer was to limit itself to one year’s rent (a sufficiently severe exaction)^[363] for serjeanties, which thus fell into line with socage.^[364]

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

(1) Feodum militis integrum. The origin of the knight’s fee is obscured by a network of conflicting theories. A thread of connection is sometimes traced between it and the mysterious five-hide unit of Anglo-Saxon times; other authorities would ascribe its introduction into England to a definite act of some great personage—either William the 234Conqueror, according to Selden, who founds on a well-known but untrustworthy passage in Ordericus Vitalis, or Ranulf Flambard, according to Freeman, Stubbs, and Gneist. It seems probable that the Normans, here as elsewhere, pursued their policy of avoiding an open rupture with the past, and that the Conqueror adapted as far as possible the existing system of land tenure to his own needs. There is little doubt, in light of the evidence accumulated by Mr. Round in his Feudal England, that William I. stipulated verbally for the service of a definite number of knights from every fief bestowed by him on his Norman followers. A knight’s fee or scutum thus became a measure of military service, and of feudal assessment; servitium unius militis was a well-known legal unit. But a difficult problem arises when it is asked what definite equation, if any, existed between land and service. Three answers have been given: (a) A definite ratio exists between amount of service and extent of ground. In other words, the knight’s fee contains a fixed area of land; every five hides sent one warrior, thus preserving the old Anglo-Saxon unit.^[365] (b) The ratio lies not between service and extent, but between service and value. An estate of £20 annual rental sends one knight to the king’s wars; the normal knight’s fee contains 20 librates of land.^[366] (c) Other authorities deny that any proportion exists at all: William the Conqueror exacted from each of his grantees precisely as much or as little knight’s service as he saw fit.

Is it not possible to reconcile these divergent conclusions? Undoubtedly the Conqueror held himself bound by no fixed rules, but made exceptions where he pleased: some favoured foundations were exempt from all service whatsoever.^[367] Yet, if he distributed estates at his own free will, he did not necessarily distribute them irrationally or at random. He demanded service of knights in round 235numbers, 5 or 10 or 20, as he saw cause, and in normal cases he was guided by some loose sense of proportion. Where there was no reason either for preferential treatment or for special severity, service would be roughly proportionate either to the area or to the value. This rule was William’s servant, not his master, and was made to yield to many exceptions, which would amply account for the existence in later days of knight’s fees varying from 2 hides to 14 hides, instead of the normal 5.^[368] Each such fee, whatever its acreage or its rental, owed the service of one knight, and paid relief at 100s.

(2) Baronia integra. The word “barony” cannot be easily defined, on account of the many changes it has undergone.^[369] A “barony” at the Norman Conquest differed in almost every respect from a “barony” at the present day. The word baro was originally synonymous with homo, meaning, in feudal usage, a vassal of any lord. It soon became usual, however, to confine the word to king’s men; “barones” were thus identical with "crown tenants"—a considerable body at first; but a new distinction soon arose between the great men and the smaller men among their number (between barones majores and barones minores). The latter were usually called knights (milites), while “baron” was reserved for the holder of an “honour.”^[370] For determining what constituted an “honour,” however, it was impossible to lay down any absolute criterion. Mere size was not sufficient: 236a magnate once classed as a full “baron” might successfully claim to be only a “knight,” thus lightening some of his feudal burdens, for example this one of “reliefs.” Chapter 14 of Magna Carta helped to stereotype the division, since it stipulated that each major baro should receive an individual writ of summons to the Council, leaving the barones minores to be convened collectively through the sheriff. As the one point of certainty, where everything else was vague, these writs came to possess an exaggerated importance, and it was finally held (at a date long subsequent to Magna Carta) that the mere receipt of a special summons, if acted upon, made the recipient a baron, and entitled his heirs, in all time coming, to succeed him in what was fast hardening into a recognized title of dignity. The “barons” in 1215 knew nothing of all this; they desired merely to have the reliefs due by them taxed at a fixed rate. Each “barony” should pay £100, a sum afterwards reduced to 100 marks.

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

(3) Baronia comitis integra. A peculiar phrase is used in the text, an "earl’s barony" appearing where “earldom” might be expected.^[372] The reason is that “earldom” originally implied the holding of an office and not the 237ownership of land, whereas relief was payable for the earl’s lands or “honour,” not for his office. The Charter, therefore, uses words well fitted to make its meaning clear. The earl (or comes) was the successor of the ealdorman as local governor of a county or group of counties. His title was official, not tenurial, or even, in early times, necessarily hereditary.

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

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

Very gradually in after ages, the conception of an 238earldom suffered change. The official character gave way before the idea of tenure, and later on the modern conception was formulated of a hereditary dignity conferring specific rank and privileges. The period of transition when the tenurial idea prevailed is illustrated by the successful attempt of Ranulf, earl of Chester and Lincoln, in the reign of Henry III. to aliene one of his two earldoms—described by him as the comitatus of Lincoln.^[374] Earls are now, like barons, created by letters patent, and need not be land-owners. Thus the words “barony” and “earldom,” so diverse in their origin and early development, were closely united in their later history.

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

It was not then unnatural that, when a prelate died, the Crown should demand “relief” from his successor, in the same way as from the heir of a dead lay baron. Such demands, when made by William Rufus and his minister Flambard, met with bitter opposition. The Crown in consequence, unwilling to forego any of its feudal dues, endeavoured to shift their incidence from the revenues of the see to the shoulders of the feudal under-tenants. After bishop Wulfstan’s death on 18th January, 2391095, a writ was issued in William’s name to the freeholders of the see of Worcester, calling on each of them to pay, as a relief due on their bishop’s death, a specified sum, assessed by the barons of the exchequer.^[376]

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

CHAPTER THREE.

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

The Crown is here forbidden to exact relief where it had already enjoyed wardship. It was hard on the youth, escaping from leading-strings, to be met, when he “sued out his livery,” with the demand for a large relief by the 240exchequer which had already appropriated all his available revenue. The same event, namely, the ancestor’s death, was thus made the excuse for two distinct feudal incidents.^[378]

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

The alterations in that reissue were not altogether in the vassal’s favour. Another addition made a reasonable stipulation in favour of the lord, which incidentally illustrates the theory underlying wardship. The essence of tenure in chivalry was the grant of land in return for military services. Only a knight was capable of bearing arms; hence it was that the lord held the lands in ward until the minor should reach man’s estate. Ingenious attempts had apparently been made to defeat these legitimate rights of feudal lords by making the infant heir 241a “knight,” thus cutting away the basis on which wardship rested. The reissue of 1216 prevented this, providing that the lands of a minor should remain in wardship, although he was made a knight.^[380] Incidentally, the same Charter of Henry declared twenty-one years to be the period at which a military tenant came of age, a point on which John’s Charter had been silent.

In one case, exceptionally, wardship and relief might both be exacted on account of the same death, though not by the same lord. Where the dead man had formerly held two estates, one of the Crown and one of a mesne lord, the Crown might claim the wardship of both, and then the disappointed mesne lord was allowed to exact relief as a solatium for his loss.^[381]

CHAPTER FOUR.

Custos terre hujusmodi heredis qui infra etatem fuerit, non capiat de terra heredis nisi racionabiles exitus, et racionabiles consuetudines, et racionabilia servicia, et hoc sine destructione et vasto hominum vel rerum; et si nos commiserimus custodiam alicujus talis terre vicecomiti vel alicui alii qui de exitibus illius nobis respondere debeat, et ille destructionem de custodia fecerit vel vastum, nos ab illo capiemus emendam, et terra committatur duobus legalibus et discretis hominibus de feodo illo, qui de exitibus respondeant nobis vel ei cui eos assignaverimus; et 242si dederimus vel vendiderimus alicui custodiam alicujus talis terre, et ille destructionem inde fecerit vel vastum, amittat ipsam custodiam, et tradatur duobus legalibus et discretis hominibus de feodo illo qui similiter nobis respondeant sicut predictum est.

This chapter and the next treat of wardship,^[382] a much hated feudal incident, which undoubtedly afforded openings for grave abuses. It is a mistake, however, to regard its mere existence as an abuse: it seems to have been perfectly legal in England from the date of the Norman Conquest, although some writers^[383] consider it an innovation devised by William Rufus and Flambard, without precedent in the Conqueror’s reign. The chief argument for this mistaken view is that Henry I., in promising redress of several admitted inventions of Rufus, promised also to reform wardship. This may show that wardship was abused, but does not prove it an innovation.

The Charter of Henry committed him undoubtedly to drastic remedies, which would have amounted to the 243virtual abolition of wardship altogether. Chapter 4 of that document removed from the lord’s custody both the land and the person of the heir, and gave them to the widow of the deceased tenant (or to one of the kinsmen, if such kinsman had, by ancient custom, rights prior to those of the widow).^[384] This was only one of the many insincere promises which the “lion of justice” never kept, and probably never meant to keep. Wardship continued to be exacted from lay fiefs throughout the reigns of Henry I. and Stephen. Article 4 of the Assize of Northampton (1176) merely confirmed the existing practice when it allowed wardship to the lord of the fee.^[385] The barons in 1215 made no attempt to alter this, or to revert to the drastic remedies of the Charter of Henry I., although the evils complained of had become worse under John’s misgovernment.

It must be remembered that “wardship” placed the property and person of the heir at the mercy of the Crown. Even if the popular belief as to the fate met by Prince Arthur at his uncle’s hands was unfounded, John was by no means the guardian to inspire confidence in the widowed mother of a young Crown tenant whose estates the king might covet for himself. Further, the king might confer the office, with the delicate issues involved, upon whomsoever he would. When such a trust was abused it was difficult to obtain redress. In 1133 a guardian, accused de puella quam dicitur violasse in custodia sua, paid a fine to the crown, if not as hush money, at least in order to obtain protection from being sued elsewhere than in the Curia Regis.^[386] It is easy to understand how thoroughly this feudal incident must have been detested in England and Normandy, all the more so if, as Hallam contends, it was not recognized as a feudal due in other parts of Europe.^[387]

244Guardians were of two kinds. The king might entrust the lands to the sheriff of the county where they lay (or to one of his bailiffs), such sheriff drawing the revenues on the Crown’s behalf, and accounting in due season at the exchequer. Alternatively, the king might make an out-and-out grant of the office, together with all profit to be derived from it, to a private individual, either some royal favourite or the bidder of the highest price. Commentators of a later date^[388] apply the word “committee” to the former type of guardian, reserving “grantee” for the latter. This distinction, which is mentioned by Glanvill,^[389] obtains recognition in this passage of the Charter. Neither was likely to have the interests of the minor at heart. Both would extort the maximum of revenue, the one for the king, the other for himself. They had always strong inducements to exhaust the soil, stock, and timber, uprooting and cutting down whatever would fetch a price, and replacing nothing. The heir found too often a wilderness of impoverished lands and empty barns.

The remedies proposed by Magna Carta were too timid and half-hearted; yet something was effected. It was unnecessary to repeat the recognized rule that the minor must receive, out of the revenues of the land, maintenance and education suited to his station; but the Crown was restrained by chapter 3 from exacting relief where wardship had already been enjoyed; chapter 37 forbade John to exact wardship in certain cases where it was not legally due; while here in chapter 4 an attempt was made to protect the estate from waste.

The promised reforms included a definition of “waste”; punishment of the wasteful guardian; and protection against repetition of the abuse. Each of these calls for comment. (1) The definition of waste. The Charter uses the words “vastum hominum vel rerum” (a phrase which occurs also in Bracton).^[390] It is easy to understand waste of goods; but what is "waste of men"? An answer 245may be found in the words of the so-called “unknown Charter of Liberties,”^[391] which binds guardians to hand over the land to the heir “sine venditione nemorum et sine redemptione hominum.” Clearly, to enfranchise villeins was one method of “wasting men.” The young heir, when he came to the enjoyment of his estates, must not find his praedial serfs emancipated.^[392] The words of the “unknown Charter” may be used to illustrate the text, even if it be a forgery, since a consensus of opinion holds it to be either contemporary or of slightly later date.^[393]

(2) The punishment of wasteful guardians. The Charter provides a distinct but appropriate form of punishment for each of the two types of guardian. John promises to take “amends,” doubtless of the nature of a fine, from the “committee” who had no personal interest in the property; while the “grantee” is to forfeit the guardianship, thus losing a valuable asset for which he had probably paid a high price, sufficient punishment, perhaps, without the exaction of damages.

Subsequent statutes did not, however, take so lenient a view. While the Statute of Westminster^[394] merely repeated the words of Magna Carta, the Statute of Gloucester^[395] enacted that the grantee who had committed waste should not only lose the custody, but should, in addition, pay to the heir any balance between the value of the wardship thus forfeited and the total damage. More severe penalties were found necessary. Statute 36 246Edward III. chapter 13 enacted that the king’s Escheators (officers who first became prominent towards the close of the reign of Henry III., and who acted in the normal case as guardians of Crown wards), when guilty of waste, should “yield to the heir treble damages.” If the boy was still a minor, his friends might bring a suit on his behalf; or after he was of full age he might bring it on his own account.^[396]

(3) Provision against a recurrence of the waste. It was only fair that reasonable precautions should be taken to prevent the heir who had already suffered hurt, from being similarly abused a second time. John, accordingly, promised to supersede the keeper guilty of waste by appointing as guardians two of the most trustworthy of the free-holders on the heir’s estate. These men, from their local and personal ties to the young heir, might be expected to deal tenderly with his property. The “unknown Charter,” already referred to, proposed a more drastic remedy. Whenever the Crown’s right to a wardship opened, the lands were to be entrusted to four knights of the fief without waiting until damage had been done. This suggestion, if carried out, would have protected the king’s wards, without injury to the legitimate pecuniary interests of the Crown.

CHAPTER FIVE.

Custos autem, quamdiu custodiam terre habuerit, sustentet domos, parcos, vivaria, stagna, molendina, et cetera ad terram illam pertinencia, de exitibus terre ejusdem; et reddat 247heredi, cum ad plenam etatem pervenerit, terram suam totam instauratam de carrucis et waynagiis, secundum quod tempus waynagii exiget et exitus terre racionabiliter poterunt sustinere.

These stipulations form the complement, on the positive side, of the purely negative provisions of chapter 4. It was not sufficient to prohibit acts of waste; the guardian must see that the estates were kept in good repair.

I. The Obligations of the Warden of a Lay-fief. It was the duty of every custodian to preserve the lands from neglect, together with all houses, “parks” (a term explained under chapter 47), fishponds, mills, and the other usual items of the equipment of a medieval manor. All outlays required for these purposes formed, in modern language, a first charge on the revenues of the estate, to be deducted 248before the balance was appropriated by the “grantee,” or paid to the exchequer by the “committee.” It was the guardian’s duty, moreover, to restore the whole to the heir in as good condition as the produce of the land might reasonably permit. Henry’s Charters directed that the guardian should redeliver the land stocked with ploughs “and with all other appointments in at least as good condition as he received it.”^[398]

Magna Carta did not attempt to abolish wardship, which continued in full force for many centuries, with only a few of its worst abuses somewhat curtailed. The whole subject was regulated in 1549 by the Statute 32 Henry VIII. c. 46, which instituted the Court of Wards and Liveries, the expensive and dilatory procedure of which caused increasing discontent, until an order of both Houses of Parliament, dated 24th February, 1646, abolished it along with “all wardships, liveries, primer seisins, and ouster les mains.”^[399] This ordinance was confirmed at the Restoration by the Statute 12 Charles II. c. 24.

II. Wardships over Vacant Sees. The church had its own grievances, although these took a different form. The Constitutions of Clarendon^[400] had stipulated that each great prelate should hold his Crown lands sicut baroniam; and this view ultimately prevailed. It followed that all appropriate feudal burdens affected church fiefs equally with lay fiefs. The lands which formed the temporalities of a see were, however, in a peculiar position, being the property, not of an individual, but of an undying corporation 249(to use the definite language of a later age). When one bishop or abbot died, a successor of suitable age and worth had at once to be appointed. A minority was thus impossible, and therefore, so it might be argued, wardships could never arise. Rufus objected to what he thought an unfair exemption from a recognized feudal incident. Flambard devised an ingenious substitute for ordinary wardships by keeping sees long vacant, and meantime taking the lands under the guardianship of the Crown. Such practices formed the original ground of quarrel between Anselm and Rufus. Henry I., while renouncing by his Charter all pretensions to exact reliefs, retained his right of wardship, promising merely that vacant sees should neither be sold nor farmed out. Stephen went further, renouncing expressly all wardships over church lands; but Henry II. ignored this concession, and reverted to the practice of his grandfather. In his reign the wardship of the rich properties of vacant sees formed a valuable asset of the exchequer. During a vacancy the Crown drew not only the rents and issues of the soil, but also the various feudal payments which the under-tenants would otherwise have paid to the bishop. The Pipe Roll of 14 Henry II.^[401] records sums of £30 and £20 paid into the exchequer by two tenants of the vacant see of Lincoln for six and four knight’s fees respectively.^[402]

The practice of Henry of Anjou was followed by his sons. John was careful specially to reserve wardships over vacant sees even in that very accommodating charter, dated 21st November, 1214, which surrendered the right of canonical election to the national church. Stephen Langton had either failed to force John to relinquish wardships or else considered such a concession unnecessary now that the king renounced his right to veto church appointments, since wardships over church lands would become unprofitable if elections were never unduly 250delayed. Whatever the reason, the charter of 1214 did nothing to guard against the abuse of wardships over church lands, and John’s Great Charter was equally silent.^[403] The omission was supplied in 1216, when it was directed that the provisions already made applicable to lay fiefs should extend also to vacant sees, with the added proviso that church wardships should never be sold. The charter of Henry III. thus reverted to the exact position defined by the charter of Henry I. The lands of vacant sees might be placed under a “committee,” but never given to a “grantee,” to use Coke’s terms.

These provisions were further supplemented by later acts. An Act of 14 Edward III. (stat. 4, cc. 4 and 5) gave to the dean and chapter of a vacant see a right to the pre-emption of the wardship at a fair price. If they failed to exercise this, the king’s right to appoint escheators or other keepers was confirmed, but under strict rules as to waste. This is a distinct confirmation of the king’s right to “commit” church lands, although the prohibitions against selling them or farming them out remained still in force.

CHAPTER SIX.

Heredes maritentur absque disparagacione, ita tamen quod, antequam contrahatur matrimonium, ostendatur propinquis de consanguinitate ipsius heredis.

The Crown’s right to regulate the marriages of wards had become an intolerable grievance. The origin of this 251feudal incident and its extension to male as well as female minors have been elsewhere explained.^[404] John made a regular traffic in the sale of wards—young maids of fourteen and aged widows alike. No excuse would be accepted. The Pipe Roll of John’s first year^[405] records how the chattels of a certain Alice Bertram were taken from her and sold because she refused “to come to marry herself” at the summons of the king. Only two expedients were open to those who objected to mate for life with the men to whom John sold them. They might take the veil, become dead in law, and forfeit their fiefs to escape the burdens inherent in them. Only the cloister could afford them shelter; nowhere in the outer world were they safe. The other way of escape was to outbid objectionable suitors. This was not always possible, for John was predisposed to favour the suit of his foreign gentlemen of fortune, thus befriending his creatures while adding to the slender number of personally loyal tenants-in-capite. John’s greed was insatiable, and brief entries in his Exchequer Rolls condense the story of many a tragedy. In the first year of his reign the widow of Ralph of Cornhill offered 200 marks, with three palfreys and two hawks, that she might not be espoused by Godfrey of Louvain, but remain free to marry whom she chose, and yet keep her lands. This was a case of desperate urgency, since Godfrey, for love of the lady or of her lands, had offered 400 marks for her, if she could show no reason to the contrary. It is satisfactory to learn that in this case the higher bribe was refused, and the lady escaped.^[406]

Sometimes John varied his practice by selling, not the woman herself, but the right to sell her. In 1203 Bartholomew de Muleton bought for 400 marks the wardship of the lands and heir of a certain Lambert, along with the widow, to be married to whom he would, yet so that she should not be disparaged.^[407]

252Great stress was naturally placed on exemption from "disparagement"—that is, from forced marriage with one who was not an equal. When William of Scotland, by the treaty of 7th February, 1212, conferred on John the right to marry Prince Alexander to whom he would, the qualification was expressly stated, “but always without disparagement.”^[408] Such a proviso was understood where not expressed, and formed apparently the only restriction admitted by the Crown upon this prerogative. It is not surprising, then, to find it specially confirmed in Magna Carta. The Articles of the Barons had, indeed, demanded a further protection—namely, that a royal ward should only be married with the consent of the next of kin. In our text this is softened down to the mere intimation of an intended marriage. The opportunity was thus afforded of protesting against an unsuitable match. Insufficient as the provision was, it was entirely omitted from the reissues of Henry’s reign. The sale of heiresses went on unchecked.

Magna Carta made no attempt to define disparagement, but the Statute of Merton^[409] gave two examples,—marriage to a villein or to a burgess. This was not an exhaustive list. Littleton, commenting on this statute,^[410] adds other illustrations:—“as if the heir that is in ward be married to one who hath but one foot, or but one hand, or who is deformed, decrepit, or having an horrible disease, or else great and continual infirmity, and, if he be an heir male, married to a woman past the age of child-bearing.” Plenty of room was left for forcing on a ward an objectionable husband or wife, who yet could not be proved to come within the law’s definition of “disparagement.” The barons argued in 1258 that an English heiress was disparaged if married to anyone not an Englishman by birth.^[411]

253Was it in the power of the far-seeing father of a prospective heiress by marrying her during his own life-time to render nugatory the Crown’s right to nominate a husband? Not entirely; for the Charter of Henry I. (even when renouncing the more oppressive practice of Rufus) reserved the king’s right to be consulted by the barons before they bestowed the hand of female relations in marriage. Magna Carta is silent on the point, and the presumption is that the existing law was to be maintained.

Bracton^[412] explains that law:—No woman with an inheritance could marry without the chief lord’s consent, under pain of losing such inheritance; yet the lord when asked was bound to grant consent, if he failed to show good reasons to the contrary; he could not, however, be compelled to accept homage from an enemy or other unsuitable tenant. The Crown’s rights in such matters were apparently the same as those of any mesne lord.^[413]

CHAPTER SEVEN.

Vidua post mortem mariti sui statim et sine difficultate habeat maritagium et hereditatem suam, nec aliquid det pro 254dote sua, vel pro maritagio suo, vel hereditate sua quam hereditatem maritus suus et ipsa tenuerint die obitus ipsius mariti, et maneat in domo mariti sui per quadraginta dies post mortem ipsius, infra quos assignetur ei dos sua.

No amount of forethought on the part of a Crown tenant, setting his house in order against his decease, could rescue his widow from the extremely unfortunate position into which his death would necessarily plunge her. He must leave her without adequate protection against the tyranny of the king, who might inflict terrible hardships by a harsh use of rights vested in him for the safeguard of the feudal incidents due to the Crown as overlord. Newly deprived of her natural protector, she was under the immediate necessity of conducting a series of delicate negotiations with a powerful opponent fortified by prerogatives wide and vague. She might indeed, if deprived of her “estovers,” find herself for the moment in actual destitution, until she had made her bargain with the Crown; she had a right, indeed (under normal circumstances) to one-third of the lands of her late husband (her dos rationalis) in addition to any lands she might have brought as a marriage portion, but she could only enter into possession by permission of the king, who had prior claims to hers, and could seize everything by his prerogative of primer seisin.^[414] This chapter provides a remedy. Widows shall have their rights without delay, without difficulty, and without payment.

255I. The Widow’s Share of Real Estate. Three words are used:—dos, maritagium, and hereditas.

(1) Dower. A wife’s dower is the portion of her husband’s lands set aside to support her in her widowhood. It was customary from an early date for a bridegroom to make adequate provision for his bride on the day he married her. Such a ceremony, indeed, formed a picturesque feature of the marriage rejoicings, taking place literally at the door of the church, as man and wife returned from the altar. The share of her husband’s land thus set apart for the young wife was known as her dos (or dowry), and would support her if her husband died. In theory the transaction between the spouses partook of the nature of a contract by which they arranged the extent of the provision to be given and accepted. The wife’s rôle, however, was a passive one; her concurrence was assumed. Yet, if no provision was made at all, the law stepped in, on the presumption that the omission had been unintentional on the husband’s part, and fixed the dower at one-third of all his lands.^[415]

John’s Magna Carta contents itself with the brief enactment “that a widow shall have her dower.” The Charter of 1217 goes farther, containing an exact statement of the law as it then stood:—"The widow shall have assigned to her for her dower the third part of all her husband’s land which he had in his lifetime (in vita sua) unless a smaller share had been given her at the door of the church." Lawyers of a later age have by a strained construction of the words in vita sua, made them an absolute protection to a wife against all attempts of her husband to defeat or lessen her dower by alienations granted without her consent during the subsistence of the marriage.^[416] Magna Carta contains no warrant for such a proposition, although a 256later clause (chapter 11) secures the dower lands from attachment by the husband’s creditors, whether Jews or others.

(2) Maritagium. It was customary for a land-owner to bestow some share of his property as a marriage portion upon his daughters, that they might not come to their husbands as empty-handed brides. The land so granted was usually relieved from all burdens of service and homage. It was hence known as liberum maritagium, which almost came to be recognized as a separate form of feudal tenure. Grants for this purpose could be made without the consent of the tenant’s expectant heirs, although early English law absolutely prohibited alienation of lands for any other purpose without their consent. Maritagium was thus “a provision for a daughter—or perhaps some other near kinswoman—and her issue.”^[417] The husband of the lady was, during the marriage, treated as virtual owner for all practical purposes; but on his death the widow had an indisputable title to lands brought with her “in free marriage.”^[418]

The obvious meaning, however, has not always been appreciated. Coke^[419] reads the clause as allowing to widows of under-tenants a right denied (by chapter 8) to widows of Crown tenants—namely “freedom to marry where they will without any licence or assent of their lords.” This interpretation is inherently improbable, since the barons at Runnymede desired to place restrictions on their enemy, the king, not upon themselves; and it is opposed to the law of an earlier reign, as expounded by Bracton.^[420]

Daines Barrington^[421] invents an imaginary rule of law in 257order to explain a supposed exception. An ordinary widow, he declares, could not in the normal case marry again before the expiry of a year after her first husband’s death. Some widows, however, were specially privileged. Maritagium was a right conferred on widows of land-owners to cut short the period of mourning imposed on others. This is a complete inversion of the truth; the possession of land always restricted, instead of extending, freedom of marriage. Several later authorities follow Barrington’s mistake.^[422]

Such mistakes when made by recent writers are the more inexcusable in view of the clear explanation given a century ago by John Reeves,^[423] who distinguished between two kinds of marriage portion: liberum maritagium, whence no service whatever was exigible for three generations, and maritagium servitio obnoxium, liable to the usual services from the first, although exempt from homage until after the death of the third heir.^[424]

(3) Hereditas. The first two words are thus readily understood: but what is hereditas? Is it simply another name for one of these, or is it something different? It is possibly used to denote estates acquired by the wife, not as a marriage portion, but in any other way, for example by the opening of a succession on the death of someone, her father or other relative, of whom she is the heir.

II. The Widow’s Share of Personal Estate. The chapter of the Charter at present under discussion says nothing as to the widow’s right to any portion of her deceased husband’s goods and chattels. Chapter 26, however, confirms the existing law which secured to her, in the normal case, one third of her husband’s personal estate, as will be more fully explained hereafter.

258III. Provision for the Widow’s immediate Needs. Many intricate questions might arise before it was possible to divide the land into aliquot portions and so “assign” the exact one-third due to her. Meanwhile, temporary provision must be made for her support. This was of two kinds: (1) Quarantine. Magna Carta confirmed her right to remain in the family home for a space of forty days. This was known to later lawyers as the widow’s quarantine.^[425] The Charter of 1216 notes an exception to the general rule, on which John’s Charter is silent: if the deceased husband’s chief place of residence had been a castle, the widow could not stay there; feudal strongholds were not for women. In such cases, however, so the reissue of 1216 carefully provided, another residence must be immediately substituted. In later days, widows unlawfully deprived of their quarantine were provided with a remedy by means of a writ, known as “de quarentina habenda,” directing the sheriff to take summary procedure to do her right.^[426]

(2) Estovers of Common. The widow required something more than the protection of a roof; for, until her dower lands had been delivered to her, no portion of the produce of her late husband’s manors could be strictly called her own. The estate was held “in common” between her and her husband’s heir (or between her and the “guardian” of that heir’s estates). It was only fair that, until her rights were ascertained, she should be allowed a reasonable share of the produce. Neither John’s Charter nor the first issue of Henry III. said anything on this head. The reissue of 1217 supplied the omission, expressly confirming the widow of a Crown tenant in the right to rationabile estoverium suum interim de communi. Many explanations of the word estovers (generally used in the plural) might be cited: from Dr. Johnson, who defines it broadly as “necessaries allowed by law,” to 259Dr. Stubbs, who narrows it to “firewood.”^[427] It was the right to use certain parts of the natural produce of land or other property for the supply of one’s personal or domestic wants. Such rights varied in extent, however; from the general right to a full supply of all things necessary for the maintenance of life, down to the restricted right to take one kind of produce for one specific purpose only.^[428]

It seems natural to infer that in this passage of Magna Carta the word bears its wider signification. Such was Coke’s view,^[429] who held that it implied the widow’s right to “sustenance” of every kind, including the right to kill such oxen on the manor as she required for food. Estovers “of common” should thus be read as extending the widow’s right of consumption for her own and her household’s use over every form of produce held “in common” by her and the heir’s guardian prior to a final division.^[430]

Nulla vidua distringatur ad se maritandum dum voluerit vivere sine marito; ita tamen quod securitatem faciat quod se non maritabit sine assensu nostro, si de nobis tenuerit, vel sine assensu domini sui de quo tenuerit, si de alio tenuerit.

Wealthy ladies, who were wise, were glad to escape with their children from John’s clutches by agreeing to buy up all the Crown’s oppressive rights for a lump sum. In the very year of Magna Carta, Margaret, the widow of Robert fitz Roger, paid £1000;^[431] and a few years earlier Petronilla, Countess of Leicester, expended as much as 4000 marks.^[432] Though the circumstances of each of these cases seem to have been peculiar, the Pipe Rolls contain numerous smaller sums; in 1206 Juliana, widow of John of Kilpec, accounts for 50 marks and a palfrey.^[433] Horses, dogs, and falcons were frequently given in addition to money fines, and testify eloquently to the greed of the king, the anxiety of the victims, and the extortionate nature of the whole system. In return, formal charters were usually obtained, a good example of which is one granted to Alice, countess of Warwick, dated 13th January, 1205,^[434] containing many concessions; among others that she should not be forced to marry; that she should be sole guardian of her sons; that she should have one-third part of her late husband’s lands as her reasonable dower; and that she should 261be quit from attendance at the courts of the shire and of the hundred, and from payment of sheriff’s aids during her widowhood. Another charter of 20th April, 1206, shows what a widow had to expect if she failed to make her bargain with the Crown. John granted to Richard Fleming, an alien as his name implies, and presumably one of his not too reputable mercenaries, the wardship of the lands of the deceased Richard Grenvill with the rights of marriage of the widow and children.^[435]

Magna Carta sought to substitute a general rule of law for the provisions of these private charters purchased by individuals at ruinous expenditure. It contained no startling innovations, but only repeated at greater length the promises made (and never kept) by Henry I. in the relative part of clause 4 of his coronation charter. No widow was to be constrained to marry again against her will. This liberty must not be used, however, to the prejudice of the Crown’s lawful rights. Although the widow need not marry as a second husband the man chosen by the king without her consent, neither could she marry without the king’s consent the man of her own choice. Magna Carta specially provided that she must find security to this effect, an annoying, but not unfair, stipulation. The Crown, in later days, compelled the widow, when having her dower assigned to her in Chancery, to swear not to marry without licence; and if she broke her oath, she had to pay a fine, which was finally fixed at one year’s value of her dower.^[436]

CHAPTER NINE.

Nec nos nec ballivi nostri seisiemus terram aliquam nec redditum pro debito aliquo, quamdiu catalla debitoris sufficiunt ad debitum reddendum; nec plegii ipsius debitoris distringantur quamdiu ipse capitalis debitor sufficit ad 262solucionem debiti; et si capitalis debitor defecerit in solucione debiti, non habens unde solvat, plegii respondeant de debito; et, si voluerint, habeant terras et redditus debitoris, donec sit eis satisfactum de debito quod ante pro eo solverint, nisi capitalis debitor monstraverit se esse quietum inde versus eosdem plegios.

The Charter now passes to another group of grievances. Chapters 9 to 11 treat of the kindred topics of debts, usury, and the Jews, and should be read in connection with each other, and with chapter 26, which regulates the procedure for attaching the personal estate of deceased Crown tenants who were also Crown debtors. The present chapter, although quite general in its terms, had special reference to cases where the Crown was the creditor; while the two following chapters treated more particularly of debts contracted to Jews or other money lenders.

The fact that John’s subjects owed debts to his exchequer did not, of course, imply that they had borrowed money from the king. The sums entered as due in the Rolls of the Exchequer represented obligations which had been incurred in many different ways. What with feudal incidents and scutages, and indiscriminate fines, so heavy in amount that they could only be paid by instalments, a large proportion of Englishmen must have been permanently indebted to the Crown. At John’s accession most of the northern barons still owed the scutages demanded 263by Richard. John remitted none of the arrears, while imposing new burdens of his own: the attempts made to collect these debts intensified the friction between John and his barons.^[437] It was, further, the Crown’s practice wherever possible, to make its debtors find sureties for their debts, thus widening the circle of those liable to distraint, while the officers who enforced payment were guilty of irregularities, which became the cloaks of grave abuses.

Three equitable rules were laid down. (1) The personal estate of a debtor must be exhausted before his real estate or its revenues were attacked. To take away his land might deprive him ultimately of his means of livelihood, since the chattels left to him could not yield a permanent revenue.^[438] The rule here laid down by Magna Carta has not found a place in modern systems of law, which usually leave the option with the creditor. (2) The estate (both real and personal) of the chief debtor had to be exhausted before proceedings could be instituted against his sureties. Magna Carta thus enunciated in English law a rule which has found favour in most systems of jurisprudence. The man who is only a surety for another’s debt is entitled to immunity until the creditor has taken all reasonable steps against the principal debtor. Such a right is known to the civil law as beneficium ordinis, and to modern Scots law as the “benefit of discussion.” (3) If these sureties had, after all, to pay the debt in whole or in part, they were allowed “a right of relief” against the principal debtor, being put in possession of his lands and rents. This rule has some analogy with the equitable principle of modern law, which gives to the surety who has paid his principal’s 264debt, the right to whatever property the creditor held in security of that debt.

Even when the Crown’s bailiffs obeyed Magna Carta by leaving land alone when chattels were available, they might still wantonly inflict terrible hardship upon debtors. Sometimes they seized goods valuable out of all proportion to the debt; and an Act of 1266^[439] forbade this practice when the disproportion was “outrageous.” Sometimes they attempted to extort prompt payment or to ruin their victim by selecting whatever chattel was most indispensable to him. Oxen were taken from the plough and allowed to die of starvation and neglect. The practice of the exchequer, in the days of Henry II., had been more considerate; oxen were to be spared as far as possible where other personal effects were available.^[440] John’s charter has no such humane provision,^[441] and the abuse continued. The Act of 1266, already cited, forbade officers to chase away the owner who came to feed his impounded cattle at his own expense. The Articuli super cartas^[442] went further; prohibiting the seizure of beasts of the plough altogether so long as other effects might be attached of sufficient value to satisfy the debt.^[443]

Si quis mutuo ceperit aliquid a Judeis, plus vel minus, et moriatur antequam illud solvatur, debitum non usuret quamdiu heres fuerit infra etatem, de quocumque teneat; et si debitum illud inciderit in manus nostras, nos non capiemus nisi catallum contentum in carta.

The taking of usury, denied by law to Christians, was carried on by Jews under great disadvantages and risks; and the rates of interest were proportionately high, ranging in normal cases from two to four pence per pound per week; that is, from 43⅓ to 86⅔ per cent. per annum.^[446] During his nonage a ward had nothing wherewith to discharge either principal or interest, since he who had the wardship drew the revenue. At the end of a long minority an heir would have found the richest estates swallowed up by a debt which had increased automatically ten or twenty-fold.^[447]

266Magna Carta prevented this great injustice to the ward; but, in doing so, inflicted, according to modern standards, some injustice on the money-lenders. During the minority no interest at all, it was provided, should accrue to Jew or other usurer; while, if the debt passed to the Crown, the king must not use his prerogative to extort more than a private debtor might; he must confine himself to the principal sum specified in the document of debt. The provision that no interest should run during minorities was confirmed by the Statute of Merton,^[448] which made it clear, however, that its provisions should not operate as a discharge of the principal sum or of the interest which had accrued before the ancestor’s death. The Statute of Jewry, of uncertain date,^[449] made interest irrecoverable by legal process. All previous acts against usury were repealed by the statute 37 Henry VIII. c. 9, which, however, forbade the exaction of interest at a higher rate than 10 per cent., and this remained the legal rate until reduced to 8 per cent, by 21 James I. c. 17. Money-lending and the usury laws are subjects closely bound up with the repressive measures against the Jews.

I. The History of the Jews in England. The policy of the Crown towards those aliens of the Hebrew race who sought its protection varied at different times, and three periods may be distinguished. From the Norman Conquest to the coronation of Richard I. the Jews were fleeced and tolerated; during the reigns of Richard and John and the minority of Henry III. they were fleeced and protected; and finally they were fleeced and persecuted, this last stage extending from the formation of the alliance between Henry and Innocent IV. down to the ordinance of 1290, which banished in perpetuity all Jews from England. The details of this long story of hardship and 267oppression, tempered fitfully by royal clemency, which had always to be well paid for, can here be glanced at only in the barest outline. There were Jews in England before the Norman Conquest; but the first great influx came in the reign of Rufus, whose financial genius recognized in them an instrument for his gain, and who would the more gladly protect them, as likely to prove a thorn in the side of his enemy the Church. A second influx resulted from the persecution of Israelites on the Continent of Europe, consequent on the failure of the first Crusade. This new alien immigration seems to have excited mistrust in England, and led to the disarming of all Jews in 1181, a measure which left them at the mercy of the Christian rabble.

Accordingly, when a disturbance occurred at the coronation of Richard I., on 3rd September, 1189, owing to the imprudence of some officious Jews, a general massacre took place in London, while York and other towns were not slow to follow the example. The king was moved to anger, not so much by the sufferings of the Jews, as by the destruction of their bonds, since that indirectly injured the Crown; for the more the Jews had, the more could be extorted from them, and when the written bond had been burned, no evidence of the debt remained. Richard, returning from his captivity a few years later, in urgent need of money, determined to prevent a repetition of such interference with a valuable source of revenue. His motive was selfish, but that was no reason why the Israelites should not pay for a measure designed for their own protection. Assembled at Nottingham they granted a liberal aid, in return for a new expedient devised to secure their bonds. This scheme, for the details of which Richard was probably indebted to the genius of his great justiciar, archbishop Hubert Walter, was of a comprehensive and practical character. In London, York, and other important cities, offices or bureaus were established under the Crown’s protection, containing treasure chests, called archae, fitted with triple locks, to be opened only at stated intervals in 268the presence of special custodians, known as chirographers, who kept the keys. These custodians were usually four in number, two Christians and two Jews, chosen by juries specially summoned for that purpose by the sheriff of the county, and they were obliged to find sureties that they would faithfully perform their important functions. Only in their presence could loans be validly contracted between Jews and Christians; and it was their duty to see the terms of all such bargains reduced to writing in a regular prescribed form in duplicate copies. No contract was binding unless a written copy or chirograph had been preserved in one or other of those repositories or arks, which thus served every purpose of a modern register, and other purposes as well. If the money-lender suffered violence and was robbed of his copy of the bond, the debtor was still held to his obligations by the duplicate which remained. If the Jew and all his relatives were slain, even then the debtor did not escape, but was confronted by a new and more powerful creditor, the king himself, armed with the chirograph. Lists of all transactions were preserved, and all acquittances and assignments of debts, known from their Hebrew name as “starrs,” had also to be carefully enrolled.^[450] Minute and stringent rules, codified by Hubert Walter in the terms of a written commission, were issued to the judges when starting on their circuit in September, 1194.^[451]

If this cunningly-devised system prevented the Christian debtor from evading his obligations, it also placed the Jewish creditor completely at the mercy of the Crown; for the exact wealth of every Jew could be accurately ascertained from a scrutiny of the contents of the archae. The king’s officials were enabled to judge to a penny how much it was possible to wring from the coffers of the Jews, whose bonds, moreover, could be conveniently attached until they paid the tallage demanded. The custom of fixing on 269royal castles as the places for keeping these arks, probably explains the origin of the special jurisdiction exercised over the Jews by the king’s constables (“qui turres nostras custodierunt”).^[452] In the dungeons of their strongholds horrible engines were at hand for enforcing obedience to their awards. Such jurisdiction, however, extended legitimately over trivial debts only.^[453] All important pleas were reserved for the officials of the exchequer of the Jews, a special government department, which controlled and regulated the whole procedure. Evidences of the existence of this separate exchequer have been traced back to 1198, although no record has been found of a date prior to 1218.^[454] John, while despising the Jews, was not slow to realize that in them the Crown possessed an asset of great value. It was his policy to protect their wealth as a reservoir from which he might draw in time of need, contenting himself meanwhile with comparatively moderate sums. Thus, by a charter dated 10th April, 1201, he took 4000 marks in return for confirming their privileges; and he obtained a second payment of a similar amount after his rupture with Rome. The charter of 1201 was only a confirmation of rights already enjoyed by all English Jews in virtue of the liberal interpretation put upon the terms of an earlier charter which had been granted by Henry I. to a particular father in Israel with his household, but subsequently extended, with the tacit concurrence of the Crown, to the whole Hebrew race. Under John’s charter they enjoyed valuable and definite privileges, which, while leaving them completely in the royal power, exempted them from all jurisdictions except those of the king and his castellans; while, if a Christian brought a complaint against a Jew, it was to be judged by the peers of that Jew.^[455]

270When a repetition of the massacre which had disgraced his brother’s coronation threatened to take place in 1203, John promptly ordered the mayor and barons of London to suppress all such attempts. In terms contemptuous alike to the Londoners and to the Jews his writ declared that his promise of protection, “even though granted to a dog,” must be held inviolate.^[456] Protection was accorded to them, however, only that they might furnish a richer booty to the Crown, when the proper occasion arrived. Suddenly John issued orders for a wholesale arrest of the Jews throughout England. The most wealthy members of their community were brought together at Bristol, and, on 1st November, 1210, were compelled to give a reluctant consent to a general tallage at the enormous sum of 66,000 marks. Apparently this amount had been fixed as the result of an exaggerated estimate of the contents of the archae, and was more than they could afford to pay. The methods adopted by John’s castellans to extort the arrears of the amount are well-known, especially in the case of the unfortunate Jew of Bristol, from whom seven teeth were extracted, one each day, until he consented to pay the sum demanded.^[457]

It was doubly hard that the race thus plundered and tortured by the king should be subjected to harsh treatment by the king’s enemies on the ground that they were pampered protégés of the Crown. Yet such was the case: on Sunday, 17th May, 1215, when the insurgents on their way to Runnymede entered London, they robbed and murdered the Jews, using the stones of their houses to fortify the city walls.^[458] It is not to be wondered then that the same insurgents in forcing on King John the demands which formed the basis of Magna Carta, included provisions against usury.

The advisers of the young Henry in 1216 omitted these clauses, but not from love of the Jews. They were unwilling 271to impair so useful a financial resource, which has been compared to a sponge which slowly absorbed the wealth of the nation to be quickly squeezed dry again by the king. The Jews were always willing to disgorge a portion of their gains in return for protection in the rest, even of a contemptuous and intermittent kind; but their lot became hard indeed when Henry III., urged by popular clamour and the wishes of the Pope, began a course of active persecution, without relaxing the rigour of those royal exactions which had previously been the price of protection. In 1253, a severe ordinance inflicted a long list of vexatious regulations on the Hebrews, almost converting their quarters in each great city into ghettos, like those of the Continent of Europe. This was merely the commencement of a series of oppressive measures, the natural outcome of the growing hatred with which Christians regarded Jews,—a result partly of the heated imagination of the rabble, ready to believe unauthenticated stories of the crucifixion of Christian children, and partly of the fact that rich Jews, in spite of all persecution, had possessed themselves of the landed estates of freeholders and nobles and claimed to act as lords of Christian tenants, enjoying wardships, escheats, and advowsons, as any Christian baron might have done. The scope of this enquiry excludes any detailed account of the stages through which repressive legislation passed, until the lot of the Jews in England became intolerable. The Statute of Jewry, however,^[459] was of exceptional importance; taking from usurers the right to recover interest by legal process, and limiting execution for the principal to one half of the debtor’s lands and chattels. In return some temporary concessions were granted. One by one, all these privileges were withdrawn, until the end came in 1290 with the issue of a decree of perpetual banishment by Edward I., who was compelled to sacrifice the cherished right of keeping a royal preserve of Jews in deference to the culmination of national prejudice in a storm of unreasoning hate.

272II. Legal Position of the Jews. All through these vicissitudes of fortune the legal status of the Jews had remained unchanged in all essentials. Their position was doubly hard; they were plundered by the Crown and persecuted by the populace. If John saved them from being robbed by his Christian subjects, it was that they might be better worth the robbing by a Christian king. Yet, for this protection, at once fitful and interested, the Jews had to pay a heavy price; not only were they liable to be tallaged arbitrarily at the king’s will, without limit and without appeal, but they were hated by rich and poor as the king’s allies. Such feelings would of themselves account for the unsympathetic treatment accorded to money-lenders by Magna Carta; two other reasons contributed. All usury was looked on in the Middle Ages as immoral (although illegal only for Christians), while excessive interest was habitually exacted.

The feudal scheme of society had no place for Jews and afforded them no protection. Not only did they share the disabilities common to all aliens, but these were not in their case mitigated by the protection extended to other foreigners by their own sovereigns and by the Church. As exiles in a foreign land, exposed to the attacks of a hostile mob, they were forced to rely absolutely on the only power strong enough to protect them, the arm of the king. The Jews became the mere serfs, the perquisites or chattels of the Crown, in much the same way as the villeins became the serfs or chattels of their lords. Rights they might have against others by royal sufferance, but they had no legal remedy against their master. In the words of Bracton,^[460] “the Jew could have nothing of his own, for whatever he acquired, he acquired not for himself but for the king.” His property was his merely by royal courtesy, not under protection of the law. When he died, his relations had no legal title to succeed to his mortgages, goods, or money; the exchequer, fortified by an intimate knowledge of the extent of his wealth (for that 273consisted chiefly in registered bonds), stepped into possession and could do what it pleased. The king usually, indeed, in practice contented himself with one-third of the whole; but if the relations of the deceased Jew received less than the balance of two-thirds, they would be well advised to offer no remonstrance. The Crown did not admit a legal obligation; and there was no one either powerful enough, or interested enough, to compel the fulfilment of the tacit understanding which restricted the royal claims. Whatever the Jew had amassed belonged legally and potentially not to him but to the Crown. Magna Carta, in striking at money-lenders, was striking at the king.

CHAPTER ELEVEN.

Et si quis moriatur, et debitum debeat Judeis, uxor ejus habeat dotem suam, et nichil reddat de debito illo; et si liberi ipsius defuncti qui fuerint infra etatem remanserint, provideantur eis necessaria secundum tenementum quod fuerit defuncti, et de residuo solvatur debitum, salvo servicio dominorum; simili modo fiat de debitis que debentur aliis quam Judeis.

If the preceding chapter deprived Jews of part of the interest they claimed, the present one deprived them also in certain circumstances of part of the security on which they had lent the principal. The widow’s dower lands were 274discharged from her husband’s debts, only two-thirds of the original security thus remaining under the mortgage. Even this must submit to a prior claim, namely the right of the debtor’s minor children to such “necessaries” as befitted their station in life. Magna Carta, at the same time, with characteristic care for feudal rights, provided that the full service due to lords of fiefs must not be prejudiced, whoever suffered loss. Finally, these rudiments of a law of bankruptcy were made applicable to Gentile creditors equally as to Jews. These provisions, with others injuriously affecting the royal revenue, were omitted in 1216, not to be restored in future charters: but they were re-enacted in their essential principle, though not in detail, by the Statute of Jewry, which limited a creditor’s rights of execution to one moiety of his debtor’s lands and chattels.

CHAPTER TWELVE.

Nullum scutagium vel auxilium ponatur in regno nostro, nisi per commune consilium regni nostri, nisi ad corpus nostrum redimendum, et primogenitum filium nostrum militem faciendum, et ad filiam nostram primogenitam semel maritandam, et ad hec non fiat nisi racionabile auxilium: simili modo fiat de auxiliis de civitate Londonie.

This is a famous clause, greatly valued at the time it was framed because of its precise terms and narrow scope (which 275made evasion difficult), and even more highly valued in after days for exactly opposite reasons. It came indeed to be interpreted in a broad general sense by enthusiasts who, with the fully-developed British constitution before them, read the clause as enunciating the modern doctrine that the Crown can impose no financial burden whatsoever on the people without consent of Parliament. Before discussing how far such an estimate is justified, it will be necessary to examine the historical context, with special reference to two classes of John’s subjects; his feudal tenants, and the citizens of London respectively.

I. Protection of Crown Tenants from arbitrary Exactions. The pecuniary obligations of the barons may be arranged in two groups according as they depended on the king’s own actions, or were determined by circumstances which lay beyond the royal control. Payments of the former type (such as reliefs and amercements), exigible only at fixed dates or on the occurrence of specific events, were treated of elsewhere in Magna Carta. The present chapter sought to prevent John from extorting additional payments either absolutely at his own discretion, or because of situations which he had purposely created as excuses for demanding money. The entire field of such arbitrary feudal dues was covered by the words “scutages” and “extraordinary aids,”^[461] the use of which protected the barons from every sort of compulsory payment which might be demanded by the king at his own discretion.

(1) Scutage. The development of the system described by this name has been traced in the Historical Introduction.^[462] Used at first as an expedient for substituting, in the Crown’s option, money payments for military service, it became, under John, a regular source of revenue, imposed almost every year on one pretext or another, while 276it was levied at an increased rate, and under conditions of a vexatious and burdensome nature. If any one cause contributed, more than the others, to the rebellion which culminated at Runnymede, it was John’s method of imposing scutages. This chapter, then, attempted to strike at the common root from which many grievances grew. The Crown was no longer to be left sole judge of the occasions on which a scutage might be demanded. “The common consent (or counsel) of the realm” must first be obtained. If this provision had been carried into practice, it would have removed the supreme control of the system of scutages from the Crown which received the money, to the Crown tenants who paid it. This truly radical remedy included the remedy of all minor abuses as well, since the collective body of barons who could refuse payment unconditionally, might a fortiori make grants under such conditions as they chose. Henceforward it would lie with them to say, on each occasion, whether the old normal 20s. per knight’s fee should be superseded by some other rate, either higher or lower. This provision was never enforced, being omitted altogether from the reissue of 1216, while the clause substituted for it in the Charter of 1217 took an entirely different form.^[463]

(2) Feudal aids. It was recognized from an early date that in emergencies feudal vassals ought to contribute to their lord’s support in proportion to the extent of their holdings. Such payments were known as aids, and were originally supposed to be free-will offerings.^[464] By John’s reign they had fallen into two groups—ordinary and extraordinary. The former, three in number, were only dealt with incidentally by the Charter.^[465] It is with the “extraordinary” aids that this chapter specially occupies itself. These are placed in the same position as scutages: 277the Crown cannot exact either, “unless by common counsel of the realm.”

II. Protection of Citizens of London from arbitrary Exactions. Some attempt was made to protect the men of London, as well as the Crown tenants, from John’s demands for money. The insurgent leaders in this way discharged part of their debt to an ally with special claims upon their gratitude.^[466] The Articles of the Barons had contained several important provisions affecting the capital; and these were embodied in the Charter in slightly altered terms, which suggest some influence at work not altogether friendly to the citizens.^[467] The present clause of the completed charter, for example, uses only one word, “aids,” where the 32nd of the Articles of the Barons had referred to “tallages and aids.” There is no evidence to show whether the omission had been deliberately planned, or was merely the result of inadvertence; and the ambiguity inherent in both words makes it dangerous to hazard a dogmatic opinion on the practical effect of the alteration. Yet a clearly-marked line can be traced between the respective meanings of the two terms when they are technically used.

(1) “Aid” is the vaguer word, applicable to every payment which can be regarded as in any sense a free-will offering. It embraced gifts to the Crown, whether from prelate or burgess or feudal baron. London was stimulated towards acts of generosity by kings of England both before and after John. There were times 278when “voluntary” aids, like the “benevolences” of Tudor days, could not safely be withheld.

(2) “Tallage” was a tax levied at a feudal lord’s arbitrary will upon more or less servile dependants, who had neither power nor right to refuse. The frequency of these exactions and the sums taken depended solely on the lord’s caprice, restrained by no law, but only by such limits as an enlightened self-interest or regard for public opinion might dictate. Liability to arbitrary tallage was thus one of the chief marks of an unfree status, and was contrasted with the impositions levied on those freeholders who held by knight’s service, by socage, or by frankalmoin. The owner of the smallest manor, like the owner of the greatest barony, might tallage his own villeins; and the king had a similar privilege over a wider field. His rights extended even over civic communities who held royal charters, since towns were theoretically on the royal demesne, and therefore liable to tallage. The great city of London, in spite of its growing wealth, its political importance, and its list of chartered privileges, still shared this liability.^[468]

(3) Comparison of tallage and aid. The tallage, as a forced payment, thus differed fundamentally from the nominally free “aid,” while two minor points of difference may also be noted. In arranging an aid the givers usually suggested the amount, though the king might reject the offer as insufficient; while the amount of a tallage, on the other hand, was arbitrarily fixed by the Crown. Further, while the aid granted by a community was a joint offering which the citizens assessed and collected by their own officers, and for which they admitted a collective responsibility, the Crown itself allocated on whom it pleased the particular sums of tallage to be paid by each individual, no joint liability being admitted by those who had to pay. It was obviously 279to the advantage of a borough to forestall, by the present of a liberal aid, the Crown’s anticipated demand for a tallage, for the hated tax-gatherer was thus kept outside the city gates. An aid was also more to the king’s advantage than a tallage of equal amount. Not only was he saved the trouble, expense, and delay of the collection, but he obviated risk of loss through the insolvency of some of the individuals fixed upon.

A story told by Madox^[469] brings out the contrast. A dispute had arisen between the king and the Londoners. To Henry’s demand for 3000 marks of “tallage” they at first replied by offering 2000 marks of “aid,” which the king refused. The citizens then denied liability to tallage altogether, but were confronted with entries in Exchequer and Chancery Rolls which entirely contradicted their audacious contention. On the morrow the mayor and citizens acknowledged that they were talliable, and gave the king the sum he demanded.

(4) Effects of the omission of the word “tallage” from Magna Carta. As the two words appearing in the Articles of the Barons had well-recognized differences of meaning, it is unlikely that the omission of one of them from the Charter was regarded as a purely verbal change. John would readily enough dispense with the right to exact “aids” from the wealthy traders of his capital, if he still preserved his privilege of tallaging them at pleasure. The omission was perhaps deliberately made in deference to John’s strong feeling on a point which did not personally affect the barons.^[470] Another omission should be noted. The Articles had extended protection not only to Londoners, but also “to citizens of other places who thence have their liberties,” meaning the towns whose chartered privileges had been modelled on those of the metropolis. Magna 280Carta completely ignored, in this connection, all towns except London.^[471]

(5) The nature of the protection afforded by Magna Carta. The arrangement of the present chapter is peculiar. After treating fully of the abuses of Crown tenants, the case of the Londoners is thrown in carelessly in a few words: “In like manner it shall be done concerning aids from the citizens of London.” Various interpretations of the words “simili modo” are possible. High authorities suggest that the clause means no more than that aids taken from London, like ordinary aids taken from Crown tenants, must be “reasonable.”^[472] If this is so, a criterion of reasonableness different from that applicable to knights’ fees became necessary; and this would have been hard to find.^[473]

It is equally probable, however, that the intention was to render the same consent necessary to the validity of aids, asked from London, as had previously been stipulated in the case of scutages from tenants in chief. If this is so, then the method provided in chapter 14 for taking “the common counsel of the realm” was peculiarly ill-adapted to secure to the men of London any effective voice in taxing themselves. The necessity for the consent of an exclusively baronial assembly could not adequately protect the Londoners, whose essentially different interests were unrepresented.

Subsequent history casts no light on the original intention of this clause; no occasion of testing its meaning ever occurred, the entire chapter of which it forms part 281having been omitted from all subsequent issues of the Charter.

(6) Later history of the Crown’s right to tallage the towns. Magna Carta, even in its original form, did not deprive the king of his right to tallage London, like any other part of his ancient demesne; and the Crown continued quite legally and almost without question to exercise this prerogative at intervals from 1215 until 1340. It has sometimes been maintained, indeed, that the Confirmatio Cartarum of 1297 was intended to abolish this prerogative, and it is true, that a document once considered as an authoritative version of the Confirmatio bore the suggestive title of De tallagio non concedendo. It is now well known that the latter document is quite unauthentic; while, if the confirmatio itself was intended to relieve the towns from tallages taken without their consent, it signally failed. Edward III. occasionally exacted tallages from London and other towns. His parliaments, however, sought to prohibit this, and succeeded, in 1340, in passing a statute which abolished, in words peculiarly wide and categorical, unparliamentary taxation of every kind whatsoever. This act, which is sometimes styled by modern writers “the real statutum de tallagio non concedendo,” is held by Dr. Stubbs to have conclusively abolished inter alia the Crown’s right of tallage.^[474] This finally settled the law, but did not prevent the king from trying to break that law. In subsequent years Edward III. frequently disregarded the restriction thus placed upon his financial resources, and with varying success. He rarely did so, however, without meeting protests; and the rule of law laid down in the act of 1340 was never repealed.

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 282absolute surrender of all powers of arbitrary taxation, and even that they enunciate a general doctrine of the nation’s right to tax itself.^[475] Yet the very idea of “taxation” in its abstract form, as opposed to specific tolls and tallages levied on definite things or individuals, is essentially modern. The doctrine of the day was that the king in normal times ought “to live of his own,” like any other land-owning gentleman. A regular scheme of “taxation” to meet the ordinary expenses of government was undreamt of. It is too much to suppose, then, that our ancestors in 1215 sought to abolish something which, strictly speaking, did not exist. The famous clause treats, not of “taxation” in the abstract, but of the scutages and aids already discussed. It does not concern itself with the rights of Englishmen as such, but chiefly with the interests of those who held freeholds of the Crown, and incidentally and inadequately with those of the citizens of London. Several considerations place this beyond reasonable doubt.

(1) The terms of the restriction are by no means wide or sweeping; but precise, accurate, and narrow. The “common consent of the realm” was made a requisite for three species of exactions at the most: for scutages and for extraordinary aids taken from the feudal tenants, and possibly also for aids taken from the city of London: that is all. Not a word is said of any other form of taxation or of other groups of taxpayers. The restriction thus benefits Crown tenants only, with the doubtful addition of the Londoners. (2) If under-tenants received by chapter 15 some protection against their mesne lords, they received none against the claims of the king. The Charter affected not national “taxation,” but merely feudal dues. (3) The scant measure of protection afforded did not extend even to all Crown tenants. The king’s villeins were, of course, excluded; and so were even freeholders whose tenure was 283other than that of chivalry. Socage tenants were left liable to carucage and other exactions, tenants in frankalmoin (among them the wealthy Cistercian monks) to forced contributions from the wool and hides of their sheep, while the right of the Crown arbitrarily to raise the “farms” of all parts of its own demesnes was deliberately reserved.^[476] (4) The Crown’s initiative in “taxation” (here restricted in regard to “aids” and “scutages”) was, under many other names and forms, left intact. The king required no consent before taking such prizes and custom dues as he thought fit from merchandise reaching or leaving England, or before taking tolls and fines at inland markets under the plea of regulating trade. Tallages also were exigible at discretion from aliens and Jews, from tenants of demesne, from London and other chartered towns. (5) The limited scope of this restriction on prerogative is further illustrated by the method provided for taking “the common consent.” The assembly to be convened for that purpose was a narrow body, representative neither of the several ranks and classes of the community, nor of the separate national interests, nor yet of the various districts of England. On the contrary, its composition was extremely homogeneous, an aristocratic council of the military tenants of the Crown, convened in such a way that only the greater among them were likely to attend.^[477]

These facts serve as a warning not to read into Magna Carta modern conceptions which its own words will not warrant. This famous clause was far from formulating any national doctrine of self-taxation; it was primarily intended to protect Crown tenants from impositions levied by John, not qua sovereign but qua feudal lord. Such as it was, it was totally omitted, along with its corollary (chapter 14), in 1216. The provision substituted for both, in the Charter of 1217, referred only to scutages, 284saying nothing about aids, and cannot possibly be read as a general prohibition of all arbitrary taxation by the Crown.^[478]

CHAPTER THIRTEEN.

Et civitas Londonie habeat omnes antiquas libertates et liberas consuetudines suas, tam per terras, quam per aquas. Preterea volumus et concedimus quod omnes alie civitates, et burgi, et ville, et portus, habeant omnes libertates et liberas consuetudines suas.

A full list of the liberties and customs of London would be a long one; and an account of how each of these grew up and was confirmed by the Crown need not be given here. The most cherished of the privileges enjoyed in John’s day were the right to appoint a civic chief, who bore the name of mayor, and the right to choose sheriffs of their own who should collect the city’s firma^[479] (or annual rent payable to the exchequer), so as to obviate the intrusion of royal bailiffs. Only a brief account of the way in which the metropolis obtained these two privileges need be here attempted.

The chief feature of London before the Norman Conquest seems to have been lack of proper municipal organisation. Dr. Stubbs describes the capital during the eleventh century 285as “a bundle of communities, townships, parishes, and lordships, of which each has its own constitution.”^[480] It was thus a collection of small administrative units, rather than one large unit. Some semblance of legal unity was, it is true, afforded by the folkmoot, in which the citizens regularly assembled; by its smaller council known as “husteng”; and perhaps also by its “cnihtengild” (if, indeed, this third body be not entirely mythical); while the existence of a “portreeve” shows that for some financial purposes also the city was treated as one whole. London, however, prior to the reign of Henry I. was far from possessing machinery adequate to the duties of a local government for the whole community.

The first step towards acquiring a municipal constitution is generally supposed to have been taken by the citizens when they obtained a charter from Henry I. in the last years of his reign (1130-35). This is not strictly accurate. London, indeed, by that grant gained certain valuable privileges and enjoyed them for a short time, but it did not obtain a constitution. The chief rights actually conferred by Henry were as follows:—(1) The firma was fixed at the reduced rate of £300 per annum, the citizens obtaining for this payment a lease in perpetuity of their own city with the surrounding county of Middlesex—the grant being made to the citizens and their heirs; (2) they acquired the right to appoint whom they pleased as sheriffs of London and Middlesex, implying the exclusion of the king’s tax-collectors by men of their own choosing; (3) a similar right of appointing their own nominee as justiciar was also conferred on them, to the exclusion apparently of the royal justices of eyre. Many minor privileges were confirmed which need not here be specified. Mr. J. H. Round^[481] argues 286with convincing force that these concessions, important as they were, did not confer a civic constitution upon London. Henry’s charter, in his opinion, confirmed all the already existing separate jurisdictions and franchises, perpetuating the old state of disunion, rather than creating a new principle of cohesion. He proves, further, that these benefits continued in force only for a few years after Stephen’s accession. That king was coerced by the Earl of Essex into infringing the citizens’ chartered rights; and London did not regain the ground thus lost until the reign of Richard I.

Henry II., indeed, granted a charter to the citizens in 1155, which is usually interpreted as a full confirmation of all the concessions of the earlier Henry.^[482] Mr. Round has conclusively proved the error of this opinion.^[483] The charter of 1155 restricted, rather than enlarged, the privileges of London, being couched in cautious and somewhat grudging terms. The main concessions of the earlier charter were completely omitted: the citizens no longer elected their own sheriffs or their own justiciar; the reduction of the firma to £300 was not confirmed; and subsequent pipe rolls show that Henry doubled that amount, although the Londoners protested, arguing for the lower rate.

The next crisis came early in Richard’s reign. Then it was that London first obtained its municipal constitution. Then also it regained and secured on a permanent basis the privileges precariously held for a few years under Henry I. and Stephen. The form in which the constitution came at last was borrowed from France, and was neither more nor less than the Commune, so well known on the Continent in the twelfth and thirteenth centuries. The commune of London was possibly modelled upon the commune of Rouen; the chief cities of England and Normandy respectively must have had intimate relations. Mr. Round^[484] has shown that these concessions were not, as has sometimes been supposed, voluntarily granted in 1189 by Richard I., but were 287extorted from his younger brother John, when that ambitious prince was bidding high for powerful allies to support his claim to act as Regent. London really got its first constitution on 8th October, 1191, under picturesque and memorable circumstances. While Richard tarried in the Holy Land, a scramble took place at home for the right to represent him. The Chancellor Longchamp had been appointed Regent; but John, wily and unscrupulous, successfully ousted him, with the help of the men of London. At the critical moment the metropolis had offered its support on conditions, which included the restoration of all the short-lived privileges conferred by the charter of Henry I., and, in addition, a municipal constitution of its own in the form of a commune of the continental type.

Mr. Round, in a notable passage, describes the scene. "When, in the crisis of October, 1191, the administration found itself paralysed by the conflict between John, as the king’s brother, and Longchamp, as the king’s representative, London, finding that she held the scales, promptly named the 'Commune’ as the price of her support. The chronicles of the day enable us to picture to ourselves the scene, as the excited citizens, who had poured forth overnight, with lanterns and torches to welcome John to the capital, streamed together on the morning of the eventful 8th October at the well-known sound of the great bell, swinging out from its campanile in St. Paul’s Churchyard. There they heard John take the oath to the ‘Commune,’ like a French king or lord; and then London, for the first time, had a municipality of her own."^[485]

For any accurate definition of a commune we look in vain to contemporary writers, who are usually carried away by their political bias. Richard of Devizes^[486] quotes with approval, “Communia est tumor plebis, timor regni, tepor sacerdotii.” Some insight has been gained in recent years, however, into its exact nature. A Commune was a town which had obtained recognition as a corporate entity, as 288a link in the feudal chain, becoming the free vassal of the king or other lord, and itself capable of having sub-vassals of its own.^[487] Its chief institutions were a mayor and an elective council, generally composed of twenty-four members, some or all of whom were known as échevins or skivini, a word which in its modern form of “scavengers” has fallen on evil days, no longer denoting the city fathers, but men who perform civic duties of a useful but less dignified nature. Perhaps the chief peculiarity of the commune was the method of its formation, namely, by popular association or conspiracy, involving the taking of an oath of a more or less revolutionary nature by the citizens and its subsequent ratification by those in authority. It is generally admitted that these communes, though revolutionary in their origin, were not necessarily democratic in their sympathies. Under the new constitution of London, the grievous taxation of Richard’s reign was made to fall more heavily on the poor of London than on any other class. The commune thus set up in 1191, tolerated at first rather than encouraged by the Crown, formed thenceforth the municipal government of the capital; the citizens chose not only their own sheriffs, but also their own mayor, although the latter, when once appointed, held office for life.

When John became king, he granted three charters, ratifying the privileges of the capital in return for a gersuma (or slump payment) of 3000 marks.^[488] All the franchises specified in the old charter of Henry I. were now confirmed, with one exception: the liberty to appoint a justiciar of their own, now seen to be inconsistent with the Crown’s centralizing policy, was abandoned. None of these charters made mention of mayor or commune, but they confirmed some minor privileges gained in Richard’s reign.^[489]

289A fourth charter, dated 20th March, 1201, was merely of temporary interest; but a fifth, granted on 9th May, 1215, little more than a month previous to Magna Carta, is of great importance, and represents the bait thrown by John to the citizens in the hope of gaining their support in this new crisis, as he had previously gained it in the crisis of 1191. The fifth charter not merely confirmed to the citizens in explicit terms the right already enjoyed by them of electing a mayor for life, but allowed them to elect a new one every year. Miss Norgate does not exaggerate, when she describes this concession as “the crowning privilege of a fully constituted municipality, the right to elect their own mayor every year.”^[490] An annually elected magistrate would, undoubtedly, feel his dependence on the citizens more than one holding office for life; but it seems probable that the chief value of the grant lay in its confirmation by John as king, of the rights conceded by him fourteen years earlier as his brother’s unauthorised representative, and enjoyed meanwhile on an insecure tenure. The charter of May, 1215, by officially recognizing the mayor, placed the commune over which he presided on a legal footing. The revolutionary civic constitution, sworn to in 1191 was now confirmed. The citizens acted on the permission granted them of annually changing their chief magistrate: but in place of supporting the king who made the grant, they opened their gates to his enemies.^[491]

Such then was the London whose privileges were confirmed by Magna Carta—a city which had slowly grown to greatness, obtaining after many struggles a complete municipal constitution in the form of a commune with annually elected mayor and council, as well as sheriffs of 290its own appointment, who excluded the Crown’s financial officers not only from the district within its walls but from the whole of Middlesex. The Great Charter, avoiding details, confined itself to a general confirmation to the men of London of their ancient “liberties and free customs,” two words^[492] whose vagueness ought in this connection to receive a liberal interpretation.^[493]

London, in this respect, was not to stand alone; a similar concession was explicitly made in favour of all other cities, boroughs, towns, and sea-ports. This was a mere confirmation, however, not to be read as conferring new privileges or exemptions, each borough being left to prove its own customs as best it might. In the reissues of Henry, the distinction of being mentioned by name was shared by these “barons of London,” with “the barons of the Cinque ports,” who from their wealth, their situation, and their fleet, were allies well worth conciliating. They played, indeed, a prominent part in the decisive naval victory gained by Hubert de Burgh on 24th August, 1217.^[494]

Other portions of John’s Great Charter which specially affected the Londoners were the last clause of chapter 12, and chapters 33 and 41; while many of the privileges granted or confirmed in other chapters were shared by them. The Mayor of London, it should be added, was one of the executive committee of twenty-five, entrusted with wide powers to enforce the provisions of the Charter.^[495]

Among the most cherished privileges claimed by the chartered boroughs were the rights to exact tolls and to place oppressive restrictions upon all rival traders not members of their guilds, foreigners and denizens alike. The confirmation of these privileges in this chapter has been 291held to contradict chapter 41, which grants protection and immunities to foreign merchants.^[496] The inconsistency, however, should not be pushed too far, since the later chapter aimed at the abolition of “evil customs” inflicted by the king, not of those inflicted by the boroughs. At the same time, all favour shown to aliens would be bitterly resented by their rivals, the English traders. If the charter had been put in force in its integrity, the more specific privileges in favour of foreign merchants would have prevailed in opposition to the vague confirmation of borough “liberties” wherever the two came into collision.^[497]

CHAPTER FOURTEEN.

Et ad habendum commune consilium regni, de auxilio assidendo aliter quam in tribus casibus predictis, vel de scutagio assidendo, summoneri faciemus archiepiscopos, episcopos, abbates, comites, et majores barones, sigillatim per litteras nostras; et preterea faciemus summoneri in generali, per vicecomites et ballivos nostros, omnes illos qui de nobis tenent in capite; ad certum diem, scilicet ad terminum quadraginta dierum ad minus, et ad certum locum; et in omnibus litteris illius summonicionis causam summonicionis exprimemus; et sic facta summonicione negocium ad diem assignatum procedat secundum consilium illorum qui presentes fuerint, quamvis non omnes summoniti venerint.

This chapter, which has no equivalent among the Articles of the Barons, appears here incidentally: it would never have found a place in Magna Carta but for the need of suitable machinery to give effect to the provision of chapter 12.^[498]

As the earlier clause is frequently supposed to contain a general doctrine of taxation, so this one is often cited as enunciating a general doctrine of parliamentary representation; while the close connection between the two chapters is taken to indicate an equally close connection between the two conceptions supposed to underlie them, and is urged as evidence that the framers of Magna Carta had grasped the essentially modern principle that taxation and representation go together.^[499] In this view, the barons at Runnymede deserve credit for anticipating some of the best features of the modern system of parliamentary government. The words of the text, however, will scarcely bear so liberal an interpretation. Vital points of difference between the principles of Magna Carta and the modern doctrine of representation are revealed by a careful analysis.

Under chapter 12 scutages and extraordinary aids could only be levied “with common counsel of our kingdom,” and now chapter 14, by formulating rules for convening the individuals whose consent was thus required, fixes authoritatively the composition of an assembly definitely charged with this specific function. The same Latin words which signify joint “consent” or counsel thus came to signify also 293a special institution, namely, that “Common Council” afterwards of such vital constitutional importance, continuing under a new name the old curia regis in several of its most important aspects, and passing in turn into the modern Parliament. The duties and constitutional importance of this commune concilium may be considered under six heads.

I. Nature of the Summons. Formal writs had to be issued when the attendance of the members was required. These writs must specify the time, place, and reason of assembling, giving formal notice at least forty days in advance. In these respects the writs issued were all to be the same; but in one vital particular a distinction was recognized. Each of the really powerful men of the realm—archbishops, bishops, abbots, earls, and "other greater barons"—must receive a separate writ, under the royal seal, addressed to him individually and directly, while the “smaller barons” were to be summoned collectively and indirectly through the sheriffs and bailiffs of each district.

II. Composition of the Council. It is clear that the meetings contemplated were purely baronial assemblies since none but Crown tenants were invited to attend; while individual notice under the king’s seal was given only to the more important magnates among them. The Common Council of the Charter was thus an assembly of military Crown tenants, and “the common consent of my kingdom” in John’s mouth was synonymous with “the consent of my barons.”^[500]

The king’s Council had by this time freed itself from any complicated theories as to its own composition, which may 294ever have hampered it. It was now extremely homogeneous; a feudal muster of Crown vassals. Some historians, indeed, in their anxiety to find distinguished pedigrees for their democratic ideals, have traced the origins of the leading features of the modern Parliament back to the Anglo-Saxon era; but such attempts are hurtful to the best interests of history, while they do not in the least advance the cause of popular liberties.

It is unnecessary here to examine the various rival theories professing to explain the composition of the Anglo-Saxon Witenagemot, or to discuss the exact connection between that venerable institution and the Curia Regis of the Norman kings. As a matter of fact, the early constitution of the court of the Conqueror or of Rufus seems to have been monarchic rather than aristocratic or democratic; that is to say, it depended to a great extent on the personal will of the king, who might issue or withhold writs of summons very much as he pleased. No evidence exists, of date anterior to the Great Charter, of any magnate thrusting himself unbidden into a royal council or forcing the king to issue a formal invitation. On one occasion, indeed, the action of Henry II. in omitting to issue a writ laid him open to unfavourable criticism. This was in October, 1164, when a special council was summoned to Northampton to pass judgment upon various questions at issue between the king and Thomas à Becket. The primate was ordered to appear for judgment, but the formal writ of summons, which every archbishop, as holder of a barony, was wont to receive as matter of course, was deliberately withheld. Apparently contemporary opinion condemned this omission.^[501] It is safe to infer, then, that as early as 1164, the method of issuing these writs had become uniform, but this constitutional understanding was not reduced to writing until embodied in Magna Carta. Thus it was in 1215 that the magnates of England formulated for the first time a distinct claim to be present at the king’s councils; and even then the demand only referred to assemblies summoned for one specific 295purpose. Previously, attendance was reckoned not as a privilege, but merely as an expensive burden, incident, like so many other burdens, to the possession of land.^[502]

III. Position of the “Minor Barons.” In recognizing a distinction between two classes of Crown tenants, the Great Charter merely gave the weight of its authority to existing usage, as that had taken shape in the reign of Henry II. Crown tenants varied in power and position in proportion to the extent of their lands, from the great earl who owned the larger share of one or more counties, down to the small free-holder with only a few hides, or it might be acres, of land. A rough division was drawn somewhere in the midst; but the exact boundary was necessarily vague, and this vagueness was probably encouraged by the Crown, whose requirements might vary from time to time.^[503] Those Crown tenants on one side of this fluctuating line were known as barones majores, those on the other as barones minores. The distinction had been recognized as early as the days of Henry II.;^[504] but Magna Carta helped to stereotype it, and contributed to the growing tendency to confine the word “baron” to the greater men.^[505] It is unlikely that any “minor baron” who obeyed the general summons would enjoy equal authority with the magnates invited individually by writ; and it is difficult to say even whether he was sure of a welcome, and, if so, in what capacity. Three distinct theories at least have been advanced as to the position occupied by the “minor barons” in the Common Council. (1) The duty of attendance, burdensome to all, was specially burdensome to the poorer Crown tenants. It has accordingly been suggested 296that the device of inviting them by general summons was intended as an intimation that they need not come. This is the view taken by Prof. Medley.^[506]

(2) Dr. Hannis Taylor holds an exactly opposite opinion, reading this chapter as the outcome of a desire to ensure the fuller attendance of the smaller men—as an attempt “to rouse the lesser baronage to the exercise of rights which had practically passed into desuetude.”^[507] Each of the barones minores was thus encouraged to attend for himself and his own interests. If such an attempt had really been made, and had succeeded in compelling the attendance of a large proportion of those who previously had almost made good their right to shirk the burden, the result would have been to leave no room whatever for the future introduction of the representative principle into the national council.

(3) A third theory, while agreeing that those summoned by general writ were intended to obey the summons, thinks that the smaller Crown tenants were called not exclusively each man for himself, but in a representative capacity. It is thus suggested that a few knights (probably elected for this purpose by their fellows) were expected to attend to represent the others. Dr. Stubbs seems predisposed towards this opinion, although he expresses himself with his usual caution.^[508]

The reasons for rejecting this third theory will be more conveniently discussed in connection with the doctrine of representation. It is perhaps unnecessary to decide between the two others; but it may be suggested, even at the risk of seeming to invent a fourth theory in a series already too numerous, that to the great men who framed the clause it must have been a matter of supreme indifference whether their humbler fellow-tenants attended or stayed away. The general summons expressed neither an urgent desire for their 297presence, nor yet an intimation that they were not wanted; but merely conformed with the established usage, and left with each “minor baron” the decision whether he should come or stay away. His presence would make little difference upon the deliberations of the magnates.

IV. Representation. It is well to hesitate before applying to ancient institutions a word so essentially modern as “representation.” In a sense the reeve and the four best men of every village “represented” their fellows in the county court from a very early age; and in a somewhat different sense the feudal lord “represented” his free tenants and villeins in the king’s court, but in neither instance was there anything approaching the very definite relation which exists at the present day between the elected member of Parliament and the constituents he “represents.” It is true that the difference may in some respects be one of degree rather than of kind, and it is further true that two years before the date of Magna Carta a tentative experiment had been tried in the direction of introducing representatives of the counties into the king’s Council, thus taking the first step in a long process destined ultimately to lead without any absolute breach of continuity to the modern Parliament. But the Barons in June, 1215, showed no desire to follow the example set by John in November, 1213. The terms in which Magna Carta directs that all minor barons should be summoned are explicit, and may be profitably contrasted with the words used in the writ dated 7th November, 1213, addressed to the sheriff of Oxford, ordering him to compel, in addition to the barons and the knights already summoned (presumably barones minores), the attendance of quatuor discretos homines de comitatu tuo (presumably other than Crown tenants).^[509]

So far from the words of Magna Carta showing any desire to confirm this precedent, they show a deliberate intention to ignore it, and to fall back on the more ancient practice. The members of the assembly which Magna Carta stipulated should be convened for the taking of “the common consent” 298were all of one type, drawn from the same section of the land-owning aristocracy, namely, military tenants-in-chief of the Crown. The barons, great and small, might be present, each man for himself; but the other tax-paying classes were completely ignored.^[510] They were neither present nor yet represented. The barons in this, as in other matters, stood out for the old feudal order under which they had preserved a wide measure of independence from the Crown’s control; whereas King John for selfish reasons adopted the more enlightened policy of his father, and even, unconsciously it may be, anticipated some of the measures of his grandson, Edward Plantagenet. In brief, John was progressive, while his opponents were conservative. The present chapter must be added to the not inconsiderable list of those which attempted to bring about a feudal reaction.^[511]

V. Powers and Functions of the Council. It was not until long after the days of Magna Carta that Parliament secured the most important of those functions now deemed essential to its existence. No claim was made by the Great Charter on behalf of the commune concilium to any right to be consulted in the making of laws or in the performance of administrative or judicial duties by the Crown. No effort was made towards formulating any doctrine of ministerial responsibility. This assembly, narrow and aristocratic in its composition, had only one right secured to it by Magna Carta—namely, a limited control over one form of taxation. Even here, as we have seen, no general or sweeping claim was put forward on its behalf. It had no right to a control of the national purse: the barons confined themselves to a selfish assertion of a right to protect their own individual pockets against an increase of feudal burdens. A modern Magna Carta would have contained a careful list of the powers and privileges of “the common council of the 299realm,” and would have given to this list a conspicuous place of honour.^[512]

VI. Rights of Majorities and Minorities. The medieval conception of constitutional solidarity was defective; the king’s council acted too much like a fortuitous gathering of unrelated individuals, and too little like a recognized organ of the body politic. Each “baron” was summoned on his own behalf, and in order that he might give his individual consent to a proposed levy; while it is doubtful how far a dissenting minority could be bound by a decision of the rest. Accordingly, the framers of Magna Carta deemed it necessary to assert what would be too obvious to modern politicians to require assertion—namely, that when the commune concilium had been properly convened, its power to transact business should not be interfered with because a section of those summoned chose to stay away. “The business shall proceed on the day appointed, according to the advice of such as shall be present, although all that were summoned do not come.” Not all business was competent, however, for the cause of summons had to be mentioned in the writs. If these writs were in order, the Council, so we may presume, had power to impose aids or scutages on those who were absent.^[513]

Nothing is said, however, as to the validity of a protest made by those who came and expressed disapproval of what the majority agreed to. As the substance of this chapter was observed in practice (though omitted from subsequent confirmations), a precedent of the year 1221 may perhaps be cited to illustrate the interpretation put upon it by contemporary practice. A Council summoned by William Marshal, as Regent of Henry III., had consented to a 300levy of scutage, and the bishop of Winchester was assessed at 159 marks as the amount due for his knight’s fees. He refused to pay, on the ground, quite untenable by modern standards, that he had all along dissented from the grant. The fact of his protest was vouched by Hubert de Burgh and others who had been present at the Council. The plea was actually accepted by the Regent, and the exchequer adjudged bishop Peter to be quit of the payment.^[514] The incident shows how far the statesmen of the day were from realizing the most elementary principles of political theory. They had not yet grasped the conception of a Council endowed with constitutional authority to impose its will on a dissenting minority. Here it was apparently a minority of one.

The barons by consenting in 1217 to accept a return to the fixed rates of scutage customary in the reign of Henry II., deliberately sacrificed such right of control over the finances of the nation as they may have obtained in 1215. At no time, indeed, did they show any appreciation of the vital nature of the constitutional issues at stake. The importance of the common council, and the necessity of defining its composition, functions, and privileges, lay entirely beyond their narrow sphere of vision.

It should be remembered, however, that the substance of this chapter of John’s charter (although discarded in subsequent reissues) was virtually observed in practice by the Crown, and treated as in force by the barons. From this time forward the Common Council was almost invariably consulted before the Crown attempted to levy such contributions; and sometimes was bold enough to make conditions or to decline payment altogether, the first instance on record of an outright refusal taking place in a Parliament held at London in January, 1242.^[515]

The barons, in October, 1255, if Matthew Paris has not fallen into error, considered that the provisions of 301chapters 12 and 14 of John’s Magna Carta were still in force, although they had been omitted in the reissues of Henry III. When the king asked a liberal aid in furtherance of his scheme for securing the crown of Sicily for his son Edmund, those present at the Council deliberately refused, on the ground that some of their peers had not been summoned “according to the tenor of Magna Carta.” This incident illustrates the extreme constitutional importance rightly attached by the barons to the rigid observance by the Crown of the established usage relative to the convening of Parliament.^[516]

CHAPTER FIFTEEN.

Nos non concedemus de cetero alicui quod capiat auxilium de liberis hominibus suis, nisi ad corpus suum redimendum, et ad faciendum primogenitum filium suum militem, et ad primogenitam filiam suam semel maritandam, et ad hec non fiat nisi racionabile auxilium.

This chapter confers on the tenants of mesne lords protection similar to that already conferred on Crown 302tenants: sums of money are no longer to be extorted from them arbitrarily by their lords.^[517] Different machinery, however, had here to be adopted, since the expedient relied on in chapter 12 (“the common consent of the realm”) was clearly inapplicable.

I. Points of difference between tenants-in-chief and under-tenants. Tenants of mesne lords were in some respects better off than tenants of the king,^[518] but in others their position was distinctly worse. Not only had they to satisfy the demands of their own lord for “aids,” but they generally found that part of every burden laid by the king upon that lord’s shoulders was transferred to theirs. In seeking to provide for under-tenants the protection of which they stood so much in need Magna Carta looked, not to the common council, but to the king. No mesne lord was to be allowed to compel his tenants to contribute to his necessities without obtaining a written licence from the Crown; and stringent rules forbade the issue of such licences except upon the usual three occasions. Contrast this procedure with that which affected Crown tenants.

(1) While chapter 12 had spoken of “aids and scutages,” this one speaks of “aids” alone. The omission can be readily explained: a mesne lord in England had no right of private war, and was, as a logical consequence, debarred from demanding scutage upon his own initiative. He might, indeed, allocate upon his freeholders part of any scutage which the Crown had taken from him; but the great barons who framed the Charter had no intention to renounce so just a right. The restriction of this clause to “aids” was thus intentional.

(2) It would have been absurd to require “the 303common counsel of the realm” to every aid paid by the freeholders of a manor. The embryo Parliament had no time for petty local affairs; and the present chapter makes no such suggestion. Some substitute had, however, to be found. A natural expedient would have been to compel the mesne lord who wished an aid to take “the common consent” of the freeholders of his manor, assembled for that purpose in their court baron, as in a local parliament. This course was sometimes followed. Henry Tracey, for example, in 1235 (although armed with a royal writ), convened his Devonshire knights and obtained their collective consent to an aid of 20s. per fee on the occasion of his daughter’s marriage.^[519] No such obligation, however, had been placed upon mesne lords by Magna Carta, which had sought a practical substitute for “the common consent of the realm” in quite a different direction, as will be explained immediately.

(3) A check upon such exactions was sought, not in any action by the court baron, but in the mesne lord’s need for a royal licence. The necessity for this may at first have been a practical, rather than a legal, one; for executive power lay with the officers of the Crown alone, and the sheriff gave his services only at the king’s command.^[520] The Crown thus exercised what was virtually a power of veto over all aids taken by mesne lords. Such a right, 304conscientiously used, would have placed an effectual restraint on their rapacity. John, however, employed it solely for his own advantage, selling writs to every needy lord who proposed to enrich himself (and, incidentally, the Crown also) at his tenants’ expense.

Magna Carta forbade the two tyrants thus to combine against the sub-tenants, enunciating a hard-and-fast rule which, if duly observed, would have struck at the root of the grievance. The whole subject of aids was removed from the region of royal caprice into the region of settled law. No writ could be lawfully issued except on the three well-known occasions.

II. The Influence of Magna Carta upon later Practice. This chapter, along with chapters 12 and 14, was discarded by Henry III.; and little difference, if any, can be traced between the practices that prevailed before and after 1215. Only in one particular were the requirements of John’s Magna Carta observed, namely, as regards the need for obtaining a royal licence. Mesne lords after this date, whatever may have been their reason, invariably asked the Crown’s help to collect their aids. They could not legally distrain their freeholders, except through the sheriff, and this was, in part at least, a result of Magna Carta.^[521]

Henry III., however, entirely disregarded the rule which forbade the licensing of extraordinary aids. Like his ancestors, he was prepared to grant writs on almost any plausible pretext. From the Patent and Close Rolls, as well as from other sources, illustrations of the Crown’s earlier and later practice may readily be collected.

(1) Scutages. In 1217, for example, Henry granted permission to all Crown tenants who had served in person to collect scutage from their knights.^[522]

(2) Ordinary Aids. (a) John in 1204 authorized the collection of “an effectual aid” from the knights and freeholders of the Constable of Chester for the ransom of their 305lord.^[523] (b) A royal writ in 1235 allowed Henry Tracey, as already mentioned, to take an aid for his eldest daughter’s marriage.

(3) Special Aids. (a) When a fine of sixty marks was incurred in 1206 by the Abbot of Peterborough, John allowed him to distrain his under-tenants for contributions.^[524] (b) An heir, paying relief, might likewise transfer the obligation to his freeholders.^[525] (c) The lord’s debts were frequently paid by his tenants. The returns to the Inquest of 1170 contain particulars of the “sums given individually by some forty burgesses of Castle Rising towards paying off the mortgages of their lord, the Earl of Arundel, who was clearly in the hands of the Jews”;^[526] while in 1234 the Earl of Oxford and the Prior of Lewes each obtained a letter patent distraining their tenants to contribute to the discharge of their debts.^[527] Sufficient evidence is thus preserved that Henry III. took full advantage of the omission from his own charters of this part of his father’s promises. He did not question too minutely the justice of applications for such writs, if good fees were punctually paid. His letters, during the earlier years of his reign, authorized the taking of a “reasonable” aid, without hinting at any mode of determining what that was. This is illustrated by the procedure adopted by Henry Tracey in 1235, who apparently debated with his assembled knights of Devonshire the amount to be paid as “reasonable,” and finally accepted 20s. per fee.^[528] It is interesting to note, however, that this same mesne lord, twelve years later, obtained a writ bidding the sheriff of Somerset assist him to collect “the scutage of Gascony” at a specified rate, namely, 40s. per fee.^[529]

306The first Statute of Westminster virtually reverted to the rule laid down in 1215, for its terms imply that aids could only be taken on the three well-known occasions. The vague declaration that these should be reasonable in amount is replaced by the specification of a fixed rate, namely 40s., or double what had been usual at an earlier period. Definition of the amount and times of payment may, however, have been worth purchasing even at this increase.

CHAPTER SIXTEEN.

Nullus distringatur ad faciendum majus servicium de feodo militis, nec de alio libero tenemento, quam inde debetur.

For military tenants, the transition from scutage to service was a natural one; since it was not enough to protect themselves from exactions in money, if they were still exposed to arbitrary exactions in kind. John, therefore, declared that no freeholder should be constrained to do more service for his lands than he was legally bound to do. Disputes might arise, however, as to what extent of service actually was due in each particular case, and Magna Carta did nothing to remove such ambiguities. The difficulties of definition, indeed, were enormous, since the duration and conditions of service might vary widely even among tenants-in-chivalry, in consequence of special exemptions or special burdens which appeared in title deeds or rested upon immemorial usage. The barons would be unwilling to enter on so intricate and laborious a task, fearing that the introduction of such complications might do more harm than 307good. The necessity for accurate definition may never have occurred to them: the main purport of their grievance was so vividly present to their own minds that they did not acknowledge the possibility of any mistake. The military Crown tenants had frequently objected to serve abroad, particularly during John’s campaigns in Poitou, which involved a long expensive journey to a region in which they had nothing at stake.^[530] They regarded themselves as not legally bound to make expeditions to such portions of the Angevin Empire as had not belonged to the Norman kings when their ancestors got their fiefs. To force them to enter on campaigns to the south of France, or to fine them heavily for staying at home, was, they argued, to distrain them ad faciendum majus servicium de feodo militis quam inde debetur. When they inserted these words in the Charter, they doubtless regarded them as an absolute prohibition of compulsory service in Poitou, at all events.^[531] The clause was wide enough, however, to include many minor grievances connected with service. The barons did not confine its provisions to military service even, but extended it to other forms of freehold tenure (“nec de alio libero tenemento”). No freeholder, whether in socage, serjeanty, or frankalmoin, could in future be compelled to render services not legally due.

If the barons thought they had thus settled the vexed questions connected with foreign service, they deceived themselves. Although this chapter (unlike those dealing with scutage) remained in full force in all subsequent confirmations, it was far from preventing disputes. Yet the disputants in future reigns occupied somewhat different ground. From the days of William I. to those of Charles II.Charles II., when the feudal system was abolished, quarrels frequently arose, the most famous of which culminated in 1297 in Edward’s 308unseemly wrangle with the Earls of Norfolk and Hereford, whose duty it was to lead the royal army as hereditary Constable and Marshal respectively, but who refused point-blank to embark for Gascony except in attendance on the king’s person.^[532]

It has been shown in the Historical Introduction^[533] how the obligations of a military tenant fell naturally into three groups (services, incidents, and aids), while a fourth group (scutages) was added when the Crown had adopted the expedient of commuting military service for its equivalent value in money.

Feudal grievances also may be arranged in four corresponding groups, each redressed by special clauses of Magna Carta: abuse of aids by chapters 12, 14, and 15; abuse of the feudal incidents, by chapters 2 to 8; abuse of scutage, by chapters 12 and 14; and abuse of service, by the present chapter, which thus completes the long list of provisions intended to protect tenants against their feudal lords.

CHAPTER SEVENTEEN.

Communia placita non sequantur curiam nostram sed teneantur in aliquo loco certo.

An attempt was here made to render royal justice cheaper and more accessible. Law-suits in which the Crown had no special interest, common pleas, were to be 309held in some one, fixed, pre-appointed spot, and must no longer follow the king as he moved about from place to place. The full extent of the boon conferred by this reform will be better appreciated after a short consideration of the method of dispensing justice adopted by Henry II. and his sons.

I. The Curia Regis as a Court of Law. The evil complained of was a characteristically medieval one, and arose from the fact that all departments of government were originally centred in the king and his household, or Curia Regis, which performed royal and national business of every kind. This Curia Regis, indeed, united in itself the functions of the modern Cabinet, of the administrative departments (such as the Home Office, the Foreign Office, and the Admiralty), and of the various legal tribunals. It was the parent inter alia of the Court at St. James’s and the courts at Westminster. One result of throwing so many and miscellaneous duties on a small body of hard-worked officials was to produce a congestion of business. Nothing could be done outside of the royal household, and that household never tarried long in any one spot. Everything was focussed to one point, but to a point constantly in motion. Wherever the king went, there the Curia Regis, with all its departments, went also. The entire machinery of royal justice followed Henry II., as he passed, sometimes on the impulse of the moment, from one of his favourite hunting seats to another. Crowds thronged after him in hot pursuit, since it was difficult to transact business of moment elsewhere.

This entailed intolerable delay, annoyance, and expense upon litigants who brought their pleas for the king’s decision. The case of Richard d’Anesty is often cited in illustration of the hardships which this system inflicted upon suitors. His own account is extant and gives a graphic record of his journeyings in search of justice, throughout a period of five years, during which he visited in the king’s wake most parts of England, Normandy, Aquitaine, and Anjou. The plaintiff, although ultimately 310successful, paid dearly for his legal triumph. Reduced to borrow from the Jews to meet his enormous outlays, mostly travelling expenses, he had to discharge his debts with accumulations of interest at the ruinous rate of 86⅔ per cent.^[534]

II. Common Pleas and Royal Pleas. Long before 1215 all litigations conducted before the king’s courts had come to be divided roughly into two classes, according as the royal interests were or were not specially affected by the issue. Those on one side of this fluctuating line were known as royal pleas, or “pleas of the Crown,” provisions for holding which are contained in chapter 24, those on the other side as ordinary pleas or “common pleas,” to which alone the present chapter refers. As these ordinary suits did not require to be determined in the royal presence, it was therefore possible to appoint a special bench of judges to sit permanently in some fixed spot, to be selected once for all as likely to suit the convenience of litigants. No town was named in Magna Carta; but Westminster, even then the natural home of law, was probably intended from the first. It is Westminster that Sir Frederick Pollock has in mind when he writes in reference to this chapter: “We may also say that Magna Carta gave England a capital.”^[535] The barons in 1215, however, in asking this reform, were not insisting on any startling innovation, but demanding merely the strict observance of a rule long recognized. During most of John’s reign, a court did sit at Westminster dispensing justice, with more or less regularity; and there most “common pleas” were tried, unless John ordered otherwise.^[536] Magna Carta insisted that all exceptions must cease; the rule of law must supersede the royal caprice.

311III. Effects of Magna Carta on the genesis of the three Courts of Common Law. The ultimate consequences of the accomplishment of this reform reached further than was foreseen. Intended merely to remove from litigants a practical grievance of frequent occurrence, it had important indirect effects on the development of the English Constitution. By securing for common pleas a permanent home, it gave an impetus to the disintegrating tendencies already at work within the many-sided household of the king. It contributed somewhat to the slow process whereby the Curia Regis, as an administrative organ, was differentiated from the same Curia as the dispenser of justice. It helped forward the cleavage destined to divide completely the future Courts of Westminster from the Court of St. James’s and from Downing Street. Nor was this all: the special treatment accorded to “common pleas” emphasized the distinction between them and royal pleas, and so contributed to the splitting up of the same Curia Regis, on its judicial side, into two distinct tribunals. One little group of judges were set apart for hearing common pleas, and were known as "the king’s Judges of the Bench," or more briefly as “the Bench,” and at a later date as the Court of Common Pleas. A second group, reserved for royal pleas, became the court Coram Rege, known subsequently as the Court of King’s Bench. There were thus two benches: a common bench for common pleas and a royal bench for pleas of the Crown.^[537]

The double process by which these two small courts separated themselves slowly from the parent court and from each other began long prior to Magna Carta, and was not completed before the close of the thirteenth century. These benches were also closely linked with a third bench, known for centuries as the Court of Exchequer, which was in its origin merely one department of that government bureau, the king’s financial Exchequer—that office in which money was weighed and tested and the royal accounts drawn up. Many disputes or pleas affecting 312Crown debts and debtors had to be there decided, and in due time a special group of officials were set aside to try these. These men, called, not judges, but “barons of the exchequer,” formed what was in fact, though not in name, a third bench or court of justice.

All three of the Courts of Common Law—the Court of King’s Bench, the Court of Common Pleas, and the Court of Exchequer—were thus offshoots of the king’s household. In theory, each of these ought to have confined itself to the special class of suits to which it owed its origin—to royal pleas, common pleas, and exchequer pleas respectively; but by a process well known to lawyers and law-courts in all ages, each of them eagerly encroached on the jurisdictions and the fees appropriate to the others, until they became, for most purposes, three sister courts of similar and co-ordinate authority. They were bound to decide all suits according to the technical and inflexible rules of common law; and their jurisdiction thus required a supplement, which was supplied by the genesis of the Court of Chancery, dispensing, not common law, but equity, which professed to give (and, for a short time, actually did give) redress on the merits of each case as it arose, unrestrained by precedents and legal subtleties.

IV. The Evolution of the Court of Common Pleas. The comment usually made upon the present chapter is that we have here the origin of the Court of Common Pleas. Now, legal institutions do not spring, full-fledged, into being. The Court of Common Pleas, like its sister Courts of King’s Bench and Exchequer, was the result of a long process of gradual separation from a common parent stem. Prior to 1215 several tentative efforts seem to have been made towards establishing each of these. On the other hand, it is probable, nay certain, that long after 1215 the Court of Common Pleas did not completely shake off either its early dependence upon the Curia Regis, or yet its close connection with its sister tribunals.

Three stages in the process of evolution may be emphasized. (1) The earliest trace of the existence of a 313definite bench of judges, set apart for trying common pleas, is to be found in 1178, not in 1215. When Henry II. returned from Normandy in the former year, he found that there had been irregularities in his absence. To prevent their recurrence, he effected certain changes in his judicial arrangements, the exact nature of which is matter of dispute. A contemporary writer^[538] relates how Henry chose two clerks and three laymen from the officials of his own household, and gave to these five men authority to hear all complaints and to do right “and not to recede from his court.” It was long thought that this marked the origin of the Court of King’s Bench, but Mr. Pike^[539] has conclusively proved that the bench thus established was the predecessor, not of the royal bench, but rather of the bench for common pleas.

In 1178, then, these five judges were set apart to hear ordinary suits; but they were specially directed not to leave Henry’s court; so that common pleas still “followed the king,” even ordinary litigants in non-royal pleas having to pursue the king in quest of justice as he passed from place to place in quest of sport.

It must not be supposed that the arrangement thus made in 1178 settled the practice for the whole period of thirty-seven years preceding the grant of Magna Carta. On the contrary, it was merely one of many experiments tried by that restless reformer, Henry of Anjou; and the separate court then instituted may have been pulled down and set up again many times. The bench which appears in 1178 had probably, at best, a fitful and intermittent existence. There is evidence, however, that some such court did exist and did try common pleas in the reigns of Richard and John.^[540] On the other hand, this tribunal had 314in John’s reign ceased to follow the king’s movements habitually (thus disregarding the decree of 1178), and had established itself at Westminster.^[541] It was in 1215 considered an abuse for John to try a common plea elsewhere. Times had changed since his father had granted as a boon that a set of judges should remain constantly at “his court” to try such cases.

(2) Magna Carta in 1215 gave authoritative sanction to the already recognized rule that common pleas should be tried at Westminster, instead of moving with the king. No exceptions were henceforth to be allowed. Young Henry renewed this promise, and the circumstance of his minority favoured its strict observance. A mere boy could not make royal progresses through the land dispensing justice as he went. Accordingly, all pleas continued for some twenty years to be heard at Westminster. The same circumstances, which thus emphasized the stability of common pleas (along with all other kinds of pleas) in one fixed place, may have arrested the process of cleavage between the two benches. All the judges of both courts sat at Westminster, and therefore there was the less need for allocating the business between them with any exactitude. The two benches were in danger of coalescing.

(3) About the year 1234 a third stage was reached. Henry began to follow the precedent, set by his ancestors, of moving through his realm with judges in his train, hearing pleas wherever he stopped. While one group of judges went with him, another remained at Westminster. Some way of allocating the business had therefore to be found. Common pleas, in accordance with Magna Carta, remained stationary; while pleas of the Crown went on their travels. The split between the two benches now became absolute. Each provided itself with separate records. From the year 1234, two continuous series of distinct rolls can be traced, known respectively as rotuli placitorum coram rege and rotuli placitorum de banco. If any date in the history of 315one law court, which is in process of becoming two, can be reckoned as specially marking the point of separation, it should be that at which separate rolls appear. The court’s memory lies in its records, which are thus closely associated with its identity. In 1234 the common bench and the royal bench had become distinct.^[542] Evidence drawn from a few years later proves that a definition of common pleas had been arrived at and that the rule which required them to be held “in a fixed place” was insisted on. While Henry and his justices sat in judgment at Worcester in 1238, a litigant protested against his suit being tried before them. It was a “common plea” and therefore, he argued, ought not to follow the king, in violation of Magna Carta. At Westminster only, not at Worcester or elsewhere, could his case be heard.^[543]

With royal pleas, however, it was very different: for long they continued to follow the king’s person without any protest being raised; and the Court of King’s Bench did not finally settle at Westminster for nearly a century after the Court of Common Pleas had been established there. So late as 1300, Edward I. ordained by the Articuli super cartas that “the Justices of his Bench” (as well as his Chancellor) should follow him so that he might have at all times near him “some sages of the law, which be able duly to order all such matters as shall come into the Court at all times when need shall require.”^[544]

V. Erroneous Views. In the reign of Edward I. the real motive of this chapter of Magna Charta—so quickly had the organization of the law courts progressed—had already been lost sight of. The day of wandering common pleas, such as that of Richard d’Anesty, had been long forgotten. Some litigants of Edward’s time had, however, a different grievance of their own, connected with the 316hearing of their suits. The Court of Exchequer was willing, for an adequate consideration, to place its specially potent machinery, devised originally for the king’s exclusive use, at the disposal of private creditors, thus treating “common pleas” as “exchequer pleas.” Ordinary debtors, summoned as defendants before the barones scaccarii, were subjected to harsher treatment than they would have experienced elsewhere. It was not unnatural that defendants who found themselves thus hustled should read the words of Magna Carta relative to “common pleas” as precisely suited to their own case. They made this mistake the more readily as the original motive had been forgotten. The Charter was thus read as preventing the stationary Court of Exchequer (not the constantly moving King’s Bench) from hearing ordinary suits. This erroneous view received legislative sanction. The Articuli super cartas in 1300 declared that no common pleas should thenceforth be held in the Exchequer “contrary to the form of the Great Charter.”^[545]

This is a clear misinterpretation of the intention of Magna Carta. The Exchequer never “followed the Crown”; it stayed at Westminster where its offices, tallies, and pipe rolls were. The Charter would have expressed itself in 317widely different words if it had desired to exclude common pleas from the Exchequer. The Articuli super Cartas, however, attempted what the Charter of 1215 did not. After 1300 it was clearly illegal to hold any pleas in the Exchequer, unless such as affected the Crown and its ministers. Subsequent statutes confirmed this; but their plain intention was always defeated by the ingenious use of legal fictions and the connivance of the Barons of Exchequer, who welcomed the increase of their fees which kept pace with the increase of business.^[546]

The evil directly attacked by Magna Carta was something quite different—an evil wider, more pressing and less technical, namely, the practice of causing ordinary litigants, with their legal advisers and witnesses, to dance attendance on a constantly moving court.

CHAPTER EIGHTEEN.

Recogniciones de nova dissaisina, de morte antecessoris, et de ultima presentacione, non capiantur nisi in suis comitatibus et hoc modo; nos, vel si extra regnum fuerimus, capitalis justiciarius noster, mittemus duos justiciarios per unumquemque comitatum per quatuor vices in anno, qui, cum quatuor militibus cujuslibet comitatus electis per comitatum, capiant in comitatu et in die et loco comitatus assisas predictas.

Provision is thus made for holding before the king’s travelling justices, frequently and in a convenient manner, three species of judicial inquests known as “the three petty assizes.” These are of exceptional interest, not only in relation to Magna Carta, but from their intimate connection with several constitutional problems of prime importance; with the reforms of Henry II. on the one hand, and with the genesis of trial by jury and of the Justices of Assize on the other.

I. The Curia Regis and the travelling Justices. From an early date, certainly from the accession of Henry I., it was the Crown’s practice to supplement the labours which its officials conducted within the precincts of the royal exchequer by the occasional despatch of chosen individuals to inspect the provinces in the royal interests, collecting information and revenue, and, incidentally, hearing lawsuits. Justice was thus dispensed in the king’s name by his delegates in every shire of England, and a distinction arose between two types of royal courts: (1) the King’s Council and its offshoots (including the three courts of common law and the court of chancery) which at first followed the king’s person, but gradually, as already shown,^[549] found a settled home at Westminster; and (2) the courts of the itinerant justices which exercised such delegated authority as the Crown chose from time to time to entrust to them. The natural sphere of the labours of these royal commissioners as they passed from district to district was the court of each shire, specially convened to meet them. 319They formed in this way the chief link between the old local popular courts and the system of royal justice organized by Henry II.,^[550] subordinating the former to the latter, until the county courts virtually became royal courts. These travelling justices passed through two stages, two different types receiving royal recognition at different periods, the Justices in Eyre and the Justices of Assize respectively.

(a) The Justices in Eyre were the earliest form of travelling judges, though their original duties were rather financial and administrative, than strictly judicial. Their history extends from the reign of Henry I. to the end of the fourteenth century.^[551] Their outstanding characteristics were the sweeping nature of the commissions under which they acted (ad omnia placita), the harsh and drastic way in which they used their authority, and their intense unpopularity. Their advent was dreaded like a pestilence: each district they visited was left impoverished by fines and penalties. On one occasion, the men of Cornwall “from fear of their coming, fled to the woods.”^[552]

An eyre was only resorted to at long intervals—every seven years came to be the recognized term—and was intended as a severe method of punishing delinquencies and miscarriages of justice occurring since the last one, and of collecting arrears of royal dues. It was not a visit from these universally-hated Justices of Eyre that the barons in 1215 demanded four times a year.

(b) The Justices of Assize were also travelling judges, but in their original form at least, possessed hardly another feature in common with the Justices in Eyre. Their history extends from a period not earlier than the reign of Henry II. down to the present day.^[553] They seem to have been popular from the first, as their primary function was 320to determine pending suits by a rational and acceptable form of procedure; while the scope of their jurisdiction, although gradually extended as their popularity increased, was at all times limited strictly by the express terms of their commissions. They were regarded not as royal tax-gatherers armed with harsh powers of coercion, but as welcome bearers of justice to the doors of those who needed it.

At first their duties were confined to one species of judicial work, namely, to presiding at enquiries of the kind specially mentioned in the text. These particular inquests were known as “assizes,” and the new species of travelling judges were hence called “Justices of Assize,” a name which has clung to them for centuries, although their jurisdiction has been gradually increased till it now includes both civil and criminal pleas of every description, and although meanwhile the invention of new forms of process has superseded the old “assizes,” and at last necessitated their total abolition.^[554] They are still “justices of assize” in an age which knows nothing of assizes.

II. The Nature and Origin of the three Petty Assizes. The institution of the "assizes"—particular forms of the sworn inquest—occupied a prominent place among the expedients by which Henry II. hoped to substitute a more rational procedure for the form of proof known as trial by combat.^[555]

321The duellum, introduced at the Norman Conquest, remained for a century thereafter the chief method in use among the upper classes for determining all serious pleas or litigations. Gradually, however, it was confined to two important groups of pleas, one civil and the other criminal: namely, appeals of treason and felony on the one hand, and suits to determine the title to land on the other.^[556] This process of restriction was accelerated by the deliberate policy of Henry II., who attempted, indeed, to carry it much further, devising machinery which provided for the defendant or accused party, wherever possible, an option by resorting to which he could, in an ever increasing variety of circumstances, escape trial by battle altogether. Under chapter 36 will be explained the expedient adopted for evading combat in an appeal of treason or felony. The present chapter relates to the procedure devised by Henry for superseding the duellum in certain important groups of civil pleas,^[557] and incidentally affords proof that this part of his reforms had already become popular with the opponents of the Crown. The frequent use of the three Petty Assizes was now insisted on, although the Grand Assize was still viewed askance for reasons to be explained in connection with chapter 34.

(1) The Grand Assize is not mentioned in Magna Carta; but some acquaintance with it is a necessary preliminary to a proper appreciation of the Petty Assizes. In the troubled reign of Stephen—which was rather the reign of anarchy in his name—lands changed hands frequently. This left to his successor a legacy of quarrels, too often leading to bloodshed. There was hardly an important estate in England to which, at Henry’s accession, two or more rival magnates did not lay claim. Constant litigations resulted, and the only legal method of deciding the issue was the duellum.

322At some uncertain date, near the commencement of his reign, Henry II. introduced a startling innovation. The holder of a property de facto (that is the man in actual enjoyment of the estate in virtue of a bona fide title), when challenged to combat by a rival claimant was allowed an option: he might force the claimant (if the latter persisted) to refer the whole matter to the oath of twelve knights of the neighbourhood. Henry’s ordinance laid down careful rules for the appointment of these recognitors. Four leading knights of the whole county were first to be chosen, on whom was placed the duty of selecting twelve knights of the particular district where the lands lay, and these, with all due solemnity and in presence of the king’s justiciars, declared upon oath to which suitor the lands belonged. Their decision was final, and determined the question of ownership for all time coming.^[558] The name Grand Assize was applied alike to the procedure and to the knights who gave the verdict. The twelve knights thus anticipated the functions of a modern jury, while the king’s justiciars acted like the presiding judge at a modern trial.^[559]

Valuable as was this innovation, it had one obvious defect. The option it conferred might sometimes be 323usurped by the wrong man. It was intended to operate in the interests of order and justice by favouring the peaceable holder de facto; but what if a turbulent and lawless claimant, scorning an appeal to legal process, took the law into his own hands, evicted the previous holder by the rude method of self-help, and thereafter claimed the protection of Henry’s ordinance? In such a case the man of violence—the holder mala fide—would enjoy the option intended for his innocent victim.

(2) The petty assizes may, perhaps, be regarded as the outcome of Henry’s determination to prevent such misuse of his new engine of justice. If one claimant alleged that the other had usurped his rights by violence or fraud, the king allowed the preliminary plea thus raised to be summarily decided by the oath of twelve local landowners, according to a procedure known as a petty assize. These petty assizes, of which there were three kinds, all related to questions of “possession,” as opposed to questions of “ownership,” which could only be determined by battle or by the Grand Assize.

(a) The assize of novel disseisin. The word “seisin,” originally synonymous with “possession” in general, was gradually restricted by medieval lawyers to the possession of real estate. “Disseisin” thus meant the interruption of seisin or possession of land; and was the technical term applied to such violent acts of eviction as were likely to defeat the intention of Henry’s ordinance of the Grand Assize. “Novel” disseisin implied that such violent ejection was of comparatively recent date, for a summary remedy could only be given where there had not been undue delay in applying for it. The first of the petty assizes, then, was a rapid and peaceable method of ascertaining by reference to sworn local testimony whether an alleged recent eviction had really taken place or not. Without any of the law’s delays, without any expensive journeys to the king’s Court or to Westminster, but in a rapid manner and in the district where the lands lay, twelve local gentlemengentlemen determined upon oath all allegations of this nature. If the recognitors 324of the petty assize answered “Yes,” then the evicted man would have “seisin” immediately restored to him, and along with “seisin” went the valued option of determining what proof should decide the "ownership"—whether it should be battle or the Grand Assize. An ordinance instituting this most famous of the three petty assizes was issued probably in 1166, a year fertile in legal expedients, and formed a necessary supplement to the ordinance of the Grand Assize, preventing all danger that the option intended for the man of peace should be usurped by the man of violence.^[560]

(b) The assize of mort d’ancestor. The protection afforded to the victim of a “novel disseisin” did not remove all possibility of justice miscarrying. Interested parties, other than the man forcibly ejected, even his heirs, were left unprotected. Further, an heir might be forcibly deprived of his tenement either by his lord or by some other rival claimant before he had an opportunity to take possession; never having been “in seisin,” he could not plead that he had suffered “disseisin.” For the benefit of such an heir, a second petty assize, known as "mort d’ancestor," was invented.^[561] This is mentioned in article 4 of the Assize of Northampton, an ordinance issued by Henry in 1176; and this earliest known reference probably marks its origin. Procedure, essentially similar to, though not quite so speedy or informal as, that already described was thus put at the heir’s disposal. If successful, he took the lands temporarily, subject to all defects in his ancestor’s title, leaving as before the question of absolute ownership to be determined (if challenged) by the more cumbrous machinery of the Grand Assize.

325(c) The assize of darrein presentment. Advowson or the right of appointing the incumbent to a vacant church benefice was then, as now, a species of real estate. Such patronage was highly prized, affording as it did an opportunity of providing a living for a younger son or needy relative; or it might be converted into ready cash. Disputes often arose both as to the possession and as to the ownership of advowsons. Any one who claimed the absolute right or property as against the holder must do so by battle or the Grand Assize, exactly as in the case of any other form of real estate; and the Charter says nothing on this head.^[562] On the other hand, the less vital question of possession might be more rapidly determined. If a benefice fell vacant, and each of two proprietors claimed the patronage, the Church could not remain without a shepherd, for years perhaps, until the question of title was decided. No; the man in possession was allowed to make the appointment. But who was the man in possession? Clearly he who had (or whose father had) presented a nominee to the living when the last vacancy occurred. Even here there was room for dispute as to the facts. Twelve local men decided which claimant had actually made the last appointment (the “darrein presentment”); and the claimant thus preferred had a legal right to fill up vacancies, remaining in possession until someone proved a better title by battle or the Grand Assize.

All three forms of the petty assize were merely new applications by Henry Plantagenet of the royal procedure known in England, since the Norman Conquest, as inquisitio or recognitio.^[563]

III. The Assizes in 1215. The petty assizes, when invented by Henry II., were resented bitterly as innovations; 326but public opinion, half a century later, had abundantly vindicated the wisdom of this part of his reforms. The insurgent barons in 1215 were far from demanding their abolition; their new grievance was rather that sessions of the justices of assize were not held often enough. They prescribed the way in which these assizes, now grown so popular, were to be held, and several points were specially emphasized. (1) No inquiry of the kind was to be held elsewhere than in the county where the property was situated. Justice was in such cases to be brought to every landowner’s door, although pleas of the Crown might still follow the king, and ordinary common pleas had to be taken to Westminster. This was intended to save expense and to meet the convenience of litigants, of those who served on assizes, and of all concerned.^[564] Within two years, however, it was seen that this provision went too far. It was more convenient to hold certain inquiries before the Bench at Westminster than in the particular locality. The reissue of 1217 therefore made two important modifications: (a) All assizes of darrein presentment were thereafter to be taken before “the Justices of the Bench.” (b) Any assize of novel disseisin or of mort d’ancestor revealing points of special difficulty, might also be reserved for the decision of the Bench. An element of uncertainty was thus introduced, of which the Crown took advantage. In a reported case of the year 1221 it was decided that an assize of mort d’ancestor should be held in its own county, not at Westminster.^[565]

(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 327having their disputes amicably settled. Such excessive frequency was quite uncalled for, and involved unnecessary expense on the king, and an amount of labour on his officers out of all proportion to the good effected. The Charter of 1217, accordingly, provided that a circuit should be made only once a year. In 1285, however, it was enacted that they might be held three times a year, but not oftener.^[566]

(3) The Charter speaks of the two justices and of the four county knights, but says nothing of the twelve knights from the immediate neighbourhood of the disputed property. The omission has no special significance. Magna Carta had no directions to convey on this matter, and therefore it kept silence; but the presence of the twelve must have been presumed, since their verdict formed the essential feature of the entire procedure.^[567] The twelve formed the jury, and the two justices were the judges, while the chief duty of the four was to select the twelve. The chapter directed the justices “to hold the assizes along with the four knights”; but it does not appear whether the latter were to sit as local assessors of the court, or to serve along with the twelve recognitors, or to act as a link between the two.

(4) One fact about them was clearly stated, namely, the mode of their appointment. The four knights were to be “elected” in the county court (cum quatuor militibus ... electis per comitatum), and much emphasis has been laid on this provision by historians searching for ancient prototypes of modern institutions. These knights have been warmly welcomed as county magistrates elected on a more or less extended suffrage.^[568]

As the provisions of the reissue of 1217 are more carelessly expressed, and as in particular they contain no word 328implying “election,” it has been assumed that a change in the mode of appointment was intended; that a step tentatively taken towards representative local government in 1215 was deliberately retraced two years later.^[569] “Electus” however, in medieval Latin was a vague word, differing widely from the ideas usually associated with a modern “election,” and applied indiscriminately to all methods of appointment or selection, even to the proceedings of officers engaged by Edward I. to compel the enlistment of the best soldiers available for his army. The twelve knights were to be “appointed,” not “elected,” in the county court, and it remains doubtful whether the sheriff, the magnates, or the body of the suitors, would have secured the chief share in the appointment. No evidence is forthcoming that any special importance was attached in 1217 to the use of the word “electus,” and its omission may have been due to inadvertence.

IV. An Erroneous View. Henry Hallam, commenting on this chapter, seems to have misapprehended the issues at stake. "This clause stood opposed on the one hand to the encroachments of the king’s court, which might otherwise, by drawing pleas of land to itself, have defeated the suitor’s right to a jury from the vicinage: and, on the other, to those of the feudal aristocracy, who hated any interference of the Crown to chastise their violations of law, or control their own jurisdiction."^[570] Hallam thus interprets the chapter as denoting a triumph of the old local popular courts over both the king’s courts and the courts of the feudal magnates. It denoted no such thing, but marked in reality a triumph (so far as it went) of the king’s courts over the tribunals of the feudal magnates—over the courts baron, as they were afterwards called, the most important of 329the three courts into which manorial jurisdictions afterwards split. The assizes, it is true, were to be taken in the county court, but they were to be taken there by the king’s justices, not by the sheriff. The county courts by this time had fallen completely under the domination of the king, and were to all intents and purposes (and in especial for this purpose) royal courts. The present chapter is thus conclusive evidence of the triumph of the king’s justice over all rivals in three important groups of pleas. Royal justice was the best article in the market, and, in spite of all defects, deserved the popularity which in this province it had evidently won, even among the barons whose jurisdiction it was superseding.

V. Later History of the Justices of Assize. Whatever may have been the exact date when there first went on tour throughout England travelling judges entitled to the description of “Justices of Assize,” such circuits, once instituted, have continued to be held at more or less regular intervals from the beginning of the thirteenth century to the present day. Their jurisdiction steadily widened under successive kings, from Henry II. to Edward III.; and they gradually superseded the older Justices of Eyre, taking over such of their functions as were not inconsistent with the change that was gradually transforming the medieval into the modern system of justice.^[571] It was the custom for the Crown to issue new commissions to the justices as they set out upon each new circuit. Five distinct types of such commissions conferred jurisdiction over five different departments of judicial business.

(1) The commission of assize was the earliest of all, authorizing them to hold petty assizes, but not the grand assize. Of this sufficient has already been said.

(2) The commission of nisi prius conferred a wider civil jurisdiction, embracing practically all the non-criminal pleas 330pending at the time in the counties which they visited. These powers were originally based on the terms of the Statute of Westminster II., which became law in 1285,^[572] and directed that all civil pleas (under certain exceptions) might be heard in their own counties. Thenceforward most ordinary suits might be tried either locally before the justices of assize, or else before the bench at Westminster. The statute directed, however, that sheriffs, in summoning jurors to Westminster, were only to do so conditionally—jurors were to attend there unless already (nisi prius) the justices of assize had come into the county; that is, if the justices arrived meanwhile in the locality, the jurors and all others concerned were saved a journey, and the pleas in question were heard on the spot. The commissions under which the travelling justices heard locally such civil pleas were therefore known as “Commissions of nisi prius.”

(3) The commission of gaol delivery was, subsequently to 1299, invariably conferred on the justices of assize, in accordance with a statute of that year,^[573] authorizing them to inspect all gaols and enquire into all charges against prisoners, and to set free those unjustly detained. Previously, similar powers had been spasmodically conferred on separate commissioners, sometimes quite unfit for such a trust, who had too often abused their authority.

(4) Commissions of Oyer and Terminer, issued spasmodically from as early a date as 1285,^[574] to more or less responsible individuals, were from 1329 onwards conferred exclusively on the justices of assize, who thus obtained authority^[575] “to hear and determine” all criminal pleas pending in the counties they visited. This, combined with the commission of gaol delivery, amounted to a full jurisdiction over crimes and criminals of every kind and degree; just as the commissions of assize and nisi 331prius combined gave them full jurisdiction over all civil pleas.^[576]

(5) The ordinary commission of the peace was invariably issued to the justices of assize from the reign of Edward III., conferring on them powers similar to those of the local justices of peace in every county which they might visit.

By a process of the survival of the fittest the justices of assize, from the small beginnings referred to in John’s Great Charter, thus gradually gathered to themselves the powers exercised originally by various rival sets of commissioners; and they have continued for many centuries to perform the functions conferred by these five different commissions, forming a characteristic and indispensable part of the judicial system of England.^[577]

CHAPTER NINETEEN.

Et si in die comitatus assise predicte capi non possint, tot milites et libere tenentes remaneant de illis qui interfuerint comitatui die illo, per quos possint judicia sufficienter fieri, secundum quod negocium fuerit majus vel minus.

This supplement to the preceding chapter prescribed the course to be followed when the press of other business 332had prevented some of the assizes on the agenda from being disposed of on the court day. The shiremoot lasted for one day only, and to hold an adjourned session of all the suitors on the morrow would inflict hardship on those whose presence was required elsewhere. The framers of the charter were met by a dilemma in seeking to combine the rapid dispatch of business with the minimum of inconvenience to those who came to make the court.

The Articles of the Barons had made two definite demands not readily reconciled; namely that none save jurors and the parties to pending suits should be summoned to meet the justices of assize on their quarterly rounds (article 8); and that assizes should be “shortened” (article 13), which simply meant that the law’s delays should cease.

The terms of Magna Carta, as befitted a carefully-drawn, business-like document, were more precise. They made it clear that assizes in the normal case should be held in the county court—a point upon which the Articles had been silent. This was a salutary provision, since a healthy publicity accompanied the proceedings of the full shire-moot. Nothing was said of “shortening” the procedure; and the Charter showed its appreciation of the fact that there might be more business than could be got through in one day. If that happened, a compromise must be made between the claims of litigants wishing their pleas hastened and the desire of other people to be discharged from further attendance. The justices were directed to complete their labours on the morrow, but were forbidden to retain anyone in attendance except the actual parties to suits and a sufficient number of jurors. Those whom Magna Carta thus compelled to wait a second day were exactly those whose presence the Articles had stipulated for upon the first day—not admitting, indeed, the possibility that a second day might be required. The discrepancy between the schemes of the two documents might be explained on the supposition that the device of timing the visit of the justices with the date of holding 333the monthly shiremoot was only thought of after the Articles of the Barons had been sealed.^[578]

The Charter of 1217 made a different provision for the same contingency. Unfinished assizes need no longer be taken in their own county on the day following the county court, nor, indeed, on any other day. The judges received full authority to bring them to a conclusion elsewhere on their circuit according as it might suit their convenience. This concession to the justices, taken in connection with the further provisions of 1217, reserving all darrein presentments, together with other assizes of any difficulty, for the decision of the bench, shows a comparative disregard of the convenience of jurors, who might, in the option of the justices, find themselves compelled either to follow the assizes from shire to shire, or else to undertake the irksome journey to Westminster, from which the Charter of 1215 had relieved them.^[579]

Liber homo non amercietur pro parvo delicto, nisi secundum modum delicti; et pro magno delicto amercietur secundum magnitudinem delicti, salvo contenemento suo; et mercator eodem modo, salva mercandisa sua; et villanus eodem modo amercietur salvo waynagio suo, si inciderint in misericordiam nostram; et nulla predictarum misericordiarum ponatur, nisi per sacramentum proborum hominum de visneto.

This is the first of three consecutive chapters which seek to remedy grave abuses connected with royal amercements. To understand fully what these were requires some knowledge, not only of the system of legal procedure of which they formed part, but also of previous systems.

I. Three stages of criminal law. The efforts made in medieval England to devise machinery for suppressing crime took various forms. Three periods may be distinguished.

(1) The bloodfeud. The earliest method of redressing wrongs of which any evidence survives was the practice of retaliation, or the bloodfeud. The injured man, or his heir if he were dead, took the law into his own hands and exacted satisfaction by the aid of battle-axe or spear. This right of vengeance, formerly clothed with the entire sanction of the law, had practically disappeared before the 335dawn of authentic history in England; but its previous existence may be confidently inferred from certain traces which it left on the laws of a later period.

(2) Fixed money-payments. At some early, but uncertain, date it had become customary to accept money in lieu of vengeance. The new practice, at first exceptional, and applied to cases only of accidental injury, was gradually extended to all cases in which the wronged individual was willing to accept a compromise. It was made compulsory on evil-doers to offer solatium in money for every crime committed, and finally it was made compulsory also upon the injured man to accept it when offered. At this stage the right of private revenge had become almost a thing of the past. It was lawful only after the aggrieved individual had demanded, and been refused, compensation at the recognized rate.

Various codes formulated intricate rules for determining the amounts thus payable. Each man had his own money value or wer (from the simple freeman, reckoned at 200 shillings, up to the prelates and lay nobles, estimated at much higher figures). These were the legal values at which each man’s life was appraised. Smaller wrongs could be compensated by smaller sums in name of damages, known as bots: so much for a foot, or an eye, or a tooth. The king or other feudal lord exacted further payment from the wrong-doer, under the name of wites, which are sometimes explained as the price charged by the magistrate for enforcing payment of the wer or bot; sometimes as sums due to the community, on the ground that every evil deed inflicts a wrong on society in general, as well as upon its victim.

(3) Amercements. A third system succeeded. This was of extreme simplicity and differed widely in many ways from the complicated system it superseded. It is found in full working order very shortly after the Norman Conquest, but was still regarded as an innovation at the accession of Henry I. It is known as the system of amercements. None of our authorities contains an entirely satisfactory account of how the change took place, 336but the following suggestions may be hazarded. The sums demanded from a wrong-doer, who wished to buy himself back into the protection of the law, and into the community of well-doers, became increasingly burdensome. He had to satisfy the claims of the victim’s family, of the victim’s lord, of the lord within whose territory the crime had been committed, of the church, mayhap, whose sanctuary had been invaded, of other lords who could show an interest of any sort, and finally of the king as lord paramount. It became practically impossible to buy back the peace once it had been broken. The Crown, however, stepped in, and offered protection on certain conditions: the culprit surrendered himself and all that he had to the king, placing himself “in misericordiam regis,” and delivering a tangible pledge (vadium) as evidence and security of the surrender.^[580]

Although in theory the wrongdoer put his property unreservedly at the king’s disposal, there was a tacit understanding that he should receive in return, not only a free pardon, but also the restoration of the balance of his effects, after the king had helped himself to a share. Such a course, at first optional, would gradually come to be followed with absolute uniformity. By-and-by, it was assumed that every culprit wished to avail himself of this means of escape, and thus the words “in mercy” were written in court records as a matter of course, after the name of every one convicted of a crime.

It is easy to understand why the Norman kings favoured this system; for the Crown thus got whatever it chose to demand, while other claimants got nothing. Gradually, then, the old complicated system of wers and bots and wites became obsolete and was in time forgotten altogether; the system of amercements reigned in its stead. Strictly speaking, the man’s life and limbs and all that he had were at the king’s mercy.^[581] The Crown, however, found that it might defeat its own interests by excessive greed; and generally 337contented itself with exacting moderate sums. Soon, rules of procedure were formulated for its own guidance. The amounts taken in each case were regulated partly by the wealth of the offender, and partly by the gravity of the offence. Further, it became a recognized rule that the amount should be assessed by what was practically a jury of the culprit’s neighbours; and attempts were also made to fix a maximum.^[582]

Thus a sort of tariff grew up, defining the amounts to be exacted for various offences of most general occurrence. The Crown and its officials usually respected this in practice, but never formally abandoned the right to demand more. Such payments were known as “amercements” and were always technically distinguished from “fines” (or voluntary offerings). Records, still extant, of the reign of John show us that for very petty offences, men were constantly placed “in mercy”; for example, for failure to attend meetings of the hundred or county court; for false or mistaken verdicts; for petty infringements of the king’s forest rights; and for a thousand other trivial faults. Every man who raised an action and failed in it was amerced. It will be readily understood how important it was that these amercements, forming so tempting a source of revenue to the exchequer, should not be abused. The Charter of Henry I. (chapter 8) had promised a remedy, drastic indeed but of a reactionary and impossible nature. He there agreed to abolish altogether the system of amercements (then of recent introduction) and to revert to the earlier Anglo-Saxon system of bots and wites, already discussed. This promise, like others, of Henry I. was made only to be broken.^[583]

338II. Magna Carta and Amercements. All classes had an interest in this subject, since no one could expect to pass through life (perhaps hardly through a single year) without being subjected to one or more amercements. Three chapters of Magna Carta accordingly are occupied with remedies. Chapter 20 seeks to protect the ordinary layman; chapter 21, the barons; and chapter 22, the clergy—thus vaguely anticipating the conception of three estates of the realm;—commons, nobles and clergy. The “third estate” is further analysed for the purposes at least of this clause, into three subdivisions—the freeman, the villein, and the merchant.^[584]

(1) The amercement of the freeholder. The great object of the reforms here promised was to eliminate the arbitrary element; the Crown must conform to its own customary rules. With this object, various safeguards were devised to regulate the amercing of freemen. (a) For a petty offence, only a petty sum could be taken. This was nothing new: the records of John’s reign show that, both before and after 1215, very small amounts were often taken: three-pence was a common sum. (b) For grave offences, a 339larger sum might be assessed, but not out of proportion to the offence. (c) In no case must the offender be pushed absolutely to the wall. His means of livelihood must be saved to him. Even if all other effects of the defaulting freeman had to be sold off to pay the amount assessed, he was to retain his ancestral freehold (or “contenement,” a word to be afterwards discussed). He might, however, find himself liable for a large sum which he had to pay off by instalments during many years. (d) Another clause provided machinery for giving effect to all these rules. The amount of the amercement must be fixed, not arbitrarily by the Crown, but by impartial assessors, “by the oath of honest men of the neighbourhood.”

It seems probable that all these provisions were declaratory of existing usage, that is of the usage of John’s reign; but, apparently, a different procedure and one less favourable to wrong-doers had been in vogue, so recently as the reign of Henry II. Amercements had then been assessed, not by local jurors but, by the barons of the exchequer, who might, however, where arrears were still due, revise their own findings of previous years.^[585]